the trustees paid excessive fees needlessly for recordkeeping services and for an index fund and as a result of that every dollar of excessive heat that the trustees paid for the plan was one dollar it but i think there's a difference in a dollar for dollar nexus where you literally paid money for the retail version of an index fund when a jumbo multibillion dollar plan like g w could have just simply gotten the very different and also point out in all the of those cases those cases were decided on summary judgment where the court actually looked at evidence that was presented to the court to help answer the question with the plaintiff at reasonably understood the force court of appeals decisions that the drafters of this language knew about when they drafted it two years ago that said claims are that's the benefits include claims for breach usury duty that impact the amount of benefits that you have that's the breeder case and so given that the definition of that's the benefits is out there by for courts of appeals it would not have been reasonable for melissa stanley to have known that that that planes that were being excluded were every single of every single pension plan so no matter what the pension plan says the risk is part of the term this report here do not have the plan document has no clue what is in that plan document and in fact if we ever got to discovery we would extent permitted by law the exceptions appear in a sentence that indicates that the only things except in from this release are those claims that cannot be released by private agreement as a matter of law judge beach correctly interpreted this release to determine that the claims brought in this lawsuit are not the sort of non workable claims that cannot be released and as such mistakenly cannot proceed with  my adversary focused much of his argument here on the question of whether this is a claim for best advantage but that's not an issue that judge bates found needed to be reached in order to resolve this case we think that like judge bates the easiest way to resolve this are not subject to the carve out because they are not claims under employee benefit plans and therefore they've been released and that can be the end of the case now in the mistakenly basically concedes the case in our view by acknowledging that if the exclusion covered quote claims under plan documents for vested benefits then she would be out of luck in that parsing of the distinction between restrictions apply to the phrasing of the plans written it's read it refers to what must be in a recess plan the most appropriate distinction the most important question to ask is is this a claim that can be released or is it a claim that cannot be released and there's no what there were any for what i believe our adversary to be suggesting that you could only send a preache once they've been filed that's not something that is supported by the case like to the contrary it's true that the g w could not have used this separation agreement to seize mistakenly for one k plan account that's what this provision is designed to protect from a standing she had a balance in her one k when she wants to withdraw that balance the money's going to be there arista says that her best benefits not for football and that has to be protected in the ribs but going beyond that and creating an additional exception for claims that can be self you know there's no logical reason why the release would do that and given the terms of the party hughes did in this language and his family acknowledging the relief that she had consulted counsel the most the only way to interpret this release is that it claims work for football and breach of usury duty claims are portable then they have been released now to better it's the same kind of dollar for dollar relationship and here there are particular investment options that ms stanley is claiming should not have been offered in the plan in count two there indistinguishable in any event all of these cases turn not on the nature of the underlying claims they turn on the freezing of the contre we've discussed in the brief why we believe that the district court is in the th circuit can't survive the seven circuits own decision however has motorola but it's probably worthwhile the focus on the fact that even if the case that our announced beckman were still good law it has sufficiently different contract language than the language we have here the exclusion in the back when case was for claims with respect to any benefits in which you have a vested interest it wasn't for claims under the plan for those massive benefit it seems on its face to be a broader release if the release for the exception for claims for benefits under the plan did not support reach of a nutri lawsuit in the motorola case then necessarily if we were in the th circuit then mistakenly claim wouldn't have entirely inconsistent with a plane its approach one such example is that the plan produce reason required to make certain disclosures of the some of the participants vested benefit that makes sense if that's the congress that the term vested liabilities means the present value of the immediate or deferred benefits of bowel a normal retirement age for participants and their beneficial fisheries which are non portable again drawing the connection between vest benefits available the end of the plant and non pork and ability which is all consistent with the party's contractual releases like all other contracts are supposed to be read as a whole in their entirety in order to effectuate the objective intact of the basically made the same exact statement and that even at this stage in summary judgment there is no basis to determine on the present record that any signatory would have understood the release cases this a this type of language is going to preserve a claim you can just play russian roulette and track that language and hope a court will interpret it the way maybe some other case might interpret it even though the how hayes for example said that it was limited to the particular facts