freed it from the specific amendment requirements and bargain for protections held by the eighty one unit holders that are contained in the trust archstone theory although it wasn't one shared by it well years during the run up to this merger is that none of the trust contractual requirements are protections apply because under maryland law mergers can terminate minority units in the trusts but there's a problem with this argument whatever maryland law might say in the abstract it cannot override any specific restriction contained in the trust itself and merrill largely says explicitly section eighty five a one point one which is the statutory provision that arch don't realize i'm only control of the merger process quote unless the declaration of trust provide otherwise so what provision in the declaration of trust are you relying on there are several provisions your honor and i think the best way to answer that question to take the court through the provisions one by one the first provision in this is at your  five by four in the trust document is section five point one eight and as the dish record explains this is the provision that generally governs our stone's power to merge this week's planes in our brief the contract explicitly restricts this power under five point one a twice by specifically conditioning any merger are compliance with section five point three and here i'm i'm i just would like to point the court specifically to where  if if you look in the first section of five point one a which is labeled general midway down that paragraph there is a sentence that begins in addition to the powers now or hereafter granted a trustee skipping over some language that is in relevant of this case the clause their status with the trustee shall have full power and authority to do all things deemed necessary or desirable by it to conduct the business of the trust and then again i'm skipping over several causes that are just surplus including without limitation and then skipping down to subsection three of five point one a the document grants the trustee authority do all sorts of three all sorts of things but there  also in the paragraph above it says that you can only do those things subjects section five point three and so the question for the court here is what the object what the section five point three require but that well  me the key question here is whether or not a one unit holders your clients whether they're whether their powers and existence survive and whether or not at the time of the merger they still had the powers that they thought they had previously under the provision that you're relying on i think to date you see what i'm saying yes and i think that's the argument the opposing counsel that's right their argument causing that's that's i think exactly right their argument your honor is that by the time the trust was actually amended ones were gone they were eliminated and i think to answer that question this court needs to ask both sides i would i would i would be happy to answer this question in the i trust the other side will as well could you do that could you eliminate a one unit putting the merger to one side let's assume that there was no mer could you eliminate the a one unit first and then amend the trust document i think both sides would say no you can't do that like in the question is why couldn't you do that the reason you couldn't do that is because five one a dish and any action the trustee would take on compliance with five point three and are shown in what will say in its present service five in it you five point three a stance for the truism that you can't contravene the trust without taking a proper amen as a general matter so the question now is really can you get yourself out from underneath that restriction through a merger and what are what we focus on and i think this is where this argument sort of the rubber meets the road in this case is subsection three of five one a which specifically grants archstone the authority to merge among other things it grants are still in the authority to do all sorts of things under the structure of the acquisition disposition sale in includes merger of any or all of the assets of the trust but it does that again subject to five point three another or whatever right you have to merge under this provision is subject to the same restrictions that you would that under five point three a here if arched if the a saw wanted to conduct a reverse merger they would have needed to comply with five point three a if they did a reverse merger right footnote of footnote thirteen about what hard stuff would have needed to do to be a were to effectuate a reverse merger how is that the same argument that you were just elucidating to judge briscoe i don't  i didn't see an argument in your appeal brief about anything regarding of reverse merger was the reverse merger here or that that footnote was specifically directed to an argument that archstone was making the operating trust just is no longer around that all the assets in the trust are gone that's not what happened here and so rightly so you're not you're not arguing on appeal that what the eight thought did was invalid because it the operating trust right that the reverse merger that merger was condition on five one a and five so the way that it worked here was not a five three b merger it was m it was a merger that was governed under five one at which is general store to undertake a whole host of transactions and that authority is specifically condition on five three a's restriction that you not do anything that would contravene a specific limitation  was preserve the section five point three three each was specifically presented to the district judge it is contains it's the it forms the cornerstone of the breach of contract claim in this case if you go back and you look at the operating operator's complaint here at e r one twenty four and one fifty five you'll see the breach of contract name the first allegation of breach in section five point three as a and that's because under the under the  this this trust was designed to work archstone could not take any action whether it was amending or eliminating that the unit without complying with the article twelve amendment requirements if it were otherwise if that wasn't true merger blue pencil out all of the key features that they want in the unitholders hat and so i think i mean just on this waiver point you know it is designed to avoid surprises designed to avoid waiting in the weeds not reasoned arguments but this argument has been there from the beginning in this case and the district court didn't look at five three eggs all it that was the only provision i'm concerned about in five three is five three b but this wasn't a five three b transaction precisely because the operating trust  wasn't terminated didn't go away it wasn't merged out of existence and so because the assets remain the only authority that archstone had to undertake this merger is five one a specifically conditions on all of subsection five three including five three a and i just want to maybe sort of reiterate that that reading of the contract is consistent with the way hogans lawyers understood how this was going to work through the run up of this merger they were consistently and repeatedly asked to govern how supposed to work and the real time record that we have in this case about how our systems lawyer its own lawyers and its past conduct understood the limitations out here talking about issues of material facts and when you're looking at testimony questions but you've ability intense and all of that and and here we're just looking at the hard documents and saying what does this language mean i agree with that your honor but to the extent that there is an ambiguity about the intent of the parties what regard to the breach of contract issue the breach of the declaration of trust issue in particular with regard to the argument that's being made regarding section five point three a trust and each of judge back records riscoe when if you asked th he was reciting the issues upon which the parties agreed and sort of a useful device before us the disagreements and here's one of the things he wrote the top of page twenty three he wrote second the only portion of section five point mistaken war that was the fact based on all the pre thing i can tell your honour's not here as a witness but i've been litigating this case for eleven years and the idea that section five point three zero has ever waiver and then pointing to a footnote that your honour's correct touchback reckon makes complete different point about reverse merger and i should emphasize that below and you can see this also in judge might seen as a citizen there was an issue about whether or not the declaration of trust remitted a reverse merger that issue is no longer on appeal or is not on appeal was never raised so that issues out of the case so to the extent section five point three eight was ever referenced it was in relation to an issue that is not currently  the reason i think that waiver here is such an important concept is because we have been litigating this case for eleven years this case has been rejected by their own motion to dismiss or now most recently a summary judgment by over a dozen judges this is our life into this case and lattices survived a motion to dismiss by rejecting a lot of the case and that's gone that meant that they got fifty depositions fifty that's on top of twenty day taken in the arbitration they asked for and were awarded  million pages of documents in discovery so the normal controls and federal rules that say you only get ten depositions were waived in this case everyone deserves their damn court that doesn't mean you deserve eleven years of course and so the guy we are where we are really need you to address i'm sure your point on wavered you have more to say about let me thank your honor so let me turn now to your question which was the substantive issue about five point three a and whether it does in fact there any relation to the question of whether or terminating shares in a merger on the one hand and amending emerged a declaration of trust or corporate by laws on the other they are different fundamental things and that's a decision that's that's a principle of law that's been recognized by the maryland supreme court by the delaware supreme court which is looked to by maryland is extremely persuasive by intermediate cases in maryland and as importantly as any of those by statute the maryland rita law which is specifically incorporated into aeration of trust by reference actually say there says the following it says that a retreat in maryland can emerge and the corollary is that when it merges sharers ceased to exist that's what a merger means it can be converted to something else and it makes it sort of very familiar concept companies can go away and what's more is courts in maryland and delaware have said it's such a fundamental notion that shareholders actually charged with knowledge of that that's not a presumption that stronger than that and use it as a matter of law every shareholder must know that in that that a company can merge and that their shares will cease to exist in a merger but i  think the palace argument here is that's all well and good that we're relying on the declaration of trust and the declaration of trust says you can't do what you did and there's lots of law about that there have been at least a half a existence and that your shares consist to exist into that charter itself the way you have to read a declaration of trust is as if it said we can merge and will be merged your units will cease to exist so that's something that they have to understand that's something that's sort of baked into this declaration of trust and most importantly how it gets sort of the past when you read section five point three day you have to read it as if what i just said is also in the contract the contract  says your shares can cease to exist if the company chooses to merge so if you look at section five point three a what it says is anything that violates this charter can't be done without an amendment but merging and eliminating the shares doesn't violate the charter you just don't get there it doesn't add anything it is not additive to the argument that they're making so yes if the units continue in post merger so in other words there  agreement so if there was going to be an amendment to that of course the anti member provisions with aplomb but in this case what was done something distinct there was a merger that was done with no one man or what they would say it h ambiguity a reasonable person could read this to say i isn't a one unit holder have a right to distribution of earnings and what i and i'm entitled to that under five point three  and to deviate from that there has to be compliance with twelve point three and twelve point four and so i'm not getting those rights that are our human title to the distribution of earnings that are elsewhere are protected under the or whether it's it has to be done through an amendment why isn't that at least an ambiguity let me give you three answers to such bacharach the first answer is that this judge the units were terminated they were converted into one of two things the right to get cash at the same rate as the shareholders or there's a tax deferred security called syriza they ceased to exist when the articles of merger work filed with the state department assessment this is not an argument the first impression it's been tried before and in delaware in particular the supreme court said in the elliott case which is cited in our brief that's the right to merge and convert shares in eliminating the s fundamental that and so sort of understood and everyone has to understand that that's part of the deal that anti amendment provisions which are there to protect in that case was referred shareholders so it's just like here will only be interpreted to interfere with that ri say our rights kick in even in the event of a merger unless they specifically say that there is no ambiguity and that's as a matter of law again this is very fundamental because otherwise look at this case this case was done at a twenty three percent premium to the share price and ninety eight percent of the shareholders voted for what's really happening here is you've got these unit holders who had a unique tax preferred position saying we have the right to hold this deal of we're not happy with you're not going to interfere with that right on behalf of minority unit holders unless there is crystal clear reference in those anti member provision that says this includes all your merger stuff and it doesn't share so there's no ambiguity so you never get there so really they're not giving given much of anything five point three five point three eight just says something and it's perfect sense if you're doing something that would contravene any provision of this declaration of trust you got him and i get that  of agree to certain things but that doesn't mean i'm saying i'm not going to ever close the club and the protection that you get i want to emphasize this point i'm almost done so it's a good way for me to and the protection is provided in the declaration of trust in section five point three b which permits mergers and section one point two b which is the provision parallel provision that permits mergers to be operating trust and going you know what they both say is there only needs to be one vote and that's a vote of all the shareholders together which means in effect a minority doesn't get to control the outcome but the but provided that the consideration paid to the minority unit holders is the same and that's their protection they walk into this knowing the deal and then again with knowledge of the deal is you don't get or you don't get control of this company commercial out of existence any time but your protection is you're not going to get harmed because you'll be paid whatever the shareholders get paid that's what happened here there's no dispute about response is was to say well look under maryland law the only way you can overcome this background rule is to identify something in the contract or the trust that specifically requires that the set the entities comply with a provision that doesn't allow he said if there's nothing in the in the in the trust that specifically references a merger then you're out you don't get it and i would agree with that and i would point the court to five one egg which specifically references mergers and sa that that authority is conditioned on five point three that is that is the language that gets us out of the background rule that you can do whatever you want in a merger and yokes the trustee in this case to complying  specific requirement that prohibits contravention of the trust without amendment that language under eliot associates under control morgan which is the case that the parties have had thought about the meaning of is a sufficient enough carve outs to the general rule that said look trustee you can do all sorts of things you can merge you can tell better you can dispose whatever but if you do them you do it subject to five point three and what you haven't heard from my colleague and i think this is the key point is no is no effort to explain why five point three doesn't say what we say it says it's clear it's categorical it allows for no what they're saying is is that will  as clear as i can about this this is not a five point three b transaction a five and you can go right to the language and i and it's that i don't with me but it's three pages passed by boy one day it said a five point three  transaction is only a transaction in which the operating trust assets are sold or transferred and that cash that there is no dispute that that in happened here i see my time is done thank you thank you thank you both for your arguments this morning the case