the court i'm told in breckenridge on behalf of the appellant andrew alderson in this case we have the threshold issue of what company trying to enforce an employment separation agreement against a person who was not its employee and indeed to whom instead of focusing on the words within the four corners of the agreement when we focus on those words within the four corners that the meaning of the word affiliate becomes clear because we have a two tiered separation agreement release provision whereas one tear that first part talks about triple canopy the employer parent's subsidiaries affiliates talking about businesses ongoing business concerns and then there's a second tier that gets said smaller things and on company's employees directors things like that the plan is not part of either team and so therefore the plan to trust the plans trust me is not protected by the agreement in any way shape or form once we get beyond the  issue of the separation agreement we also have a district court error in not applying rule twenty three when mr henderson made a motion for class certification there the district court declared a new era in which the court doesn't have to go to rule the new rules of civil procedure i just want to make sure to note that those new rules of civil procedure did not amend rule twenty three in any way to suggest that efficiency up by any more so than in the twenty three b three provision for superiority in efficiency is not mentioned and twenty three a it is not mentioned in twenty three b one it is not mentioned in twenty three b two and so for the court to not actually go through the process of resolving applying rule twenty three to the facts of the case was error so therefore the court should at the very least remand this case to the district court to determine under rule twenty three whether classification is appropriate i think the court should go further that the court should go ahead and direct that the district court certify the class based on the fact that we have established in the record that rule twenty three a and rule twenty three b one and b two are matt and and wilmington trust has not provided any matter well first of all it matters to the extent that winning the trust is asserting a right to attorneys fees so there's that issue right at the outset and second it matters to the extent that class certification and being allowed to utilize a certification justified you under your claims and it's also according to the district court yes you know where there was some disagreement over whether or not the damages was now accurate figure and i'm not we haven't decided yet whether or not we're going to appeal that issue or this case is claim for benefits right for benefits because it approaches said that they could try it seems to me right that you would find in this case the benefit the same amount of money from the other side of on so i've to the extent that there might be any confusion that the merits of the issue that mean this at this appeal is separate from the whole merits of whether or not the wilmington trust reached at risk or anything like we don't think that it matters what they really said because for them for two reasons first of all because it doesn't apply to wanton trust and second because this is a claim for best benefits but so if there were no credible claim then yes the release wouldn't be an issue because he wouldn't of filed suit but since he did file a suit wilmington trust is asserting that it's free from any from mr heller sensibility to have brought a suit against it and is also asserting that they are at least implying in their brief that they will go after mr holder get and within the group of that they they then say that since since trustees of really it's all released since they were trustee of the plan they are released the problem is that plan is not an affiliate as the term is described within the four corners of the contract because the plan is not to start a business and i'm still puzzled about is that odd situation but i'm trying to figure out why would we decide on whether or not the release is valid need to look at the release as to this individual lies plain if in fact all of the decision judge brinkema was just recently made he will get the same benefit as whether or not he signed  of in the specifics of this case assuming the district court order is completely affirmed which i don't think is the assumption we can always make then it would not make a difference in that circumstance however first of all in the abstract class sort of occasion can have a effect on what people get out of the pot because if there's rival litigation class certification help with all of that as opposed to getting two conflicting orders and so that's one of the ways in which we think the possibility of different participants in the plan bringing stop separate suits that could be determined by the original rules and not by class certification rules no i don't think the rest tells us anything about how to the the key is that i would not necessarily that in this case there is a thirty million dollars judgment but the take the possibility that there was another case out there where a district court ruled that there was no violation of a risk and then you're so you're faced with two orders one says there's no violation of a risk yes your honor i mean just very briefly ok you know i think that in the end this case really comes down to there there are two live issues here of whether or not there is whether or not the release of flies and whether or not there's classification and i think that the cans of construction that we have we assert that utilize the work within the four corners of the agreement are the only way to really review what affiliate means as opposed to relying on the relying on extraneous extrinsic evidence of other cases but even to the extent that that does happen i think that while steam is the case the court should rely on as a put provides a blueprint for utilizing if the court is going to utilize extrinsic sources utilizing extrinsic sources to realize fact that mr henderson was but was dismissed from the case and so he can assert i mean his whole claim was resolved so he can assert anything in the judgment that in any order that happened before that that applied to him and on top of that mr brown will never made a motion for class to why would we even need to address the question of whether or not this is a valid waiver unless you plan somehow to assert claim like a certain members issue and again if the court would look at the pertinent segments of the reliefs in the appendix pages forty six and forty seven and let it just deal with the point that any third party bring any action or claim against the company and the employees behalf of knowledge is that agrees with the agreement provides him with relief and he or she will not accept any additional re zero that thirty million dollars that that is a that is a distinct possibility but i do agree with the court that class action rule twenty three class action is unnecessary but my only point is it is not well but but it would it would be addressed we believe the release precludes mr holder said from recovering and from suing wilmington trust because he's given up that right ok and provided for a head award to the to the play and on behalf of the planet as a whole in the event of over twenty nine million dollars ok that opinion that decision is reversed on appeal is there any way that m can prevail here i believe no well then that's what i was thinking oh i'm sorry so why don't we wait to see what happens in that case well that's certainly possible although again i think i think the court could address the release issue right know the court is very insightful respect to that recovery so long his he was a participant with respect to these and he was and he did have and he does have a vested benefit in that presently at best a benefit of over twenty thousand dollars right now but he's not giving up that he's going to get the question is does he get anything over and above the twenty thousand dollars he's already i know you understand it was and then and you know now at least today that there is that issue that that that is out there and there are other individuals have also signed releases so it is not it is not an issue release th that joint appendix forty six and forty seven it's very clear in the very first sentence that a risk claims i'm sorry but all claims arising from mr holder since employment that when you're getting a really release of all employment claims you have to look at that but that language when you determine what an affiliate is this is not decided in the abstract is decided as a matter of with the the company who sponsored the plane administers place shows that they are an affiliate and the car and the notion of releasing all claims shows that you have to be contemplating release of all places and that's why the carb out is important because the carb out says you your you're entitled to your accrued and best benefits accrued invested benefits under any pension or savings account so that you really could release says you can't sue us for any employment related claims you can't sue us you can't sue our subsidiaries you can't sue our parents and you can't sue  but and you can sue us for any claims under risk but we're not trying to take away benefits that are already in your account you're entitled to that so the twenty thousand dollars that holder send has because of the east and we would say because of the good work of wilmington trust in in approving this the purchase and then the sale the twenty thousand dollars  holder some has he didn't give up and no one's trying to take that away from at all but he is releasing the his right to sue under a receipt why because they  his employer didn't want this big a receipt in part because as the plan document shows the employer has to provide the defense of this lawsuit so it's an expense to the employer and b and the case law that that dress is comparable situations is all on our side for the seventh circuit had a very thoughtful discussion of the issue judge home buyer in the district court said oh affiliates are clearly a plant is clearly an affiliate in the context numbers somewhere else so that it was money and the plan should go and there's one hundred million dollars should have been distributed it was not distributed because of that absolute just juggling the books there and on the date o and didn't put the distribution back in like it should have been until february the first and out of that hypothetical and employees account number on january the first was ten thousand dollars but it's completely clear should have been then everyone that in the company could have been sued but this the officers and directors who work for do shirts could have been sued and there would have been no effective release of the receipt claims at all look at the agreement and you have to look at the four corners of the agreement and specifically the specific purpose to release all arista claims the seven circuit feels that with that specific argument the star took a stealers with that specific argument and they properly and reasonably say that if in fact you could have a release of all arista claims this court has said that then this let me ask you let me just ask this like what when it interested me and i still don't understand your answer and i'm sorry i'm so slow but in response to church said hypothetical to you about the malfeasance and the in the wrong account they would not be under this i said what i understand to be your interpretation of this exclusion is that right jeff yeah i mean trouble hearing my point was and i then corrected after the distribution after the the day he left but you indicated that money would properly go back and count as approved as of the date benefits include claims for prohibited transactions or breach of the due share duties there is no limit on this release then even though the release says we're releasing all of us a claims the employer can be sued for all fiduciary can be sued officers and directors could be sued and as the seventh circuit said as the court and startles said that's a completely illogical unrealistic no is to use the cans of construction to construe words and contracts before finding ambiguity and going to extract sources and we've addressed those cans of construction as they apply here wilmington trust  suggested given anything to go against those kinds of construction and to the extent that that woman can trust this claiming that it would just completely destroy the the arista provision or the arrests part of the release that's just not true if if this court rules that this is a claim for benefits which as judge said example establishes it is and that woman can trust doesn't disagree then the re because that's not a claim for crude or the best of benefits so that there would still be coverage it just wouldn't be of the prohibited transactions claim which i will concede in this case is the biggest claim but in an hypothetical other case where there was some m but ultimately it didn't cost the plan any money and someone was just going for disgorgement in that case would be completely eliminated under the release this but this claim from this prohibited transactions claim as judge said example established is a claim for vested benefits there's no reason to wait for bundle and if they win on appeal which i did and it's the judgment is overturned which i don't think should happen of course but if in the off chance that that were to happen they assert that they will go after