[00:00:00] Speaker 00:
It's number 21-7025, Jamal J. Kifafi, individually and on behalf of all other similarly situated at Ballant versus Hilton Hotel Retirement Plan et al.

[00:00:11] Speaker 00:
Mr. Bruce for the at Ballant, Mr. Youngwood for the FLEs.

[00:00:17] Speaker 03:
Mr. Bruce, we'll hear from you.

[00:00:20] Speaker 04:
May it please the court.

[00:00:22] Speaker 04:
Almost nine years ago,

[00:00:25] Speaker 04:
This Court of Appeals, with a unanimous decision, affirmed injunctive relief to remedy Hilton Hotel's violations of ERISA.

[00:00:35] Speaker 04:
The violations had gone on at that point for almost three decades.

[00:00:40] Speaker 04:
The main violation that affected practically every participant in the plan was that benefits were being backloaded

[00:00:48] Speaker 04:
to later years of service so that lower paid, shorter service employees did not really accrue any benefits for their first few years of service up to nearly a decade of service.

[00:01:07] Speaker 04:
When the violation was uncovered,

[00:01:10] Speaker 04:
Hilton, in the words of this court, tried to dismiss the court's jurisdiction by saying that it had adopted an amendment now that was going to deal with the backloading violations.

[00:01:26] Speaker 04:
And then in this court's words, with that wave of the hand, said that this case was now moot after three decades of violations.

[00:01:37] Speaker 04:
This court rejected that in 2012.

[00:01:39] Speaker 04:
And this court in 2019, again, affirmed the permanent injunction that was issued in this case, which required that Hilton Shell award back payments

[00:01:55] Speaker 04:
and commence increased benefits for all class members as soon as administratively feasible.

[00:02:05] Speaker 04:
The site on that I had, it's at the JA-98 and then it's also at 110.

[00:02:13] Speaker 04:
I believe I had 112, but it's at the second place where that injunction was repeated in 2013 after this court's affirmance is at JA-110.

[00:02:26] Speaker 04:
In joint parties, it's much like the mandate of this court.

[00:02:31] Speaker 04:
An enjoined party is not there to second guess the court's injunction.

[00:02:37] Speaker 04:
An enjoined party cannot have a secret interpretation of the court's injunction under which it interprets all as meaning something approaching 60% of the class members who are due increases.

[00:02:53] Speaker 04:
That is not allowed and it's much like

[00:02:56] Speaker 04:
the this court's mandate that this court does not issue a mandate for the district court to revisit it review it that the district court is to carry out this court's mandate and the same rules apply to to a permanent injunction here.

[00:03:17] Speaker 01:
Yes, if I could I'd like to ask about what you think

[00:03:20] Speaker 01:
Your burden was in order to convince the district court to reopen this case.

[00:03:29] Speaker 01:
The brief suggests something along the lines of this that

[00:03:34] Speaker 01:
you needed to make a prime official showing that Hilton was in non-compliance with the permanent injunction and that would be at least enough to get the case reopened.

[00:03:45] Speaker 01:
It might not be enough to show contempt, but it would be at least enough to get the case reopened.

[00:03:49] Speaker 01:
Do you agree with that?

[00:03:51] Speaker 04:
The prima facie language was not ours.

[00:03:54] Speaker 04:
That was Hilton's language.

[00:03:57] Speaker 04:
Our language from the case law from Stewart, which is a decision by Judge Lamberth, was that we need to show sufficient evidence for the district court to think that there may be sufficient evidence

[00:04:13] Speaker 04:
when an accounting and post-judgment discovery is allowed to establish contempt.

[00:04:20] Speaker 04:
And so it's a significant or sufficient evidence test.

[00:04:24] Speaker 04:
And that's the same as Judge Boesberg articulated in the Deimos case for post-judgment discovery, that it was significant evidence of noncompliance.

[00:04:36] Speaker 04:
So we have we introduced that evidence to the district court, but the district court did not even reach that question.

[00:04:44] Speaker 04:
The district.

[00:04:44] Speaker 01:
No, I, no, I understand.

[00:04:46] Speaker 01:
I understand that.

[00:04:46] Speaker 01:
And so you would say that there needed to be.

[00:04:50] Speaker 01:
significant evidence of noncompliance.

[00:04:53] Speaker 01:
And if you were able to put that in front of the district court that they should have reopened the case.

[00:04:57] Speaker 01:
And then I have a follow up question.

[00:04:59] Speaker 01:
Is that yes?

[00:05:00] Speaker 01:
Yes.

[00:05:01] Speaker 01:
Okay, great.

[00:05:01] Speaker 01:
And then I'll ask Mr. Youngblood the same question.

[00:05:09] Speaker 01:
If I were to look at the record here and conclude that no reasonable district court judge

[00:05:19] Speaker 01:
could have concluded that you met that standard.

[00:05:25] Speaker 01:
Should I affirm or should I still nevertheless vacate the district court's decision and remand for the district court to consider whether you produce significant enough evidence?

[00:05:40] Speaker 01:
Because we are a court of review.

[00:05:42] Speaker 01:
We're not a court of first view.

[00:05:44] Speaker 01:
I suspect you think the second of those two options

[00:05:50] Speaker 01:
Tell me why.

[00:05:52] Speaker 04:
Well, the predicate of that.

[00:05:55] Speaker 01:
I know you disagree with the predicate.

[00:05:58] Speaker 01:
But just assume it for now.

[00:06:00] Speaker 01:
And I promise I don't think you've conceded the predicate.

[00:06:03] Speaker 01:
But for the sake of the question, assume it.

[00:06:05] Speaker 01:
And tell me why I should still never do that.

[00:06:07] Speaker 04:
Can I have an opportunity, though, to show why you would not reach that conclusion?

[00:06:14] Speaker 01:
As long as you don't forget my hypothetical after that.

[00:06:18] Speaker 04:
I think if we look in the first volume of the Joint Appendix, Your Honor, at page JA266, you see there's a chart with categories of reasons why people were unpaid as of March of 2015.

[00:06:39] Speaker 04:
And those reasons, the class members covered by those reasons add up to 8,199 people.

[00:06:48] Speaker 04:
These categories were categories that Hilton Hotels created or Hilton Hotels contractors created.

[00:06:57] Speaker 04:
And they show that their notice is sent out, their payments to beneficiaries, and there's a group of people where they're unconfirmed addresses.

[00:07:08] Speaker 04:
there were 8,199 of those people falling into those categories.

[00:07:15] Speaker 04:
We got additional data from Hilton in 2017, two years later.

[00:07:22] Speaker 04:
That additional data showed that in that two-year period, Hilton had paid

[00:07:29] Speaker 04:
187 people out of that 8,199.

[00:07:34] Speaker 04:
That works out to being about 94 people per year.

[00:07:41] Speaker 04:
At that rate, it would take close to 90 years for Hilton to complete implementation of this injunction.

[00:07:52] Speaker 04:
And when you look at Hilton's briefs, they talk about, well, there might be some people who moved to other countries and died.

[00:08:03] Speaker 01:
Mr. Bruce, let me stop you because I do appreciate that argument and I'm familiar with it from the briefing.

[00:08:12] Speaker 01:
and I have a question about it as well, but let me return you then to my hypotheticals.

[00:08:18] Speaker 01:
Assume for the sake of this question, I disagree with you.

[00:08:20] Speaker 01:
I'm not even saying that I do, but assume that I disagree with you.

[00:08:24] Speaker 01:
What's the best case for why, assume that I think no reasonable jurist could find that you made the showing that's necessary.

[00:08:31] Speaker 01:
What's the best argument for why I should not affirm?

[00:08:34] Speaker 03:
Well, I don't,

[00:08:41] Speaker 01:
Or maybe you think I should affirm in that case.

[00:08:44] Speaker 04:
Yeah, I don't think that the appellate court is making those kinds of determinations.

[00:08:51] Speaker 04:
That is for the district court to make that determination.

[00:08:56] Speaker 04:
And the district court didn't make it.

[00:08:59] Speaker 04:
The district court didn't reach that.

[00:09:01] Speaker 04:
And so I think that the court

[00:09:05] Speaker 04:
has to deal with the case that's before it, which is that the district court against this court's own mandate and against all of the precedents that we set out from the Supreme Court, this circuit, every other circuit.

[00:09:22] Speaker 01:
I understand.

[00:09:23] Speaker 01:
And I think that I get it.

[00:09:26] Speaker 01:
Let me ask one last question.

[00:09:29] Speaker 01:
You pointed to 266, which is related to 265.

[00:09:35] Speaker 01:
I'm looking at this bar graph with the blue bars.

[00:09:41] Speaker 01:
And I looked at this and I thought, well, that first bar is very tall, 10,000 payments made.

[00:09:51] Speaker 01:
The second bar is very short, 1600 payments made.

[00:09:54] Speaker 01:
That's only 15% of the first bar.

[00:09:58] Speaker 01:
And it was after that time period that the district court said, things are going well enough.

[00:10:04] Speaker 01:
I'm gonna end my supervisory jurisdiction.

[00:10:06] Speaker 01:
So the district court was very comfortable with a drop from 10,000 to 1600.

[00:10:12] Speaker 01:
And if the district court was comfortable with that drop, wouldn't we expect the next bar graph

[00:10:18] Speaker 01:
to be a very, very short bar graph, wouldn't we expect if we went from 10,000 to 1600 that we would then go from about 1600 to about 187?

[00:10:30] Speaker 04:
Well, that wasn't the basis for the district courts.

[00:10:34] Speaker 01:
I know, but what do you think about my amateur statistics?

[00:10:38] Speaker 01:
And you can tell me why you think I've got my statistics.

[00:10:41] Speaker 04:
Well, because you need to look at the categories on the next page.

[00:10:46] Speaker 04:
And the categories on the next page are not that there was a notice of deferred benefits sent, but no payment.

[00:10:54] Speaker 04:
That there's nothing in there to indicate that there's going to be a drop off where only

[00:10:59] Speaker 04:
10% of that 5,184 people are gonna be paid.

[00:11:05] Speaker 04:
They all should be paid.

[00:11:07] Speaker 04:
And the same thing with the payments due beneficiaries of deceased participants.

[00:11:12] Speaker 04:
There's close to 1,500 of those.

[00:11:16] Speaker 04:
There's no reason to expect that only 10% or only 1% of those people are gonna be paid.

[00:11:22] Speaker 04:
They're all supposed to be paid under the permanent injunction.

[00:11:27] Speaker 01:
Thank you, Mr. Bruce.

[00:11:32] Speaker 03:
All right.

[00:11:32] Speaker 03:
Any other questions?

[00:11:33] Speaker 03:
Judge Kansas?

[00:11:34] Speaker 03:
No.

[00:11:34] Speaker 03:
All right.

[00:11:36] Speaker 03:
We'll give you a little bit of time on rebuttal.

[00:11:39] Speaker 03:
Mr. Bruce, we'll hear from Mr. Youngwood.

[00:11:44] Speaker 01:
Thank you, your honors.

[00:11:45] Speaker 01:
Good morning and may it please the court, Jonathan Youngwood for the appellees.

[00:11:50] Speaker 01:
Judge Walker, let me perhaps start with the chart that you were looking at.

[00:11:55] Speaker 01:
Which is exhibit one a 265 and I do your question includes the point I would make, but add to it that all this information was in front of the district court.

[00:12:07] Speaker 01:
When she issued her late 2017 order.

[00:12:12] Speaker 01:
Further confirming that she saw no need for continuing jurisdiction or courts who provide supervision of the implementation order, and it was that order that was also considered by this court in 2019 in affirming that situation so.

[00:12:29] Speaker 01:
If we have time, I'm happy to walk through every exhibit that Appellant has presented.

[00:12:37] Speaker 01:
But with the exception of the survey, which I'm happy to walk into in some detail, nothing here is new in the sense that nothing was not before the court previously in both this court and the district court when prior orders.

[00:12:50] Speaker 01:
Why didn't the district court just say that?

[00:12:54] Speaker 01:
Well, I think she did.

[00:12:57] Speaker 01:
I think the district court did and I understand she could have written more words you can always write more words.

[00:13:03] Speaker 01:
I think in reciting the history of this case that Mr Bruce gave you part of this is a 23 year old case that has been.

[00:13:14] Speaker 01:
looked after by this district court judge for those 23 years, multiple district court decisions, two prior visits to this court.

[00:13:23] Speaker 01:
I will say parenthetically, not a case that's always gone my client's way.

[00:13:27] Speaker 01:
This is not a case in which the district court has consistently ruled for us.

[00:13:33] Speaker 01:
She ruled against us on liability and against us on a lot of

[00:13:36] Speaker 01:
matters regarding remedies that she has recently ruled for us, I think is further evidence of the

[00:13:44] Speaker 01:
depth to which she understands this case and has come to the conclusion that my clients are complying with the order, that implementation is going forward, and that implementation cannot be measured by appellant's definition of success.

[00:14:00] Speaker 01:
And that's been part of some of her prior orders, and it's been part of the consideration that this court in 2019, I think, paid attention to in affirming the prior orders that were in front of her at that time.

[00:14:13] Speaker 02:
Well, but this isn't a case where the district court order is a little bit cryptic and sure you can always write more.

[00:14:23] Speaker 02:
She gave a very specific reason and it just doesn't seem to be a defensible one.

[00:14:31] Speaker 02:
She said, this case is over because I terminated my jurisdiction, done.

[00:14:40] Speaker 02:
And that seems impossible to reconcile with what we said in the second Kifafi opinion, which is relinquishment of jurisdiction or not, the party with the injunction can always come back and make the showing that things have broken down.

[00:15:08] Speaker 01:
understood two responses.

[00:15:10] Speaker 01:
First, I think you're referring to the last paragraph of her

[00:15:15] Speaker 01:
her March 1 decision, if we want to look at the first paragraph, which says, for the reasons set forth herein, the court denies both motions.

[00:15:26] Speaker 01:
So I think part of her reasoning is everything that follows, not just the one sentence that ends the order.

[00:15:33] Speaker 02:
I think that what- So where in between that first paragraph and the last paragraph would I find

[00:15:46] Speaker 02:
some conclusion that the latest proffer doesn't make a prima facie case or whatever the threshold burden is.

[00:15:56] Speaker 01:
Those exact words are not there to answer the direct question, your honor, but I think in the consideration of the second to last paragraph, the order where she recites the briefing and the motions made by the parties, that clearly shows that in the, I think eight months or 10 months, she considered the order.

[00:16:12] Speaker 01:
She had the party's arguments in front of them, considered them and rejected them.

[00:16:16] Speaker 01:
But I completely accept that there is no detailed analysis, reference to the various exhibits.

[00:16:24] Speaker 01:
I'm happy to walk through those exhibits and get, I think, to part of Judge Walker's two-part question, which is, what is this court to do with this record if you were to conclude, contrary to our argument, if you were to conclude that this order itself isn't sufficient for you to defer to her discretion?

[00:16:43] Speaker 01:
But I would point to that paragraph and I point to the history that she has.

[00:16:49] Speaker 02:
I'm sorry, the penultimate paragraph in the order?

[00:16:52] Speaker 01:
Well, the one beginning following this affirmance, I guess the penultimate is... Right.

[00:16:58] Speaker 02:
That just seems like it's reporting the filings.

[00:17:04] Speaker 02:
It's a statement of procedural history.

[00:17:06] Speaker 01:
I think it's a statement of procedural history.

[00:17:09] Speaker 01:
I think it can be fairly read from this court's perspective that this district court judge with 23 years of experience in this case considered the filings before it.

[00:17:18] Speaker 01:
But the words are the words.

[00:17:19] Speaker 02:
OK.

[00:17:20] Speaker 02:
OK.

[00:17:21] Speaker 02:
So I understand your position on that.

[00:17:24] Speaker 02:
So I'll let you go to Judge Walker's possible alternative ground.

[00:17:32] Speaker 01:
Judge Walker, I think I'd answer it this way.

[00:17:35] Speaker 01:
First, I think appellant has changed their position because they actually have asked you to reverse in full and order the relief that they sought below.

[00:17:44] Speaker 01:
I think appellant's argument concedes that that is something that they are not even favoring because they think it's for the district court in the first instance and that if she didn't do it, you should ask her to consider it.

[00:17:56] Speaker 01:
Our view is that the record is clear that no district court could come to the view that the prima facie case had been established.

[00:18:05] Speaker 01:
And I'm happy to go through that as well.

[00:18:07] Speaker 01:
It's on pages 20, 21 of our brief.

[00:18:10] Speaker 01:
We outline our argument on that, which includes reference to the district court's adoption of that standard at 79 F sub third at 100, which was part of the decision, again,

[00:18:24] Speaker 01:
or decisions before this court in February of 2019.

[00:18:28] Speaker 01:
So on the prima facie, I would suggest to you that this court had the opportunity to review that standard and did not disturb it.

[00:18:34] Speaker 01:
So I think that is the standard.

[00:18:36] Speaker 01:
And I don't think he's met it.

[00:18:38] Speaker 01:
So I think we could, again, I'm happy to walk through each of the exhibits, all but the survey.

[00:18:44] Speaker 01:
in one form or another or before the court, the dist report in prior motions?

[00:18:50] Speaker 01:
Mr. Youngwood, I don't want you to walk through all of them because we have your briefing.

[00:18:54] Speaker 01:
But maybe if you could just briefly respond to Mr. Bruce's main point, that chart on JA 266 is strong for him.

[00:19:07] Speaker 01:
Yes, Your Honor.

[00:19:08] Speaker 01:
One second.

[00:19:11] Speaker 01:
In particular, he's talking, he says that he's discovered there are 5,000 class members where there was notice of deferred benefit sent, but no payment.

[00:19:23] Speaker 01:
Yes.

[00:19:25] Speaker 01:
So our understanding from the papers for the district court that these figures are based on Hilton summary Excel spreadsheets through March 2015 and then supplemented through June 2017.

[00:19:40] Speaker 01:
the spreadsheets at least through 14 and 15, or again, before the district court previously.

[00:19:46] Speaker 01:
And so I can't say that there's not some incremental information here, but effectively, this is the exact type of data that was presented to the district court previously, and deemed not sufficient to extend jurisdiction further, and then affirmed by this court.

[00:20:02] Speaker 01:
What would you say, Mr. Youngblood, to this argument?

[00:20:07] Speaker 01:
If the district court had just said motion denied period.

[00:20:11] Speaker 01:
If the order had been two words.

[00:20:15] Speaker 01:
Then you would be in a better position for us to affirm, then if the district court did what it did, which is say because I don't have jurisdiction motion denied.

[00:20:27] Speaker 01:
Um,

[00:20:29] Speaker 01:
I'm certain if it just said motion to die, Mr. Bruce would make the same arguments he's making here.

[00:20:34] Speaker 01:
And I think what I would say, Judge Walker, which is why in response to the prior question, I referred to the first paragraph of the order.

[00:20:42] Speaker 01:
I think she is saying motion denied and then she's writing more.

[00:20:47] Speaker 01:
I think it would be quite a thing that by writing more, she's entitled to less deference than by writing

[00:20:54] Speaker 01:
less.

[00:20:55] Speaker 01:
I actually prefer this order to the motion tonight.

[00:20:58] Speaker 01:
I started with, I don't know the answer.

[00:21:01] Speaker 01:
I think the answer is that this provides, it helps you understand as the reviewing court, the history that she went through, the understanding that she has of it, and the fact that her conclusion, my words, certainly not hers, her conclusion is there's nothing new here.

[00:21:19] Speaker 01:
I do want to get to finish, I think, of what your hypothetical and multi-part question for Mr. Bruce was before my time expires, which is I think you can affirm based on this record because you think that she did give you enough information to show she exercised her discretion.

[00:21:41] Speaker 01:
I also think you can affirm if on your own review you conclude that no district court

[00:21:47] Speaker 01:
reasonably exercising discretion would have come to a different result.

[00:21:52] Speaker 01:
And I think the most you can do in terms of reversing is send it back down to her to write whatever additional work she needs to write to give more of a grounds for you to understand what discretion and how she considered the things.

[00:22:07] Speaker 01:
What I don't think you can do is reverse and give him the relief, the appellant the relief that they seek.

[00:22:18] Speaker 01:
I'm happy to stop.

[00:22:20] Speaker 01:
I know my time has expired.

[00:22:21] Speaker 01:
If the court would be helpful for me to walk through the survey, which I really didn't get to, I'm happy to.

[00:22:26] Speaker 01:
But I do understand my time has expired.

[00:22:31] Speaker 03:
Thank you.

[00:22:31] Speaker 03:
I think we have the briefing on that.

[00:22:34] Speaker 03:
Judge Katz, Judge Walker, did you have any other questions?

[00:22:38] Speaker 03:
No.

[00:22:39] Speaker 03:
Thank you.

[00:22:39] Speaker 03:
All right.

[00:22:39] Speaker 03:
Thank you, counsel.

[00:22:40] Speaker 03:
All right.

[00:22:41] Speaker 03:
Mr. Bruce, I believe you were out of time.

[00:22:46] Speaker 03:
We'll give you two minutes.

[00:22:49] Speaker 04:
Thank you, Your Honor.

[00:22:50] Speaker 04:
I think there's one point that may address the Judge Walker's last question was that Hilton, in its brief, and now Mr. Youngwood has essentially done the same thing again, they're arguing that

[00:23:09] Speaker 04:
They seem to be conceding that this court should remand.

[00:23:13] Speaker 04:
And they're arguing that the remand should tell the district court to further articulate its reasons for denying equitable relief.

[00:23:24] Speaker 04:
And not only is that entirely slanted, but it never gets to the motions

[00:23:35] Speaker 04:
that the district court is to consider, which is to show cause as to why contempt

[00:23:42] Speaker 04:
as to why there shouldn't be a hearing on contempt and to order an accounting or post-judgment discovery.

[00:23:51] Speaker 04:
All of those things have established standards.

[00:23:55] Speaker 04:
The district court cannot write on a blank slate where it has unfettered discretion, which is what Mr. Youngwood is inviting.

[00:24:04] Speaker 04:
The district court has to follow

[00:24:07] Speaker 04:
the standards for those things.

[00:24:09] Speaker 04:
And as we showed, the standards for an accounting go back for 200 years.

[00:24:15] Speaker 04:
In the Finley case, when there was a breakup of a partnership in a jewelry store, that the partner who wound up with the business

[00:24:26] Speaker 04:
was required to account even though the court said it might not be probable that there would be anything turned up by that.

[00:24:35] Speaker 04:
There was enough of an open question there for an accounting to be made and that's the same kind of standard that Judge Boesberg is articulating in the Deimos case when there's significant evidence of non-compliance

[00:24:51] Speaker 04:
that post judgment discovery is in order.

[00:24:55] Speaker 04:
The only way that Hilton is sustained is by unfettered discretion and the wave of the hand, which is exactly what they argued back in 2012, is the grand wave of the hand of no problems here, even though all of the records

[00:25:17] Speaker 04:
indicate the problems.

[00:25:19] Speaker 04:
All of the records indicate not only that there's a huge percentage of people who are unpaid, but that there is absolutely no significant progress going on.

[00:25:29] Speaker 04:
There's no efforts being made.

[00:25:32] Speaker 04:
Nothing is coming out.

[00:25:33] Speaker 04:
Even the people with the deferred benefits who are now over 55, they're only being paid in like

[00:25:41] Speaker 04:
a hundred or so a year out of that five thousand.

[00:25:46] Speaker 03:
Thank you.

[00:25:48] Speaker 03:
We'll take the case under advisement.