for unions certainly that in the discussion of the in the sci you case they don't refer to trial we could all and they proceed but they do proceed to discuss judiciary breaches so going back over this it looks to a so going back to work trial week is the issue in here is seems to me that the lower court that trowing is still good law hasn't been overruled either directly or implicitly and more importantly so i'd like to take the two issues that seem to come up though in courts that have distinguished trial we go not refuse to follow them are two points st it's the statement that trial week is only dealing with section five hundred and one b and not fi and secondly the sort of rhetorical question why would congress say that unions have to there's a demand on the unions to sue but not provide them the unions are right to sue let's take the st one st the  it seems to be clear from section that from crawl we could solve the trial we can fact consider the jurisdictional elements under five all five all one as a whole in the if you look at the decision it states that you car week seems to be saying and tech is saying that the unions have a right under state law that they are in they can invoke and in fact if you look at the legislative history that is exactly the reasoning that congress went through when state courts there was less clear that there was a body of law gilling with the producer duties of union officials as opposed to bank directors nonprofit corporations you know you know charitable organizations implication being that they intended that this standard would be applied by whatever state courts are applying whatever state to do sherry duty laws were there that's not so unusual for example in hipaa we have a federal privacy standard but no federal privacy right no federal right of action and hipaa for example is constantly used as a standard of care for state law cause of action for example negligence malpractise and this court decided in the one case the case we cited in our supplemental proceeding for a claim under the business of professions code one thousand seven hundred dollars so that it's not so unusual for congress to create a standard and leave it up to the states to enforce it through state laws and that seems to be what the court said was the way it would work and in troubling and that is completely consistent with how congress intended that to work the only difference was when the case when the the two bills got to conference in there was the house bill in the senate bill the parties agreed to the the additional language dealing with members derivative actions that was in the house bill but had not been in the senate bill and all that shows i think quite overrule it in sci you it's still good law and you know the supreme court is welcome to step in and say or say what it wants to say and i can't see what other other option the court really has other than to tear it up in that fashion i the alternative would be to go on bank and decide which you know and decide what to do but that would seem to me the two choices the court has either course is you know is obviously viable i guess what i would say though is that trial week despite the rejections of the other courts trowing is actually the right decision that is correct looking at the legislative history and looking at congressional intent that the other courts state court along with you know all sorts of other things that you might have along with that state law conversion actions for example fraud breach of contract things like that so that it's not surprising that they wrote it this way if you look at the sort of standards now which appear to be moving more and more to what is congressional intent it really isn't the court's role to say golly it would have made sense for congress to have thought it done this they must not have thought of it w to that congress clearly thought of it and clearly considered it and clearly considered between having absolute the senate bill which had no unfortunate mechanism at whatsoever and the house bill which had the derivative action only and chose the derivative action it is difficult for me to art see from that that congress had not considered the issues on a force matter and made a decision and if you don't see and that's a decision this court should respect should acknowledge and respect i guess what i would be saying is that that is the way the current law would seem to suggest it should work and i give the analogy to hipaa because that's a currently currently sort of situation where you have a federal standard but no federal right of a cause of action so with that statement i have to say that my feeling is that the court should clarify the issue hopefully this panel or not but if the bank if necessary and and so there is no claim for example under other federal laws for example in the guidry case which the defendant site which noted this distinction but said it was not relevant went on to note that in that case the party said invoked federal jurisdiction under clearly provided federal jurisdiction so they didn't have to decide never had to decide whether there is federal jurisdiction or five a one day for that case so your answer that leaves me  but these are the issue was whose property was it and the words to prompt the idea of the copies of documents and that's what we're talking about only copies of documents not a single original copies of documents that were sent to him in his e mail account his own personal e mail person who has the copy it and the recipient or the person who sent it and so the idea that there is a if this is union property is it best to dispute it we think that there is no law whatsoever this is a copy of indictment b confidential information that was the original theory of the complaint that they didn't have a theory of the complaint that was everything was union for all copies were union property the theory was that this was an upturn in client disclosure here i don't see a basis for saying candidly i don't see how evidentiary privilege is a piece of property without at least some people some union rule that applies and i think that's significant issue here if you want fiduciary to follow union rules it seems to me you have to have union rules th what to do in pretty unequivocal terms if you want to have a rule that says you can never disclosed turny client communications and which for lay people to understand what that means you have to be pretty specific and you have to have an identifiable and clear cut reason for that you have to say and the circumstances under which you can't do it because it does interfere with free speech to say you can't disclose and any claim communication doesn't appear with free speech and example here is that they have attempted to say well you can't use it to help members defeat you thank you of the alamar da the nd one is based upon the allegations in the complaint there would be and there is action three a one jurisdiction and the complaint itself they alleged the union alleged of breach of contract does a stablish federal jury subject matter jurisdiction currently there is to nine circuit cases that end up held section five a one is a liability there is the and this is the key point of the sci you case the court did consider whether section five a one is implied a cause of action in favor of the union and distinguishing the difference between a skimmed we do not believe congress intended to write such a blank check for internal insurrection that is on page one thousand and forty six dollars so we believe under the  other cases of the th circuit the ga see a case that would say that this court treats reasoning central to a panel as decision as binding on later panels we believe that sci you reasoning is binding here setting forth an implied right of action but this wouldn't be the st time the th circuit has implied a right or action or a circuit court has applied it there are three other circuits a quote the court's holding in trial week was based on the expressed language of section fifty one b and did not consider whether a federal cause of action for a union plaintiff may be implied in the statutory scheme and then it goes didn't speak of five a one day so we have the other decide the other circuit courts in the pit of appeal holding five away implies we have the sci you case is reasoning trial week was never a subject matter jurisdiction case as the supreme court and later cases in particular the case in two thousand and six in the latest supreme court cases started talking about co including the supreme court itself previously had you subject matter jurisdiction as the label sloppily they didn't use it precisely and at that point they started analyzing well are we talking about subject  complaint which i'll direct the court's attention to if you look at number one the st paragraph of the complaint talks about seeking injunctive relief we want the return of the property in section five in the prayer we asked for in order to return the documents and then in paragraphs thirty four dollars we say there's a breach of the constitution which inherently gives the caught subject matter jurisdiction once we get past the subject matter jurisdiction issue and we're talking about whether there is an implied we believe the defendant has waived that argument by not raising it because he could of raised it at the at the district court level but did not he could have raised it in his appeal but did not so once it is subject matter jurisdiction we believe that the fifty one a issue is no longer an issue confiscated and given away d by the former union official the former union official being mr lamont he had our property he was communicated to in his official capacity not in any personal capacity or in any other d way and he kept our information and our confidential information which on the face of the documents say their confidential he gave it away to to know and members by the retention information the district court had indicated that the constitution does not specify exactly what property needs to be returned and council made the argument well nothing says copies sent to is a fictional distinction the law firm sent e mails to the defendant that's not a copy they sent it to him he turned around and took those documents and gave them away and in the ten those document after he ceased being a union official so even if there was a question of fact whether there was there was a property under the constitution section five or one a says hey union official you have to take care of union property and not use it in a self deal in fashion by giving it away to non members who do not have the same confidential interest as the union itself the union wanted to preserve the confidentiality of these records the defendant never got authorization to release that he just unilaterally made the decision that he would release confidential information so the union has their confidential interests at stake not the people he gave it to who just like his own counsel just want to give this information away willing mily that's not proper that goes against the interests of the local who breach for him to sure because in doing so he attempted to breach the confidentiality we were able to in other cases get that information clawed back we sued steve griggs we got a judgment against him that we had to give all that information back and hold it as a constructive trustee and not disclose it to anybody so we got that protected against d n o'donnell we got an order that he would give all that information back and he hands so we went and got that information and kept it preserve the confidentiality of it again the defendant never had authorization to give it away never sought authorization never disclosed it at a meeting never board meeting where there was a vote to decide to give it away nothing like that so we as the union need to preserve the confidentiality of the records and just a simple hypothetical he was the financial secretary of the union he had access to the financial records of the bank accounts when he was kicked out of the union could he go give away the union's bank records to a hacker association and say hey here's the bank account maybe you can get some money out of it that's confidential information that we have a right to demand back from that union official who is no longer a union official we did seek that information back we filed a lawsuit and he said we're not giving it back we have the right to release it as often and as frequently as we want to so we pursued it to a summary judgment and obtained summary judgment but the difficulty here i think the point that been addressing is this i nformation and once it's described it's just how do you get it back we got the information that we got the e mails they destroyed it from their busy internet server or their computer databases they had it they gave declarations to the district court judge there and we've heard that didn't we have gotten rid of it all and we assume they're telling the truth so the union's done everything humanly possible to protect and preserve the confidential information we should all the players involved all the players who got the information we got orders getting it all back and that's all we no he they were sent to him on his only e mail that he used he used to emails one was at the company and it wasn't sent to the company of the confidential stuff because the company would have access to it the other one was sent t union designated e mail account it was his personal e mail account but that was the only email account he ever used he didn't have a separate union e mail account that had the union like a g mail account there was nothing like that with the union and they did it on purpose because they didn't want to clog up the union a few union business reps had local e mail accounts but not the officers and that was by design but regardless of it being his personal essay yeah you in the two thousand and ten case in the lower court would judge also p said he was whether they sent it to your personal e mail account is a difference without a distinction you're getting that information in your official capacity for official union business and purposes not for you to go steal the information to give it away because you think it helps somebody else in a fight with the union and just by the way there  was the only charges that were brought against steve briggs he had already resigned from the union quit is union office and was terminated but this is the end o'donnell he was never a member of the local he was never brought up on charges he had no reason to have any local one thousand five hundred and fifty three information it was just because it was helping the defendant in his other lawsuits of which there are pending appeals right now case we got the job we got our property resendiz five we're not seeking retribution or doing anything we're defending our success blow thank you discussed at length in our brief how they really don't have that secondly when they talk about this disclosure of somehow being improper it was disclosed in the context of a union disciplinary proceedings against mr mr grig it wasn't they didn't the union didn't clock that proceeding the proceeding was ongoing it continued the disclosure was to the union the disclosure was was in disclose it was months and months and months half a year or more before they even raise a key issue they filed this lawsuit before they follow this loss that they never claimed any of this disclosure was improper they didn't claim that oh you wait you've given away our attorney client privilege secret information they didn't say that that's privileged you can't use it the court never reached the issues of waiver the court never discussed the issue of whether waiver occurred although that is in fact their burden to show if they're going to claim that this is prevalent but add to say that somehow we're misusing information when we're submitting it in connection with a disciplinary proceeding and where that information is being considered by the international union part of that proceeding and no one says boo include into what a year later while most a year later surely that is shows that the information was both legitimately disclosed and that they didn't perceive the horrors so it's some megabytes i don't you know i thought i should have a better answer i have a lot i have a print of a list of documents that we that i think were involved at several pages long but you know but it contains everything because you know if it's turned over everything so that includes far more than the attorney client privilege is a documents that were at issue in a lawsuit and one final point there is no allegation of any provision in the constitution and bylaws of any international or any