order confirming the arbitration award and remanding this matter to the district court for an evidentiary hearing we do this fully cognizant of the deference afforded arbitration proceedings but here this appeal is not based on a challenge to the conduct of the arbitrators or their factual or legal findings or conclusions instead this appeal focuses on section ten a one of the federal arbitration act  absolutely the conduct itself was the perjurers the statements made by mr ackerman during the course of the arbitration proceeding which were in fact lines we believe that we would be able to establish before the district court it didn't be arbitrators see that ask about that and then made a decision against you we have out making any explanation of it you could have asked for an explanation and if that explanation had in some way linked to the statements that would be one thing but since it didn't aren't we bound to say that the arbitration stands  there is any way in which we arbitrators could have if you're dealing with the conduct of the arbitrators or the legal conclusions or factual findings of an arbitration panel i would say that the foresight decision which is the fifth circuit session would control that sort of is under that ruling nothing has says the arbitration is bad i completely understand your honor's question then the issue here is not whether we were able to establish during the arbitration proceeding that mr ackerman lied about again the status of this investigation from finra and whether finra affirmatively told him that they found nothing wrong with certain of his traits now that thinks is his lie he didn't lie about the lost wages which was the subject of the arbitration lying about the lost wages is inextricably intertwined why because the wage claim was completely subjective always second did did his employer what i asked you what i asked you was is if the buyer and if the ban trade violated federal rules was he still entitled to compensation for other trades for which he claimed he had not been compensated he could have been absolutely now a so so so then the legitimacy of the bond trade did not go to his entitle it to payment it absolutely did because how said you just told me that it didn't because whether he was to be paid on particular trades or not whether he was going to be entitled to be paid on a trip with a particular subjective testimony and his testimony was you was intel the five point five what did he get way to claim that was what it was so slightly more than one million one point was therefore apparently the arbitrators didn't believe everything he said that's true there you go so so that's the point the judge worsley is making they judge ted they found it wanting to the amount of about four million dollars and awarded what was left they judge his credibility but in the absence of the truth about what finra told him or did not tell him incredibly difficult to assess it isn't that that is exactly right it is extremely difficult to assess and when it is difficult to assess unless we have something which you didn't ask  to tell us about we say ok you are you are bit for years and you did it and less you are say that any time there is something wrong we should throw out actually honor the task that supplied by eight other circuit courts is not whether the perjury or fraud ultimately affected the outcome of the arbitration that is not the test that's applied in those courts the test is whether the perjury or fraud relates to an issue in the arbitration point perjury poisons the fountain of justice the issue here is to the extent the arbitration panel was not required under federal rules to provide a reasoned explanation for the i'm sorry i didn't ask for yours and to both parties would have to ask for your honor and ninety percent of the cases in favor of that doesn't happen and it would give one party an opportunity to essentially hold back not unless there is no reason to say i am i understand but that doesn't mean that the court should infer you know reasons for the in other words in arbitration we can infer regulate you can i think that when you're talking about a challenge to an arbitration decision that's based on say a factual finding or a conclusion of law you are certainly able to assess whether the arbitration or not has information before even in do seasons of district courts if there is perjury we don't necessarily reverse the trial just said perjury poisons very nice language but even in a district who are who you know much more supervise who you forward we don't reverse that so why should we first let's remember how this came up during the proceeding and arbitrator herself one of the members of the panel specifically asked mr ackerman is that finra proceeding is the offender investigation still pending clearly indicative of the fact that she found it to be a material issue in the arbitration second here responded not clear if he she asked the question we would have to assume that because she asked the question she believed that she needed the answer to the question i think that's a fair reading just the same as saying whether they found him twenty percent credible or eighty percent credible the second point is in response to that direct question from the arbitrator again a question that has to do with an investigation by a regulatory body into his training he answered falsely that the matter was not pending and he didn't do it in a way that was a quizzical he didn't do it in a way that sort of couched it to say i don't remember i think it's not he said no and then he gild the lily then he says and not only that but i told finra about the that my employer was investigating and they told me that there was nothing wrong with it he had always linked the retaliation claim that he was raising with his wage claim he had always done it  by telling the panel i'm sorry by telling the arbitration panel that finra made enough berman of a statement to him that he had done nothing wrong which we believe we will clearly be able to establish before the district court that it was a lie again we weren't given the opportunity to  an evidentiary hearing before the district court by doing that he assuaged whatever concern that arbitrator had about that internal investigation about those upon trades in a manner that could do nothing but improve his credibility or bo that a legit misstatements made during an arbitration without any proof that those misstatements were knowingly false at the time they were made can serve as the basis for back which are going toward without showing any materiality on the impact of the award and neither the law nor the facts of this case support such an unprecedented extension of a court's ability to turn in to turn over an arbitration or we don't have the standard do it for materiality in the circuit the circuit does not but both the district courts of the circuit and many other circuit courts have formulated a test and however it's phrase whether it's related to material issue in the arbitration or whether there is a nexus to the outcome of the arbitration the essence of the test is the same and that's because the test derives from section ten a one of the federal arbitration act and that states that the award must be procured by fraud procured by means in the ordinary definition as a result of and that's why the nexus is tied to the ultimate award with you know if he had lied about the wage claims claiming wages that he was entitle to how that would be material in this particular  hypothetically certainly it would be material but first of all there is no showing that there was a lie at all but even if there was a lie it had absolutely no impact on the outcome of the arbitration what do you what do you say to counsel's last point that the arbitrator asked about so it obviously was material to her well this was cross examination and various topics were discussed in the arbitrator asked about it and mr ackerman testified to what he believed at the time and remember at the time he had testified before the finra in regards to the first o t r which was made of twenty fourteen that was eighteen months before the arbitration he did receive his second request until december of tw two months after the arbitration so at the time he testified there was radio silence from finn are for a year and six months so when he was asked about the status of the investigation he stated that it was over because that's what he believed at the time and so far to date appellants have presented absolutely nothing to discredit that testimony so it's just examined the one and only document the forms the basis of their perjury claim which is that a w c and that is at a fifteen eighty four in the document the first thing that you'll note is the date on that document which is february twenty sixth two thousand and sixteen that's four months after the arbitration and in terms of the facts and violet's of conduct that stated there in it says that on the summer fifteenth and resend the second request for an interview to mr ackerman that was two months after the arbitration mr ackerman declined to attend that interview and as a result it's by federal rules that if you decline to attend an interview you're permanently barred from the securities market mr ackerman who had moved to california and wasn't practicing in the securities market declined to attend that interview in maryland and as a result he consented to this bar there is nothing in this document to shed any light on whether mr ackerman knowingly lied at the time of the arbitration that either the investigation was over or that finra told them there was nothing improper about his trading activity i ask you to turn to your cross appeal and to you have any new york cases that actually apply in a situation like this arbitration your honor i've not been able to find a new york appellate division decision which interpreted section one ninety eight of the new york labor law to say that it covered fees on appeal as well but looking at the plain language of the law as well as the purpose of fee shifting provisions in general which is to compensate a plaintiffs in macomb hall for having to bring the action and the purpose no i'm not sure that's necessary in this case because this court can hold that just like other fee shifting statutes and there are southern district decisions saying that under other sections other i'm sorry other statutes like the aristos tattoo'd and there's case law that we cited in our brief that provides for counsel fees that those fees should be awarded on appeal as well as interpret in language in contracts it's really no different if a contract says that you get fees for bringing an action under the contract it's the same concept of saying that you bring a case under the section one ninety eight of the new york labor law if you recall looking at that statute which you wro that's actually judge rakoff never really discussed the statute in the context of fees what he discussed was this court's decision in intel chemical workers versus b a s f y and it's in our brief and and that case was decided under an unrelated statute it was the national labors management act right he did not think that the stack you that you cited to him because you did side applied he never even talked about it because certainly the ordinary definition of the word shall is must and so if an employee must recover their wages in the underlying claim there's no reason for them to cover attorney's fees for confirmation hearings for the appeal because that would if this rate essentially the very purpose of the statute which is to make hole a prevailing employee so when an employee gets their wage recovery presumably they can spend that entire recovery on appeals against an employer who is let's i also to address the standard that we are asking this court to announce when it comes to applying section twenty one in district court actions for motions to vacate the work as the other circuit courts have said you do not need to establish that the outcome of the underlying matter would have been different absent the fraud it is not an outcome determinative standard i understand fully the issue with respect to how intertwined all of these issues are absolutely understand but the test that's been applied by all the other circuit courts said it needs to be material to an issue in the arbitration it doesn't have to be outcome determinative now the only been asked have you previously been you previously been convicted of a crime in new york and he had indeed been convicted but he lied about it with happy grounds to vacate the award absolutely if you look would absolutely all the materiality use as to the issue of credibility as opposed to the materiality as to the issues before the arbitrators i think it's i think it's both your honor i actually think it's both if you look at the time which is is this reserved for one which is cases or multiple witness cases any time witness lies about their witness it delivers the coup de gras with regard to the test of the parties are the ones who have submitted themselves to the arbitration process though they can put in witnesses can't they difference does it make it right and is that it has an effect  know and why should it matter whether it's a party or not i think for parties it's actually more significant but in the next in the been our case in the eleventh circuit that's the leading case on this the the perjury was by an expert witness who lied about his credentials right now again  to necessarily i mean it went to as to whether they should even consider it as opposed course arbitrators i suppose can hear from an expert witnesses sochi and i'm in america it was an innocent of a lie by a party about the reason why he had left his post and left the safety features off at the gas plant those sorts of lies we believe are not like the court said social solar systems rights perjury has to have an impact and it has to have an impact in a case like this if you have any gravity in front of the trader was no we didn't know