my name is rowland us of a doe and i represent the defendant appellants the teams the local to ten affiliated health and insurance fund i'm joined at counsel table by tom says thomas a thompson this case has a protracted eleven year history before the court that senate is basically around the interpretation of a single paragraph and collective bargaining agreements this is the second time the mandate of this court the mandate of this call it directed that henri man the district court was to consider whether to exercise supplemental jurisdiction over the first two claims construed as alleging state law breach of contract in a foot no this court cautioned the district court that treating the remaining claims as contract claims rather than a receipt claims was no me a formality because the two ten may enjoy additional defenses to the state law claims including preemption now that's exactly what the the appellant's did they moved to dismiss the state law claims on the preemption grounds on the labor management relations act section three zero one the court granted that motion and then allow the un math the union mutual medical fund for bid that we prohibited by i think you did judge i think the language in the first opinion limited the district  court's consideration to state law breach of contract claims there one no more federal claims left in the amended complaint that's why this court said on remain and you should determine whether to exercise supplemental jurisdiction did we also say in any other issue that comes up we could have language like that the language in the court said you didn't take a position on any of the other issues meant they were number one collective bargaining agreements are not ordinary contracts for service in goods section three zero one claims all limited to the signatories of those collective bargaining agreements that's you know that's contrary to what we said in brown where there was not a signatory but we nevertheless said that the union was a was a actual party actually brown supports our position judge there are only two parties to collective bargaining agreements employers and the union in brown the caught hell that the employee was liable under the contract based on his conduct of complying with the terms of those collective bargaining agreements for a six full year is on a monthly basis the employer would submit contributions what remittance reports those remit and report sent this admitted pursuant to the collective bargaining agreements now arista section three zero two doesn't require an actual signature on a collective bargaining agreement it just requires that the agreement be written and the terms be explained but but in the context of the label world the union label world there are only two parties to collective bargaining agreement the employees who make the contributions and the unions who represent them and this what about the third party beneficiary which you and wise to those contracts even if this court third party actions against union funds and that's exactly what this is the you i met suit a non signatory to the agreement the two ten fine and got a judgment section three zero one b prohibits that if we were to determine that the two ten fund your client was an actual party to the c b s then to view would be an app isn't that right no that wouldn't be correct why why isn't that there are two subdivisions to section three zero one three zero one a basically says that you have to be a signatory to the agreement or a party judge and section three zero one be dovetailed with section three zero one because it says you can have third party actions against union funds why because of three zero one a the only pawed east to a collective bargaining agreement are the employers and the union if this case stands it will be at least in all of my research the first case in in the nation there are no cases cited in the district court's decision or the you in this paper is that halls of fun accountable for contributions from an employer when they're not even a party to the agreement now the important thing to keep in mind is the offending parties here where the employer is in the union yet they were in suit business the question that the that did to tend fund did not amend the collective bargaining agreements they couldn't by law the only two parties that could amend those were the employers and the union let me just ask two questions just by way to try to clarify some things in the record one of the things you argue is that the two tend fund assumed only some of the liabilities of allied funds so right do you make that argument we  make the argument that they only assume the obligation for ten cents to ten cent pass through judge because those contracts were amended before the two ten came into existence so there is a tax transfer agreement when the two funds in the two funds bifurcated it was an asset transfer agreement and that asset transfer agreement said the two ten fun was assuming the liability  participants in the allied welfare fund which was another benefit fun we didn't the two ten fund didn't take on any responsibilities across the board for the allied welfare fund in addition the district court found that the two ten fund was responsible based on its conduct the only conduct it had in this case was to pass through the ten cents because it didn't come into piece of paper that the two ten fund sign that agreed to make contributions to the euro and then that the only basis for liability is based on the two ten's funds actions and those actions only occurred after the change was made in the interim has expired you reserve three minutes for a bottle yes thank you nate amount of time one thing though has not changed and that is the contract here at issues we provide that irrevocably and unconditionally money was going into the allied welfare fund the predecessor fund for the local to attend fun and out of that money it was who's to be irrevocably and unconditionally said to my clients the trustees we've been waiting for justice for twelve years we've been living gating that extensively all the time they have thrown up one obstacle after another saying that they're not the proper party they are the property they receive the money they've had the money in their accounts for twelve years they assumed all the contractual obligations of the allied welfare phone as your honor has indicated both by contract as well as by the reply why are you not suing the contributing employers and the union i mean you can do whatever you want we're contributing to the contributing employers it was a nonevent to them they're paying the same amount regardless it was just the allocation of that now that was done by the union although frankly the record is unclear mr miranda was wearing various different hats he was the president of the union he was the trustee of the fund at the time as well but inevitably the unions would have said we don't have the money the money has been sitting in the account of the allied welfare fund was transferred to the union or to the local to ten fun to the detriment of my clients and our beneficiaries now the law is pretty clear also that we were clearly intended third party beneficiaries to this both by matter of contract law to these accounts they clearly acted in accordance with it and if they didn't feel that they were bound then why continue to remit only ten cents out of the contribution of the eight dollars that was formally done and if they didn't feel that they were obligated by anything why did they continue that over a period of years even after the collective bargaining agreements were changed without our consent i didn't even give you the ten said exactly know anything why did they give you  i don't know i don't have an answer for that i believe they could they were obligated to remit to us the fall eight dollars per employee per week and i think that the pen plastic cakes decides that too and there is reasons that the classic case advance why that's applicable and why that's true and that is exactly here where you have retirees my clients who are the benefits of the fun don't have a say in the conduct of the union also the players have a right to rely actuarially upon the specific contractual obligations basic contract law into the restatement says that you cannot change the terms of a greenman to the detriment of a third party beneficiary such as my client's union mutual medical fun without its consent which was not obtained here about the mandate issue sure mr s of in a lead off with and he's saying that  as to whether or not something was preempted the court had to decide how to determine it appropriately and given the years that this case is spanned and given the issues that have remained changed over this period of time whether you c was assumed by the local to turn fund acting as a part of actual party exactly because they do so it received benefits from the collective bargaining agreement but actual party was holding on to the money is the party that we've sued that's the local to tend fund and there is absolutely apple authority to hold that they should be accountable for the funds that from really affirmatively held that against the party you know certainly i believe through i want a lousy monetary recovery against the party as well and that's what we're saying here that i came my question i'm sorry we and we think that even if however you characterize it as an equitable order or as a monetary tuchman they clearly have to be held accountable and whether you characterize it as restitution or monetary and the same would be applicable here for them to account as an equitable remedy for the sums that they had improperly withheld and and have held onto over this period of time that would have an impact on pre judgment under state law action and which would entitle us to a breach of contract damages and interests under the but regardless i think that the purpose of preachers from the interest is to put the party in as good as position  and to reflect the equities in the situation in the equities are such here that they've held on to the money over a twelve year period of time to the detriment of our clients and our ever reaching beneficiaries just the calculation alone seems to be inflated doesn't it i mean you could i mean often what happens is a jury returns a verdict right and a damaging number of acts right you've got in tort went on for decades you've got to figure out what was the starting point but that's not here right here you could have a spreadsheet and you could probably pinpoint to the penny what the pre judgment interest is based on payments that should've been made that weren't right yes or no your honor i'm sorry to be a vase of to that but there is it occurred over periods of time when mr miranda went out to the various employers and asked them to change the collective bargaining agreements and that those payments changed over a period of time to sew the distro were properly held that the starting point was going to be april of two thousand and six and then are about thank you your honor so there was a question during mr kidneys presentation as to why the two ten fun continued to contribute the ten cents because the two ten fund is merely an intermediary and the contract was changed to say that the eight dollars should be lowered to the ten cents so as an intermediary they were merely following the contract they're there in the middle of this dispute the parties that offended the you and then meth and possibly violated the agreement with the employee is and the union those of the parties that should have been sued i don't know why they were  cite to a single case where a union fun has been held responsible and the third party action under section three zero one and i submit that the district court then cites any case either because it doesn't exist it can exist if that happens in this case i cannot stress enough how it will change the union world and collective bargaining agreement and place i on its head let me tell you why because under the eye theory every fine becomes a paucity to a collective bargaining agreement so if there are a party and they don't like what the employees in the union do to lower complying with legal theory judge under the collective bargaining agreement i don't think there's a separate legal theory the emily complying with the terms of a contract that contract being the two ten collective bargaining agreements between the employer and the two tend fun now to hear exactly exactly on point if a funds cond accepting contributions made it a paudeen to the agreement where he could be sued then those funds into via would have been liable and this quote i submit would have held differently because those funds the pension and the health fund into via accepted contributions they did the same thing the two ten funded here but this quite specifically held into via that that isn't enough you can't under three a one have a third party action against a union fine and that's exactly what's happening in this case now the other thing i want to touch on very briefly is mr kipp he's mentioned a few time restitution and equity the arista claims with this semester in this case there is no equitable relief anymore these are contracts essentially that are examined analyze restatement the only remedies here are legal remedies not equitable remedies my time's up thank you thank you thank you both interesting case