honor this case involves a claim or you have to talk slowly in clearly so we can hear you and by the way we do listen to the disc this all goes on and we will listen i mean the soon to since over my claims of the release and the non release plaintiffs are identical and so it necessarily will follow that if we prevail on the wrist a question as to get release point as to the non release point of the case will have to and all we could do if you prove ill on that think that both parts of that statement are correct it would have to go back down in the first instance but if the court would resolve it in our favor on the rest of question there could be only one outcome and so i think affectively this case is go s at all and as for that we think the answer is clear it's resolved by a fundamental research and simple which is that claims for receive benefits must be stated must be derived from the document theorists of plan documents themselves spring court has said that it said it recently in the kennedy case in which it said expressly that a claim for receive benefits stands and falls on the terms of the plan documents in this case i should say that's a very important principle because it's  really a fundamental importance that employers be able to tell what their responsibilities are by looking to the terms of the documents that they wrote as the supreme court has said if that were not the case employers would be discouraged from hands in the first place for fear that they would be on the hook down the road for and it dissipated liability in this case the plaintiffs previous employer westinghouse did provide p j s benefits in its pension plan but siemens did not seem as has never in any pension plan not at the time not now has never provided p j s and excuse me isn't their actual language in which siemens undertook who adopt the westinghouse employees a pension plan can caning perms and conditions that are substantially identical with those of the westinghouse pension plan in the fact that the time now that's an expli employees it if they westinghouse employees transferred to become siemens employees that that's right at which point they were covered by the siemens plan which did not provide it has benefits because again but they satisfied by the employees of condition under the westinghouse plan to obtain a p d f by their number of conditions one of them was you must be terminated before september first one thousand nine hundred eighty so the plan that siemens said it was going to adopt we're looking at the it is a contract it's not a plan documents we have to look at what siemens intended to do as a contractual matter assuming that this isn't for sale at all and again our position fundamentally is that it's not but if one looks at the at the a p a has a contract the question is what the intend to commit it cannot reasonably be thought that siemens intended to commit itself to act as an insurer against all of the unapparent hidden defects that might years i have that on your brief that language is in year three but that's closing date the westinghouse plan had provided that the cutoff date for p j s benefits would be supplied or one ragas thirty one two thousand after the closing date you would have been you would have had to have a written long before district place was written in november of one thousand nine hundred seven and at that time it was expected that in p d s benefits in fact would be available for some period while these employees were working for siemens and so it was and this one here ok may please accord i'm david bennett rhodes and i'm here for the plaintiff retirees it appears that the principal question on what's been called the merits that applies to everybody here as to whether there is a cause of action at all against siemens is whether siemens was writing on a blank slate when it created its plans that did not provide for a j s pension we believe it's clear that it was not writing on a blank slate because the law assigns obligations in connection with this voluntary assumption of responsibility for the particular liabilities at issue here and the court has noted that there was an undertaking to provide substantially identical pension benefits in addition to that they didn't really it that it's there but it doesn't mean any but your honor he's trying to make an expansive view of the plan document rule and say that the asset purchase agreement was not a plan document in this regard i'd like to the same circuit in holding that an obligation undertaken an asset purchase agreement could constitute an amendment to a benefit plan i don't really want to make further argument about what it was the case says but i just want to call it to the benefit at issue is held by this court and tell us those benefits cannot be avoided through a transfer of assets or liabilities and to await by its own terms applies whenever there is a transfer of liabilities and the seaman's has argued that there was no transfer of liabilities but in the asset purchase agreement there is express language transferring the liability for the very thing at question section this is quoted at the bottom of page two and top of page three of our initial brief it says that the purchaser plan a pension plan should be solely responsible for and the westinghouse plants are not provide for benefits pursuant to section nineteen agreement that was closing that talked about who would be responsible for the benefit after the closing date for for people who retired after the closing date or were laid off after the closing date ya know we believe that the district question was th section five point five d four of the asset purchase agreement it says that the purchaser plan will be responsible for the p j s benefit with respect to people who are laid off after the closing date by the purchaser that's exactly the situation we have here they say that they had no anticipation that there would be such people that they weren't that they weren't as  or absolutely observed did they mean that this provision would have no meaning at all we think that the provision is required by law to have meaning that this report was quite correct in saying that this clearly constituted a transfer of liabilities from one plan to the other and westinghouse plan was subsequently amended with regard to the bargaining unit employees transferred to take out the responsibility for the same benefit because it had been transferred to the to the purchaser plan the fact that they adopted written plan documents later shouldn't change the result of the they they undertook to provide this exact benefit and they can't avoid it being a transfer by shenanigans with the papers later on i'd like to turn if i may to the question of  subjectively intended by the people who sign them to apply to this benefit and that's a burden they will not be able to meet in any person's case because this simply is not the case and it will be a few tile repeated hearing to see whether they can put on any evidence of any person actually intending that but in fact the systematically siemens personnel says while they are broad releases your honor and generic broad releases cannot be as a matter of law interpreted to cover pension benefits protected under section two zero four g unless there is some further protection and exactly where the line of that protection espied on is a very difficult question i know in the seventh circuit in the lynn case attempted to draw it at if there contested claims and there has to be some ability for practitioners to settle contested arista claims for some compromise but here those things were not in contests nobody thought they were in contests nobody thought the releases actually applied pension claims and i think particularly benefits because it would be an arrangement providing for payment to the employer of plan benefits that would otherwise be due to the to the employee so the seaman's is arguing that the kennedy rule that you always prevent a waiver is dispositive but in fact in that case it was not a waiver in kennedy at the behest of the employer it was a waiver in a marital situation and a waiver at the  employer has been held by the i r s to be something that in promise of all again there has to be a room somewhere to compromise a contested claim but i believe that the result of this is that there has to be a lot more than what  a further issue with regard to the with regard to the twenty eight planets we have a final judgment we we cross appealed in that case with regard to the set off of the  this recorded two things about the severance they held that there's a tribal issue on whether there was affectively a waiver by signing the boilerplate broad releases a waiver of the entire s pension separately from that in the twenty cases where there was no release signed for the severance what the court did was allowed a set off of that severance benefit against the p j s benefit we submit that this is just clearer because the same plan benefit rule applies here the plan document roll big because the plan does not provide for coordination of benefits many plans do so that if you're getting a similar benefit from another source that will be taken into account and reduced from your benefit under the plan this plan made no provision for set off or any other benefit and as a matter of law the court can't allow  set off or the plan doesn't the kennedy case and the other cases cited in our brief are clear that the the amount of the benefit has to be determined by looking at the plan not by benefits from other sources judgment and we filed across appeal from the on the final judgment from the set off of the severance and from the disallowance of retiree health benefits with regard to that to that final judgment there was also a certified  appeal in which certain issues were listed in those issues included whether there's a triable issue whether whether you can waive the benefit and whether if so the court correctly stated the burden of proof there hasn't been any contention of error on the court's assignment of the burden of proof to siemens and we think that that's conclusive of the matter it's significant to us your honor that in fact this is a final judgment appeal and we did cross appeal on the set off  to me that's a minor issue the severance thing i think more important is the primary issue here as to whether siemens is responsible for the s j p benefits that not to be a difficulty in a short answer that it's not a matter of whether it creates rights on third parties because we're not suing under the asset purchase agreement we're suing under section two zero eight of  which which we have a right to do because to await imposes terms on the plan and those terms and be borrowed from a voluntary undertaking in something to which we are not parties it's the undertaking to creates the right to enforce or that risk and the various plans say a ressa creates the rights that we seek to enforce but it imposes an obligation that was caused by the voluntary undertaking in the a p a under the lead authorities such as donovan versus dillingham cited in our brief specific formalities not required to make and enforceable obligation to provide planned benefits all that is needed is something that shows that there is an undertaking and something that gives an objective standard to measure what the undertaking is and those are both made out by the a p a very clearly and we don't have to be a contract party enforcing it and contract because we are a participant or beneficiary in the absence of evidence cases i understand that the court found that the parties that authorized the a p a also had the authority to amend the plan document that's quite correct your honor this is a record here show that whoever approved this a p a had the authority to amend the plan document you know and i believe the record shows was thought that these employees were good would go to work for siemens and be covered by siemens plan in let's say december of one thousand nine hundred with that but we address a you know great length in our our brief it was wrong i think for a variety of reasons that the initial reason it was it was that it is premised on the assumption that there was a transfer of plan liabilities from westinghouse to siemens that simply did not take place it could not have taken place had there been such a transfer the plans would have been illegal from the inception because as this court said and gillis you can't transfer liabilities that transfer your assets it's conceded that there was no transfer of assets it's also i think understood that neither siemens nor westinghouse intended there to be any such transfer so there could not have been a spinoff created and therefore the entire period continuation has to fall