strip search as forbidding it or any other district court for that matter from applying what are known as the traditional state factors the so called hilton factors that's not what this court said in nassau v strip search it's not what the seventh circuit said in dillon which is from where those factors came that this court adopted you didn't even really address the factors of the nassau strip search county factors in your materials and i think would be useful for you to do so we clear that the judgment creditor is going to get paid dillon where this all started involved a judgment of one hundred ten thousand dollars against the city of chicago and so what the court said is under sixty two d dealing just with the money judgment it's weeks for and those factors all lined up to make sure that there's enough comfort there for the judgment creditor but you start part of what the court was looking at though was whether what comfort that the judgment debtor has that it will eventually get paid in that in the interim the absence of a bond  decrease in security and that's what the factors seem directed towards where is the traditional state factors go to something else entirely so why or why are they relevant we agree that they fit they focus on two different things but what i'm saying is certainly under regardless of what the lower courts limitation on its power we don't agree with that and i think it's going to wind up having many more applications like this coming to this court the first instance certainly under the all writs act under rule sixty two g as a lower court acknowledged itself this court has the power to put to apply the right standard and it would make no sense to apply the dylan factors or now the nassau county factors to this case and under the if we have the authority to consider those factors here then what difference does it make that the district court did not why don't we just consider all the factors that are all of them that you think are relevant and address the issue on the merits i i think that that's a smart way to proceed you're not suggesting  that well we need to decide is which standard applies and if we decide the district would apply the wrong standard we should remain and and have the district court do it all over again no no your honor we are not this is a rule of motion under rule eight and it comes to you and it could stand on its own i was just noting that our disagreement with what the district court found on the factors the first on the merits even though the district court did not apply the factors that we believe it should have it spoke to them and spoke to them in our favor on every one of them on the merits you will hear from plaintiffs how does the way when you say spoke to them if you didn't actually apply them and make actual findings it seemed to me that what you were relying on are relatively straight remarks in the course of having a hearing where judges often try out ideas think out loud and do something other than make actual findings right there in a so let's put that to us to decide ok what's now we've got now down to a minute and forty seconds i know but everything aside let's get to the standard that you think should be applied and what the answers are that the hilton factors should be applied here on the merits this is not a thorny factual issue we accept for purposes of this application all the findings at the lower court made this is a pure legal issue for the court in states can there be a finding of alter ego liability when the fact finder itself has found that not only has there been no intent to evade obligations there is no  of obligations that was the finding in the lower court there's not been a case like this so said the lower court in fact judgment man found there was no case to any resemblance to the facts of this case and urged us to try to find  no nobody came forward with a case that satisfied her on those grounds but at the end of the day what you will see is this is not a case where nablus took contracts and pushed it to its nonunion arm to avoid paying obligations this is a case where the developer testified that he rejected nablus his bit and then awarded the contract to the nonunion company what this judgment has done is it is converted an opportunity that was never there for the unions although it's union contractor into a guaranteed annuity and for that reason on the merits putting aside any factual issues assaf accepting the truth we prevail the other factors are not seriously contested we are on the brink of bankruptcy we have almost two thousand people whose jobs are a issue here on the other hand you have the plaintiffs who it's a lot of money but it's still just money what's the issue here the merits i think that the merits clearly show i think i think they're all interrelated drawn and it shows that you have a flawed seriously flawed judgment you believe in the bond no i what i'm saying is we cannot it's been established we cannot bond we will win and because of that because we meet our burden there organize i don't think the record establishes that however just sitting where we are now you have to two considerations one is we would be going into bankruptcy and all that that means including the stain of bankruptcy in this business in this industry it would mean that other creditors would get a seat at the table it would mean additional expense in the bankruptcy proceedings first says no showing of substantial injury to the plaintiff you if you offered any security at all i mean my my view is you have just said we can't get a bond and therefore we offer nothing if you try to work something out or offer some some comfort to the judgment creditor you're on a we would love to engage and we have offered we've offered to keep our shareholders equity at thirty eight million dollars we've offered increased audits we want complete transparency nobody is running away in the middle of the night with these assets the plaintiffs will not engage with us on that and we're open to additional suggestions this is not a case where we just said we made a half hearted attempt to get a bond couldn't get it and then said well you get a at a lesser amount it's difficult because the bonding cut this this industry and this company its lifeblood is bonding right bed bonds performance bonds payment bonds it is at its capacity and so when it applied for the bond we can't and we don't have a bonding company that is willing to even offer us terms what supposition just because someone says we lost at the district court we should've won and we can put a bond so the judgment creditor who won can't get collection can't get money and then at the end of the days of it turns out the judgment is affirmed that's always the competing interests and it's it's our job to convince you that this is one of those cases they won at the district court level they didn't know they're going execution what i would stay where i would phrase it is they're going to be there's no reason to think they'll be in any better shape the district court itself said that executing on the judgment now and not staying it is this is the court's work self destructive that it is in the plaintiff's interest that nablus continues to operate even as we sit here right now we continue to spend three million dollars going to deal with you when they get less than a judgment and go and get something we can't flawed judgement which is let's assume just a quick hypothetical judgment because you say no because you have to say so i have to convince you because there's been no there's been a finding that there's been no intent to evade obligations there's been a finding that there's been no to proceed nonunion as a result of that a job that the unions would never have enjoyed has now been granted to them there is no case in this court in ca boston in two thousand and ten said the purpose of the doctrine is to prevent the and as i said before on the if just as an example if there's a two hundred billion dollars judgment against the state of new york and you look at on its face and its some creative rico theory and you say well this just isn't right i know this is wrong judgment and the budget for new york state is less than that you saying that that doesn't have the power to step in there or you're the standard you're suggesting that we apply is if this judgment is ridiculous on its face then you should be exempt from having a bond no because the it because then tell me what the standard is just that we think it's wrong based on sketchy briefing on emotion or what what how convinced you said you have to convince us what do you have to convince us of the standard that should be applied here because the irreparable injury the balancing  likelihood of success on the merits it is not even likelihood of see it is not it is substantial even if we think you're likely to lose on the merits we still should forgive the bond if is that your position yes under mohammad v reno this court said that it was recently a firmed in citigroup global markets against the c g it's a sliding scale you're saying even if we think you are likely to lose on the merits we should still eliminate the bond requirement if you peel if you find that this is a substantial case that it poses substantial questions those are the courts language not my language we think we get the benefit of that relaxed standard but we still believe we're likely to succeed so even if you like go  one earlier question judge kearney asked you if you've offered other security and you responded in terms of negotiations with the plaintiffs and you know that's sort of speculative as to who did what negotiations and what is likely to happen and who's to blame in the negotiations i wonder do you think that we have the authority if we deny the bond requirement to impose an obligation of other security is that's all we can do or is that all or nothing i knew that something that this court can do which was you know that's something that this court can do why can't you offer some security to us this happens all the time and bail for example where a criminal defendant the government says a person needs to be detained and the defendant says well here's a package that i think will guarantee the safety of the community and avoid flight risk so is there something you're offering us forget what you might say to them in the back room after you leave here what do you propose that we do or is your actual proposal just no bond go ahead with the appeal no the proposal is the following  maintain as we have in our papers promised to do thirty eight million dollars in an equity in the company we will increase it to the promise to maintain a certain level of shareholders equity which is thirty eight we would promise thirty eight million dollars and we can come up with some scenarios it's a con that's with that be reflected the good it's not in the court it's a matter of trying to get something squeeze something out of the stone it's i don't think i'd say that your honor there are liquid assets of thirty million but those are required to continue to run the company the company's largest asset this isn't a surprise considering what type of receivable it needs to continue to fund in order to keep taking in that revenue and so what i would say is let's establish a threshold for the shareholder equity let's make sure that we're with where the assets are the income coming in let's even perhaps set up a fund i've asked my client to go back to do everything they can to figure out how much they could afford projecting each month to put away and we are able to put away four hundred thousand dollars a month into a fund for the benefit of the plaintiffs and we'll also agree to some sort of independent party to oversee and make sure that we continue to have this equity in the company that we continue to provide this money into a fund and that we continue to share with them our books and records so that they know that there's no she cattery when we hear from your adversary tha believe the court is aware from its questions the point of the rule sixty two appeal bond is to protect judgment creditors and their right to obtain their judgment judge macmahon issued a highly detailed factually specific ninety five page opinion determining that the plaintiffs were successful in their claims we have not had a single offer except for a moment ago of any money whatsoever to secure this judgment there's been discussion of opportunities to audit but we don't believe that would be a particularly powerful tool on our part the real issue here is money and this is a well funded company the single shareholder at this point is taking out seven million a year as distributions since this case began which would be in another itself some twenty one or twenty eight million dollars and we simply think they failed to come to grips with the reality of this judgment you don't question the assertion that they will be forced to file for bankruptcy do you i believe it is likely they would be forced to file bankruptcy that's correct your honor and bankruptcy is a not an unusual business decision to make what we're concerned about given the type of conduct in this case and i don't share consuls you have the record here there was consistent reference to the defendants misusing corporate forms but it was a c s t m g c k k k c c those are all corporate entities that they used in part to perpetrate this fraud it is true that the court found no personal obligation on mr  sullivan the owner of nablus i think frankly it was something of a split the baby approach from the point of view of the district court and in that context found that there was no intermingling of personal assets but what she did not find in fact she found the reverse there was consistent misuse of various corporate recovery from well i think your honor we simply have to measure where we are today whereas where we would be if there is no bond posted and let me quote from neville says briefly page two to this court counterpart is vital to this construction company  threatening to cease working with nablus there is no prospect of any future work for the company because the city the surety has refused to issue bid in performance bonds in that context whatever the assets of nablus are and they have substantial cash at x assets of some thirty million dollars they will waste between now and when the court ultimately issues them or upholding the judgment below and it is remember very important to recall that the plaintiffs here are receive funds or multiemployer funds the trust is of which have a distinct sharp personal duty to act with an eye single to what will maximize recovery for the funds and this is not a case where this is simply computing business and we have a public interest in ensuring that multi employee benefit plans are funded and funded appropriately and we cannot be funded less available if they are forced to file bankruptcy rather than having this fund in this alternative method of continuing to operate for a period of time while the appeal is resolved they've never offered us a single dollar i heard today four hundred thousand dollars a month that contract revenues two hundred forty million an increase of one hundred two million over the prior year that assets of eighty five million had retained earnings of thirty six million stockholders equity of thirty eight million and as i said to me the distribution of seven million to their shareholders which profitability we simply have an argument here which is essentially a too big to fail argument that there are a thousand people who are homework maybe they said up to two thousand people homework we're not and insensitive to that but what's undenied in this record is the fact that we have a declaration from an experienced union official who points out that most of nablus is work is public sector work which is essentially required to be done by union contractors other union contractors will pick up the slack to the extent they don't do it this is not a situation where a factory would close there's a certain amount of union work out there that has to be done and if nablus doesn't do what other union contractors well it's not it's a little cold blooded but we have to be that way because our job is to protect the benefit funds is inevitable downturn coming up we all know we've been in the construction boom we need these funds to maintain the promises we've made to people for pension health and other benefits it's important to note something about the standards here because if the this part didn't adopt the nassau county or dylan standards you'd be an outli seventeen app lexus two zero zero zero seven six circuit tobar twelve two thousand and seventeen only a couple weeks ago the court sided with approval of the dillon standards as the applicable questions to ask when somebody seeking relief from a bond in fact the ninth circuit recently said and i'm talking about october sixteenth two thousand and seventeen the past kenta band vs crosby two zero one seven u s district lexus one seven three five three four eastern just to california it says quote in just a couple weeks ago the ninth circuit has never formally adopted these dylan factors and has not offered its own guidance but dylan is often cited within this jurisdiction and has been utilized on three occasions in the district of california if the southern desson is going to maintain its preeminence as a commercial vehicle for the adjudication of large disputes you would be i think a mistake for the second circuit to be clinging to hilton standards that are primarily applicable to equitable issues maintenance of an injunction order to accomplish something from a equitable point of view and not recognize the need to give judgment  creditor's relief i just want to summarize what we think of the four points of significance in this case the first is the plan of service of trustees who must use an i single as i mentioned second novel has admitted before the court that this judgment has saturated runner they took seven million out last year a seven million dollars bond is not an affordable for this company their thirty eight million dollars in assets according to themselves and what did what mr norton say his rep yes and what mr not in says is never was kept cannot get a super  bond in the amount of the judgment or anywhere near that amount that's his words or anywhere near that amount there's no statement here that they can't afford a bond there's a step and they can afford the full bob but all they're coming before you with is a settlement which they didn't first but with us and second we don't think it's significant thank you thank you thank you for your arguments we'll reserve decision to try to get your decision as soon as possible thank you