good morning your honour's my name is catherine dixon and i'm pleased to be able to present this argument on behalf of plaintiffs appellants michel roux investment take mr ruin mr patel are present in the courtroom this morning  i'd like to reserve five minutes of my time for rebuttal and i understand it's my obligation by keeping track well as the clock speed efficiency and finality no appeal suppose it hallmarks of arbitration when massimo imposed arbitration on its employees and compel these plaintiffs to arbitration and when the arbitrator massimo itself was bound to live with the results of the arbitration but here we are six years and millions of dollars arbitration only when it wins and it was satisfied with justice neil only when it won can't we ask you a question much assume for a moment that the district courts bias ruling is not sustainable what do we do with a punitive damages award that appears to be unconstitutional want to face it's sixteen to one in a unconstitutional in amount not not just not that there was an award but it amount is there anything a court can do in this circumstance no if it were one hundred sixty million would you say the same thing terms of its amount allows a court to to intervene but really the law from this circuit lags steen being the most recent case to address this says it is not the business of the courts to determine rated within the law well sixteen sixteen to one to supreme courts told us it will rarely be it will really comport with due process to go bust single digits and frankly with all respect to the to the arbitrator of your clients position the amount of reprehensible conduct here seems to be relatively low the reprehensible conduct here was not relatively low this was a company that knew that its device was not performing in doctors offices and on very vulnerable patients nephrology patients pediatric open but yet to be sure let's assume that's true and let's assume that the patients suffer damage have a problem in the other case with that but we'll get back to that in a little while your clients aren't entitled to recover a period of damages because of potential harm to others as you know if you have precisely what the supreme court said in state farm quote in the court say you couldn't you couldn't contend that other members of the class might as a bit other people outside of the of the group might be harmed because that would give rise to double punitive damages no what what occurs in a whistleblower case which always permit punitive damages is two kinds of harm not just one there is harm to the individual who is being forced to make misrepresentations about a product so they're out in the market they're destroying their good name there they're really concerned about what's happening or could happen to the patients who are being diagnosed with these devices there was a young girl who was sent home who needed a blood transfusion this device improperly detected what was going on so so there are people so let's assume i don't but this is when you you know you couldn't convince me if i were the trial judge in a regular case that sixteen to one was anywhere near the appropriate level if your damages here you told me before if it was one hundred sixty million we might be able to intervene if it's whatever the number is here we a credible job and laying all this they did a very thorough analysis and he went through every single step very carefully did diagrams i've excessive not what what they what they did what these folks had to go through and it's all laid out there and they give you  say the judge i mean the arbitrator in this case but he was a judge but at some point supreme courts told us that a punitive damages award violates due process and so i'm trying to i'm trying to figure out where those two things intersect well in this case you're looking at three things and you're trying to calibrate them it's kind of a sliding scale so you look at the amount of compensatory damages they were pretty low here these were good salesmen they went out they got jobs right away so you have a low compensatory award taken care of in the punitive damages calculation and then you have to look at the deterrent and punishment a fact you have to look at and he did all those things and that's what gives me trouble but he ended up with a number that the supreme court's told us is presumptively unconstitutional but it's he got past the presumption with the factors that he applied here and it fits within the employment cases that we were and other cases that we were looking at so for example you have a lower ratio if the compensatory damages are already really high robey versus mckesson a bunch of the other cases that we briefed so you're not going to see a multiple in the ten to twenty range if the compensatory damages are already so high you know i took you off track i know that i did and part of a large part of the briefing is about bias so i don't want to i don't want to monopolize your did how should judge cormac have determined whether there was evidence partiality does he does he do that do we does what is standard of review obviously the judge neal turned down the request to recuse himself so press correct hours before the hearing was to take place long after the judge and the judge responded and the died he got it late at night and he was up there and then to send that out that night finality enclosure were important to justice neil at that point once the underlying merits award finding a predicate for punitive damages was issued massimo made motion after motion tried everything asked the judge to over our ninety day study this is the one they had just accused of so much violence that he shouldn't be allowed to finish the arbitration and they say we want you to run our scientific study will offer you that right now after they've made the bias challenge what that shows you is the bias challenge was not credible it was not reasonable and that is what justice neil found and now you want to save some time for a but i want to ask you just one quick question the district court here didn't reach the should we go back to the district court and spend another two years on the six year case to see what the district court has to say when the standard of review is going to be to no vote anyway you have all of the briefing in our supplemental excerpts of record you right i was the one who argued in the district court on the evident partiality i want to address first of all the standard of review the standard of view is they know but not with regard to the findings of fact there are numerous findings of fact which are not challenged as clearly erroneous in this case for example the findings of fact by judge carney that massimo did not know of the situation with the arbitrator and his brother and raised it immediately probably before then and what is that finding of fact based on was there an evidentiary hearing before the trial no the district court here there was submission of numerous declarations from both sides on that exact subject so given the fact that we're just reading a paper record why quite can't we why do we give any deference to the finding of facts because under an assembly bessemer city in this well known that the clearly erroneous rule applies the findings of fact even though the findings of fact come from a documentary record so it doesn't change the nature of the selecting justice neil paul hastings did not know why hastings didn't handle the cases that were evolving just does it matter other does it matter whether they knew here what we have a need and is a  that says well your brother was adverse to us at some point i don't think that would require recuse so even if brought up at the beginning of the case and that's very important judge carney did not decide that question the question was who gets to decide what the but if the who gets to decide is a legal error and that's my problem with your bias case you've got a judge an arbitrator who may have made a bunch of legal errors in terms of who who decides and how things were decided but how does that demonstrate bias be what you need to have here is manifest bias or prejudice according to two hundred eighty two i think and so what's what's the demonstration of bias here he may have ma mistake with all these rulings all except that for present purposes what does not demonstrate bias first of all the statutory language that judge barnes uses evident partiality ok fair enough well why does that demonstrate evident partiality does because there are numerous findings of evident partiality that the judge me but the judge made numerous findings but they all have to do with judge justice neo i guess because he was on the court of appeal with justice neo making mistakes making  not sending it to if it were required to go to jamz making a no i don't or did i think is problematic but those are all those are all bad judges if if they're judging showed evidence partiality this would be a two judge he make those what one is he didn't have p p didn't judge judge neal didn't come there and say hi stuck it to them he based it on the fact that they were bad rulings and that with would judge wardlaw is asking is can we find that just a clearly illegal retaliation for bringing the motion that the key to hand might have collateral stoppel consequences judge the arbitrator asked for that briefing and then he penalized massimo for bringing the very brief in he asked and that's a and i think that's a bad do when they make mistakes they look at the law they put the facts next to them and sometimes they come out the wrong way which as conning noted about that was they could tell me tell me why did why did you wait till the last minute when to send  that information to the judge and ask them to disqualify them as as judge proves you knew all that information oh yes you did judge confound to the contrary based on well when did you know and when did you know it is it's actually irrelevant whether they knew it or not the issue the standard is whether it's publicly available and that information was publicly available there is no one in the l a legal community he did not know the chesney else child had died of s found was first of all it was raised as soon as it was learned on january eighth yes the arbitrator decided himself which is contrary to his all rules that govern no it's not i will read you fifteen i it so the the standard is whether it was based on information that was not available to the parties and i would submit that this information was available certainly to see no as with respect to the representation by the brother and a google search would come up with the sids involvement well those are contrary to judge carnes findings does it matter does it matter why does it matter if this is not this is not the basis for recusal if if you found out that my brother who is a lawyer had one sued your client you could not get me recused from this kind on the matter what process we use so you brought a motion for  however it got denied was was not denied in the outrageous fashion so what else happened is what other evidence you have of impartiality well just judge barnes found three other types that were talents or acts by the arbitrator against ma massimo made a particular argument that it never made and so it penalized massimo for making an argument it never made that finding is not talent is clearly erroneous and it may be he may have made a mistake in doing that but why does that show partiality is supposed to did not challenge as clear as the findings are that he did those things what they're challenging is whether or not they demonstrate partiality and i don't know how the judge judge the district judges any better ability to decide to figure out whether they demonstrate partiality than we do now what the facts are the facts are the facts are right but whether they did whether they so demonstrate partiality has to require upsetting an arbitration award i think is a question we reviewed innova but not the underlying findings you know just because the findings were made based on the documents doesn't make them conclusions of law i mean that's the whole teaching and it's in the bessemer city rule fifty two eg governs findings of fact were gone to the source of the evidence and so in reviewing it i would reverse a district judge for doing the question isn't whether or not he made mistakes i have a difficult time buying the argument that the rulings were correct the question is when do we get to why why does to not reviewing the merits tend to lack steen is attend a four case but under ten and two judge carney is free to make findings of fact that he believes support a conclusion of evidence partiality that conclusion is they know about all the findings of fact the retaliation findings the fact that it was retaliation for just bringing the recusal letter he said was a litigation abuse then he said the key to motion was a litigation abuse then he said our view of the ca the litigation abuse even the litigation abuses can't be used to increase damages but those findings those are underlying findings that are not challenged just clearly erroneous they just say that that's kind of doesn't have the power to look at the record and make findings  fact that's their argument and of force judge carney has the power to make findings to support evident partiality to vacate the award and have a new trial when i talk about massimo getting judgement here we're just talking about it having a new arbitrator that's what we're talking about here if there were a new arbitration would it be limited to the amount of punitive damages no as judge carr and found that it undermine the integrity of the entirety of the award i don't think an arbitrator can decide just damages and not the side but let me ask if the if the if the case had ended after the damages portion if it if judge carney had said at that point i'll give you a dollar  be a lot of the findings of retaliation so but none of the findings that's what i'm trying to ask you all the finding seemed to to stand right after the recusal motion yes filed they manifested themselves after the recuse and after and after the determination of liability was made part of the calculation of damages but he didn't say those were litigation abuses which then led to the higher punitive damages amount but you're right the manifestation of the partiality is evident in the final award where the damages discussion takes place that is correct but we don't know when the bias surface is just manifested for the first time in the january punitive damages of the final award that's correct well you  damages not just to award them but he said the litigation abuses allow him to increase as additional factors increased the punitive damages and those that was improper not only improper but as judge jury found those were talents or in nature and no judge can retaliate against a party that would be awful for arbitration for people to think that you could sustain findings of evidence partiality and think that the just the court's not empowered to do that they just the court is empowered to make findings of eviden that's not the issue the issue is what i'm asking your question yes i get january eighth january brother and the brother was the adversary of massimo you see it wasn't just simply who the brother was but he should have been the point was brother who was a lawyer but thought well i've got a brother who's a lawyer i've got a grandson who's a lawyer you asked me do i know what they're doing i've got a son who's a judge i don't sit around and talk to him and  its face it doesn't apply because the information was available i think his failure to use it is evidence of his partiality he doesn't say it applied but you did before you sit down can you can you cite me any case in which federal court has found partiality based on bad legal rulings as opposed to some extrinsic saying that that later comes up well the pit case which was cited by  judge carney the pitta case is where the second circuit specifically said that the arbitrator should not decide the validity of his own recusal judge carney cited the pitta case this court has repeatedly discussed the pira case and the pira case i notice is not even mentioned in my adversaries brief so the pivot case is a case where the court specifically said on the evident partiality standard  arbitrator should not be deciding the validity of his own recusal back cases cited by judge carney for the fact that it's inherently unfair for an arbitrator to decide his own were choosing and piter there wasn't a rule like fifteen i that's why judge carney noted the fifteen i is not controlling but arbitrator should not be deciding the validity of their own we q feel and so judge just as neil's opinion the judge warlord just read from he should not have done that he judge carney found he should have just had a timeout let jams decided there was no rush to have the hearing the next day he could have delayed and i would judge carney said you're forgetting what the basis the basis of your cl very briefly just a couple of points one on the pick a case that was quite different that was an arbitrator who was deciding whether he should withdraw or be recused from a long series of is gone well it's i think it is a very different situation in our case from the pillow case second in terms of the the court is already aware of the constructive notice cases that this this court has issued a as well as others including the athena case we recently cited to this court my opponent said that there were all kinds of declarations saying that none of them knew that justice neil's brother was stephen neal there was a missing declaration it was from steven berry paul hastings steven berry is the lawyer who selected justice neil on