and we'll turn to the last case on our calendar this morning which is building service thirty two b j health fund versus nutrition management services company polk perhaps you could begin by asking i have a new administrative question to be certain that i'm i'm understanding this on this case is related is it not to another case known as what has the same caption i guess as this different not docket number that is before the from panel of a quarter is that right it's related to that case your honor in that case involves the pension fund this is the health argument had been raised by the health fund which is not been raised by the pension fund two thousand and fourteen amendment applied retroactively and we had directly addresses here that was aggressive or argument the pension fund case since the pension fund had not raised in  briefings but otherwise it is the same the language of the collective bargaining agreement and the two fund provisions is essentially identical and the amendment as well in two thousand and fourteen write th amendment two thousand and fourteen is is a umbrella amendment as to all funds met please a court what's past is prologue shakespeare to less and that tells us of course that we get context from the past but while the past helps explain the future the past is not the future and the future is not the past but you have to embrace that absurd concept the idea that you can equate the past in the future to affirm the district court is because in the case before you the claims regarding a period of time from august of two thousand and eight to general two thousand and twelve were resolved in a settlement agreement as part of a prior l and the prior lawsuit said that those claims that the claims were wiped out but for certain exemptions put into an agreement have to procedurally follow through that the case was dismissed with prejudice before some an agreement was entered into so we start with a concept that race judicata would bar all of those claims of the transactions from that period except for how the parties agreed to preserve them and to the extent that they were preserved in this instance they were preserved with a future period at that in connection with executing that agreement it is the contention of the funds and it was accepted by the district court that that future funds audit included two things one of which is patently absurd and one which i think that th agreement and be decided matter of law then after a bench trial district court ruled that the language of the settlement is straightforward and unambiguous correct correct are and what are we to make of those inconsistent rulings on what appears to be a question of law well your honor i think that st the district court got a right with st instance which was that it was an ambiguous agreement and that she should have looked to seems to have credited the fund directors version of what the intent was correct and she she does credit the funds director's version and that version much like the version that she rejected from the company was an expressed intent that was not exchanged between the parties she said on the one hand the company's interpretation was unexpressed if she was going to give it credit but she credited what was admitted leave the unexpressed intent of the fund i think that's an appropriate your honor for resolving this and we have other interpretational tools to resolve that and because of that trying to make sure i understand you it's your argument that she decided expectation well i think you know if you look at actually case law out there and there's a couple of cases where the plaintiffs involved is handling who's the trustee and i can't remember what fund against lark's deli and some others that we put in the papers this similar language has been found ambiguous and it's not definitive and frankly the fund itself into changed its language over time and written more specific language in other cases so there is  apparent ambiguity here and there's a context in which you can view the ambiguity but you know if i may it was one point of the ambiguity that i think i really want to strongly emphasize here which is the audit that they're relying on to go back against the period from two thousand and eight through two thousand and twelve and its entirety is based in part in large part on an audit was conducted by stuart grits for the north pension fund and it was completed in two thousand and eleven now even if we assume the types of peanuts to the interpretation that the fund would put forward to your honor how is that past audit qualify as a future audit future funds audit under the terms of the settlement agreement with the audits different that resulted in the sentiment agreement was not just an audit of the books that were presented to the fond and that the subsequent aunt was a different kind of it was a more intensive audit and i right there is there is a difference between what they were what they say they were claiming on your honor we don't see when we ultimately get to the audit report and how your honor the i understand that is what they wanted it to say and i would say two things that one is a great deal of what they claimed and got a judgment on was not a subsequent audit it was an audit was already in the books at the fun's at the time it was in the north pension funds which is also under mr gonzales the supervision it was in their books and they just blew the dust off of it and used it to assess the other is i don't think that's what the language says i don't think that that's what they accomplished with it i think that they created contradictions within this agreement the issues mr bloom will address the issues concerning the prior settlement in the context of this case the question is what level or what standard of proof of review the quote will give and it's test but with a general assessment of whether fair based upon the abuse of discretion standard and although in my brief i suggested that there is a supreme court case that says all the st the statutory relief scheme as provided in the research applies in their argument to the court they argue that they are not bound by either the liquidated damages read as provided under the plan under the plan means not what is physically written in the plan it's broader than that and the the proof of the matter is the cases ci all by counsel for the appellant all address issues that arise on the different different sections of the recess statute which sections do not provide the specific remedial section g one and g one does not say anything about under the plan of a liquidated damages or interest same with the other cases cited  about the how we can be sure selves about the reliability of your report the district court never addressed the argument about the report's alleged deficiencies  i'm referring to the district court's decision opinion and order of june th when he tain that's the case right she didn't address that you're on a ship in by  not addressing it she's rejected the argument that the if the record is reviewed you'll see that the funds had testimony concerning what's the efforts were taken the steps taken and what books were reviewed all based but there was no factual support to support the appellant's position that there was and there were there it was an argument who was arguing raised but there was nothing in the record to suggest that the calculations were wrong parameters or principles there are different principles for eligibility for pension and there are different principles for eligibility under the health fund with regard to the to audit the north  result they analyzed the payroll records that were already in the possession in the context of not the pension fund which was done two years early up in the context of the health fund and what was found was that the  was hiding people it's literally just not reporting people that should have been reported and that is part of the problem in the case the case this is a self reporting case and in the earlier argument it was  suggested that they were to order periods but it's really not to order periods what it is is it's a self reporting case situation employee reports people work either pays or doesn't pay that was the settlement he reported people is working and they weren't paid in due course the checks and balances came into view we don't want to do the books and said he's not reporting these people so there are two different situations one is the employer's on misty  reporting the correct people and the other is the overall checking up to make sure that that really over report a couple people to that was alleged and if if that and but i think it was never proven that the district court addressed that issue i believe in i believe the district court heard that except of the argument but there was absolutely no evidence to support what they contended i will now turn over the podium to my reported information by employers is verified by audits conducted by the phone's auditing firm as a way to keep the players honest that's a fact that's not it doesn't appear to be a dispute there's no one audit and then there was a more piercing audit the pension fund audit is completely separate from the south health fund and i think us the nd point that i was also one disputed is that the prior litigation with the health fund the believe five hundred and seventy five thousand dollars figure was based soley on self reported system information by the employer so with those two things in mind we submit that the set of agreement language is clear and unambiguous because w it's in full satisfaction of and benefit contributions it doesn't say in full satisfaction of unpaid pension benefit contributions or health benefit contributions and so that you st proper that that the language of the settlement speaks to benefit contributions without making the distinction you've just made well no your hon gaudy reveals further errors in connection with the health care act no i think that nutrition management position kind of confuses the facts here that they're trying to create one continuous audit that does not exist we have to separate audits but the thing is is that you know what do you audit when you do an audit the employer's payroll so when mr kahn of was doing the the payroll summaries that had been put together by mr grades it was the audit itself or the health fund didn't even begin until two thousand and thirteen so they really have no they don't have a relationship to each other except  of the same employer and their source information in regards to that timeframe is the same that's it there is not a relationship between the two of them that so with that in mind confirmed his intent in part because in order to agree with them you've got to just completely overlook that sentence because i don't think anybody could rationally say well we're going to have a waiver through twenty general st two thousand and twelve borrowing and we're going to have a carve out for stuff after january  st when he's well like that doesn't make any sense so i think the unexpressed intent of nutrition management was weighed against the testimony of the funds which was confirmed by the very language of the document s the notion that nutrition rational is hiding people brings up the most important one of the most important issues in terms of how this was in accurately computed the agreement calls for paying benefit contributions for the number of people who have worked more than twenty hours a week doesn't call for providing for the identity of specific persons so if nutrition management paid for twenty five dollars people in a month and twenty five dollars people work more than twenty hours it owes nothing even if it mistakenly identified two people who didn't work more than twenty hours a month or twenty five dollars at senate and the fund later finds two other people those two other people don't get retroactive health care and the health care case you're on is this isn't a pension case and this is one reason judge johnny why i didn't bring this issue up in the pension  pension case was actually areal issues about contributions there anything else but this is a help fund case and people get that coverage that the fund was covering a certain number of people and got the contributions for an argument was they didn't do anything with that  and he didn't know what the definition of regularly should be so he made up one himself now out of all the people who can interpret the collective bargaining agreement your honor which is management and the union mr khan in the auditing firm for the fun doesn't fall into either those categories and he didn't consult either of those two can glory's he didn't obtain from self the proper support to come up with his definition of regularly he needs to have something more than just what his own opinion is one last thing i would say or authors as i'm running out of time is with regard to the argument that mr sturm brought up about contesting whether or not the delinquency policy is the plan the reason we look to the other provisions such as fifty to a one or two g one all the other ones that we identify and there is because the word plan in arrest has the same meaning throughout the statute and particularly when it refers to the plan we referenced in our reply brie a court decision that was handed down the day that i filed the brief so i didn't have a reporter cite for it which says that there is significance to the word and what it means interpret in the statute and for all the reasons that are in the briefs in the you've