in dismissing appellants complaint in favor of arbitration because it is clear from the fourth sentence of the opinion in order of that court that it started from the assumption that the subject multiemployer pension plan had been terminated by a mass withdrawal but your honour's that is the threshold question the issue to be decided and one that falls outside the scope of a risk is mandatory arbitration provisions just like the feel confident that we could succeed in the arbitration but that is our second line of defense your honor and we should not have to be required to concede our first line of defense which is that there was a determination made as to whether the pension plan terminated and what the basis of that was that does not fall with the answer the question you asked them not entirely because some of the relief that we've requested in the complaint is not available in the arbitration like what we have for instance requested that we be considered for attorneys fees and costs which in the arbitration would be borne solely  by the plant sponsor but in this litigation would be spread out among presumably all the apple e's additionally there is the very important conception concept that if we would prevail in the arbitration the apple e's the apple e employers would be off the hook for twenty million dollars of withdrawal liability were we to succeed which would not be the case with respect to if it determined that the terminations of the plan was by amendment and not mass withdrawal such that instead of reducing benefits to participants and beneficiaries  the remaining employer apple leaves would be required to shoulder that liability that they would have had but for this scheme that they engaged in so i would say if you considered just like the decision whether a company that never contributed to a multiplayer plan is an employer against whom a withdraw liability assessment can be imposed by plan trustees as recognized by this court and other courts as a threshold question for the court so too is it and should it be a threshold question for the courts as to whether and how a multiplayer plan is terminated these are both determinations that fall outside a risk as mandatory arbitration pr here the plan trustees the union and the remaining employers all got together during two thousand and nine and conspired to manufacture a mass withdraw to shift that twenty million dollars of reallocation liability to the plaintiffs and another employer all of whom had previously withdrawn the apple lease colluded in a way that frankly also raises have partly issues to fabricate amendments to their collective bargaining agreements of most of the remaining employers to allow for them to unilaterally withdraw from the plan before the times that their collective bargaining agreements were otherwise scheduled to expire why is that something that protects you i mean i'm not under some use i can see where it would lead to your benefit if they were unable to get their act together with three years but they are able to get their act together within three years isn't that permitted under the statute well i think your honor when one reviews the abate or avoid cases like cuyamaca meats and super value that have both been cited in the breeze it can be seen that the courts have pretty much uniformly held that transactions in the normal course of events will not trigger a risk the section forty two twelve see evade or avoid issue such as occurs upon the typical expiration of a three year collective bargaining agreement which is no doubt not understanding the  answer why why and why is their inability to or why should you be protected by the fact that under their corporate document you argue that they couldn't move that fast but they were there figure out a way to do it and they do move that fast that the statute doesn't deal with that it just says whether you have the the the mass what's it called us withdraw within the three years if there's a mass withdraw within the three years then your it then you can be drawn back in under the statute but not otherwise yes but it should never they will why should you say well you know you and you should have taken longer so that we'd be off doesn't sound like an interest that you can defend you can assert well of in the normal course of the vents they wouldn't have been able to do that because their collective bargaining agreements weren't set to expire until two thousand and i'm having trouble seeing why you get to rely on them i can see maybe the people who were parties to several reasons why i think that needs to be brought to bear as i mentioned by manipulating in that way they are getting out from under a liability that they would otherwise be exposed to  permits them to do that apparently when you consider they would otherwise be tangled up in their own collective bargaining agreements and wouldn't be able to get within the three year deadline that when able to pull you back in right but they somehow are my able to do it i'm not i'm just asking what the theory is for why the but the reason i why you should be able to be protected by their inability to reason why they're able to do that raises some serious half tartly questions because they're basically colluding with the union and the trustees in a way that then if it's certain employers at the expense of others i've been thought but you're neither one of them right now we are we are the ones that are being pulled in so that you have a taft hartly right to to not have the union and the trustees favor existing employers that are contributing to plans in a way that my benefit from arbitration assumes that there was a determination by mass withdrawal which is an assumption that we say is not accurate nor should it be something that is determined within the framework of forty two one to forty two nineteen that issue of whether a plan terminated and under what circumstances really the risk of forty forty one kept a decision which congress clearly put outside the arbitron full provisions that defines the circumstances under which the reallocation liability could've been imposed in the first place thank you certainly a the mandatory arbitration provision in a recess section forty two twenty one pertains to a dispute as to a determination made under forty two one to forty two nineteen and appellants as we've just noted have indeed initiated arbitration as to the issue of whether they should be subject to reallocation liability assessment under the mass withdraw all three year clawback provision but the trustees threshold determination was that a mass withdrawal occurred and that's not one which the trustees made under forty two a one to forty two nineteen but as i've just mentioned under forty forty one cap a that section identifies circumstances by which a multiplayer plan complaint if you read the briefs in for this court and in front of the lower court and if you listen to the appellants argue here today you can easily conclude that this is also complicated it's not it's clear to us that  complexity that this case is mired in was manufactured by the appellants to the create the appearance of a novel legal issue to try to circumvent to risk his well established arbitration requirements and i think  the best way to look at that is to look at the prayer for relief that's complaint within their complaint if you look at the prayer for relief they don't ask for anything from the employers with the notable exception of the fact they want us  to jointly and severally share any kind of expenses that plan would incur with the trustees besides that they don't ask for anything or have asked for money damages they're not asking for us to make them whole there's nothing that we can give to them they added us for the sole purpose of creating additional parties to try to get around arbitration requirement that the other thing that i think is notable is that they they sued the employers with three counts   there they have no standing to bring up early transaction claim that's only department of labor and section thirty two or thirteen ninety two c or forty two twelve c of a ressa only applies to as a collection tool the trustees can is required for all of the counts to do we need to get into those issues that you're discussing right now well no and i think that i think that the district court what they essentially what the record essentially did was to strip out the parties that are necessary here be to put the question of arbitration sort of at the end of the analysis and figure out whether any of these claims could forever could ever be and evaluate on  really don't i'm taking your answer to judge givens questions to be we can do it the way the district court did it or we can do it the way judge givens either way is principled is acceptable and would be ok with you we obviously would prefer to have this have some of those cases thrown out of court didn't distinguish between the employers and the trust only to the extent that they required to be arbitrated which is a distinction in of itself between the trust i mean that the district court opinion so just go in and do your your your arbitrations and the issues will be resolved arbitration and so i'm completely clear of your answer there there might be a way which is even more favorable to your client opinion is i'm not going to get into the standing in the who the parties are and so forth just an arbitrator's and then get to those issues after the arbitration you seem to be saying that's fine because the arbitration make all that stuff go away so it's fine to do it that way that's true but i think it's also important to recognize that the reason that the district court did that is because all of the other point the district court could have said we run parallel tracks that you have your claims against employers and their claims against the trustees and will allow all parties named in this lawsuit cooperate fully with the arbitration proceedings and comply with obfuscate every requests so there's no distinguishing at all between trustees that employers in the order that there e we are generally in agreement i want to emphasize just the bare very brief point i on and perhaps on your question of which way should we go simply send it to arbitration or deal with the other the other claims i think it could be handled either way but one of the points i want to make is judicially cami and efficiency which is what the rule in thinly truck line which was announced just five months ago that's what that case emphasized the case clearly needs to go to arbitration but on the questions of efficiency and economy i think some of these claims that clearly fail for standing or for failure state cause of action if the court addressed those on an alternative basis it could serve economy and efficiency by the district court that was my question as well i acknowledge that ordinarily the court would not reach what has not been reached below but because of the primary purpose of this arbitration mechanism and how do you rail the goals of the fish and sea and economy have become here we think this is a case where a special approach is warranted and to that extent i may differ from from my colleague when you when you step away from the minutia here for a moment finley truck line reemphasized a rule that had existed for some time which is that there should be arbitration first because of  economy and efficiency this complaint would stand that long standing rule on its head it actually asked the district judge to dismiss the arbitration as moved that's what that was the relief they sought completely supplant the arbitration that cannot be reconciled with finley truck line is just impossible to put appellants simply don't respond to the goals articulated in in finley truck line which is that  arbitration if it's held first may pared down the issues may dispose of some issues and that a minimum will create a factual record they've articulated no reason why those goals can't be achieved here really thank you very much you're honored my name is john don representing the pension plan in this particular argument and the plan obviously been involved in this from the very beginning and has followed a lot of statutory procedures to step this whole process in motion position today any different from that of mr steele mr alexander and we believe that they have accurately set forth process which this court recognize and family that arbitration supreme they are straight answer is you're you're there's not a the statute is very clear is designed in such a way to allow the claw back and that is designed to protect the participants of the plan who are the ones in these kind of situations who we should be looking at that's what the trustees had in mind they wanted to make sure they did the most they could possibly do under the circumstance we had which is not good for ted the participants of the prison that's what this case is about that's what the quote that has said over and over again the statue was designed to do that and the corporate provision is just one other provide that additional protection and that's what we're here to try to protect  it please court to end the key for the seven individual trustees her defendants in the lawsuit i agree with my colleagues at the police table on the arbitration issue i would note that in the district court's  opinion there is a footnote to the fact that the duties of the individual trustees are to the plan participants and the beneficiaries and set forth in a recession and not to employers and i think that's an important  so we have a situation here where a recess section forty two nineteen see why he doesn't talk about the union being involved in connection with the mass withdrawal determinations jest the plan trustees that's what makes this a conspiracy and that just an agreement or arrangement among the employers if the trustees were sincere about their interest in protecting the participants and beneficiaries why would they not explore a plan terminations instead of going along with the mass withdrawal as part of that the negotiation or scheme if you will that was going to result and does result in a reduction in benefits for participants and beneficiaries under forty forty one cap a a two d i believe and what makes this complicated is the secretive nature of what transpired if the appellant's had known what was in the works they might have initiated a federal court action earlier on the evader avoid but we didn't find out about this until after we had engaged in some discovery in the arbitrations required to give you notice no but i'm just saying that in the course of events the arbitration that we initiated might not have been the first thing that occurred so that the court might have been looking at an issue without pending arbitrations in the process in terms of efficiency and economy of pursuing the arbitrations again this is not your ordinary situation that findlay was looking at and that the exceptions that  addressed were focused on which at that which had to do with a dispute as to whether the terminate a dispute between an employer and the plant sponsor with respect to a determination made under the arbitron will range forty two a one to forty two nineteen and again just as the court has found that in the player that was not participating in the program should not be pulled in there but should have a separate right to have that determination made by the court so too should the appellants have a first right from the courts to make a determination as to whether that mass withdrawal was valid or if there was some other basis upon which the terminations occur appellants have asserted claims against parties who cannot be parties to the pending arbitrations it just happens to be a matter that the judge poster recruited the other remaining employers to be willing to participate in the arbitration discovery process that makes that a little bit unusual but then the normal course that would not be the case further there are other third parties the actuary the accountant who  also involved who were not part of that order this is not a two party dispute between the employer and the plant trustees to which the mandatory arbitration provisions were contemplated and we do have due process concerns if you have any adverse result in any one of the three arbitration it will be back up to the courts and i don't see where you're going to get any judicial economy out of that process again although congress recognized that contributing employers might come together by an agreement or arrangement to cause a mass withdrawal the fact that the mass withdrawal results in reduction of planned benefits strongly suggests that congress did not anticipate the plane trustees who were supposed to protect participant rights would participate with those employers and the union in bringing about a mass withdrawal certainly as i said the statute only references an agreement or arrangement among contributing employers and as a as i mentioned earlier the fact that if we were to print prevail in those arbitrations it is going to be the other remaining employers that are relieved of twenty million dollars of withdrawal liability that would otherwise they would otherwise have had to shoulder thank you very much we appreciate the argument you've given will consider the case carefully since there are no other cases