and william o i understand i have fifteen minutes for argument i'd like to reserve three minutes if i could please ok watch the clock i'll try to help you but you are the master of your own fate so to speak thank thank your are your honors the department of labor engineered this wasnt if the deal well had not directed the f d i c to deny the bank's application  would not be in this courtroom today a counsel isn't on the record indicate that the bank has repurchase the shares of a lot of other people without the approval of the f b i see at no your honor the without getting that approval or at least the individual officers in the bank thank you are yes the bank has not an individual officer alan she did ok now and let me emphasize mr  she is richard she's son he's also a senior loan officer at the bank alan she was absent under absolutely no legal obligation tree purchased stock the reason alan che repurchase the stock was because he wanted to help the bank he wanted to help his father he wanted help the trustees and most of all he wanted to help planned participants once the department of labor told u announced the terminations are close to it in other words that the bank hadn't really made any preparation in advance to get permission to sell the stock your honor just chronologically the plan was terminated on december thirty one two thousand and ten about two months later march first two thousand and seven the bank needed to nischelle application to the f d i c for approval for approval to repurchase the  not later than one year following the day of termination correct so at the time when you decided to terminate that it was already investigating so you didn't work through the investigation so that you could ep prevention you just pull the trigger as as i understand it let me be clear the u s investigation had been going on for four years it showed no sign of ending so the plan administrator determined that we'll just terminate the plan and they elected to terminate the plan did they ask whether they could get approval to liquidate so that they could make good on the section template for requirement did they talk to the o l before they made that determination they not talked to deal well because they didn't need to deal as permission but they did to in order to comply with the contract i had to comply with the plan document the plan document required the plan to distribute cash within one year of the data termination now when the plan was terminated less than at that point about four months earlier the plan administrator you know as the c e o of the bank had asked the for permission tree purchased stock from a planned participant for twelve seventy five a share and that was granted no questions was granted promptly so that the bank could just ask the f d i c for approval to expected that there would be no problem the bank had more than enough cash available the bank could have declared a cash dividend that exceeded the amount page the plan participants by three times so has plenty of cash it's the ank had reason to believe that the l l would have approved their repurchase of the stock but had to actually confirm that with l l two i understand your position and the bank had not gone to the deal approval to repurchase the stock you know i'm puzzled by your position counsel you say that investigation had been going on for four years where the government was concerned you were aware that you needed to comply  and yet when you terminated this plan you knew that you had to buy these folks out for cash within a year correct again what led them to take that decision d you think that the investigation was going to go away that somehow they were just they were going to buy them out so that's not a problem anymore what motivated them is there anything in the record that would give us a clue that there is and mr cheese declaration then the ongoing investigation by the dia well let me emphasize a point this investigation goes on for four years every day and every time the issues would be resolved with the investigator most into the efforts of brian or i'm sorry brian nash the certified public accountant assisting the bank mr nash would answer all the questions then the deal would get a new investigator and they'd start again so at and one point i really want to emphasize there's not a single issue in this litigation that relates to something the d o l found during that four year investigation every issue in this litigation arises after the bank i'm sorry the plan administrator recommends the plan be terminated the trustees terminate the plan it's issue it's issues that arise after that they're the basis for this litigation at the time nobody there's no evidence that anybody thought this would be a problem in fact as i pointed out the evidence in the record indicates that less than four months before the plan was terminated the bank had been able to buy all the stock the plant participant for twelve seventy five a share with no problem nobody had objected the f b i c was aware of this ongoing investigation this was a fairly straightforward transaction where the power plant participants were being paid the appraised value of the some irregularities with respect to a loan they found cells dealing from their perspective i whether that was discovered before the determination to terminate the plan is a matter that only the record could indicate but realize they were going to put their foot in a bear trap i think they were fairly certain they could conform to addressing the two other issues the of basically the decision to call the account receivable and to distribute the counter siebel happened in two thousand and seven after the plan was terminated the decision to return the overpayment happened in two thousand and twelve so those are issues that happened after terminations let's let's that let's take those over those are chart of this litigation why did they do those what they knew the government was investigating everything they think those recalling transactions absolutely i mean what the plan administrator consulted with brian now let's focus on the account from seclusion i'll call a management one hundred thirty two thousand mr cheek consulted with bryan nash to determine how the account receivable should be allocated bear in mind and till the trustee is size the option to get paid the counter siebel as opposed to hold on to their right to develop the property there's nothing to be distributed so in two thousand and eleven when the account receivable is paid mr g and lists bryan nash to help him make sure that the receivable is allocated as it should be among the plan participants based on their ownership interest in the stock this was a fairly not the issue was that some of th accounts receivable wasn't allocated to the plan participants and to the bank that's correct your honor approximately eighty one thousand the counter seeable went to the bank and the reason it went to the bank is because the bank held is that correct no your honor the dividend was not paid the need i mean if you do a distinction being an allocated an allocated stock correct and i had trouble understanding what you are really saying that you were the stock now so the planned so stock was contributed to the plan but the plan didn't own it what has edger position yes and it's a bit complicated in the provisions are cited in our reply brief that pages twenty four and twenty five but what happened is stock was allocated to the plan it's his base stock was allocated or the the bank contributed stock to the plan that stock was contributed to stock was purchased by the plan through loans but it was not allocated to the plan but as a plan that stock it at the time it held the stock at the time intill the stock was repurchased by the bank years before the dividend actually was liquidated right at the dividend was was given to the plan the playing out of dividends on the stock while it on the stock correct if it was liquidated later but what difference does that make at valuable right that was owned by the plant i would say it's a valuable right but if they'd exercise the option develop the property nobody would got anything and i'd rather answer your questions we're going to got about a minute and thirty seconds left it's more important me that i answer your questions if you have any than well i go back to my i said trouble understanding what you're saying the the judge it could have put her finger on it you the the stock was contributed to the plan but i understood you to be arguing that well not really we gave you this lump of stock but only half of it really you own the other the other half the bank owns until you buy something like that they have and then we got the dividend we reallocated according to ownership something different than ownership and collateral what it means is this dog when it's initially purchased by the plan the plan has alone intil the plan pays down the loan stock stays in what they call these unallocated stock accounts no planned protest but has an ownership interest only when the plan pays cash for the stock is it allocated to a planned participant like a layaway plan or something principle of loss as some portion of the dividend goes back with the stocks when the bank repurchases was there an agreement in place to that effect basically it was that the the dividends followed the stock well there's what's the as entry of judgment following trial in this case the honors involving count one i think it's important to understand exactly what's at issue what's not at issue is whether or not the  bank could buy the stock but the issue was the abdication by the trustees and defendants of their obligation under the plan to distribute cash to the participants following line what happened there's a decision made in december of two thousand and ten to terminate the plan now your honor asked what the motivation was and what the motivation was is that the trustees and the defendants want to wash their hands of any responsibility to the participants so they terminated the planned effect of december thirty one two thousand and ten they send out a letter march first two thousand and eleven to the participants that's replete with misinformation it tells them that their assets have been rolled over the previous year february two thousand and ten to accounts and that they have sixty days from that rollover to asked the bank to repurchase money and that the bank may or may not and it makes absolutely no mention of section ten point four three quire meant that they get cash after that june two thousand or two thousand and eleven june twenty four  distribution in the form of shares in the bank to the participants in direct violation of ten point four and that's the violation well they said that they would have made the cash available might you make that offer in that violation was the distribution of cash or scuse me distribution of shares instead of cash and that's what they did and sure i have your time correct you're saying that the plan trustees distributed the stock to the planned participants made this kind of quasar i maybe will buy your shares and maybe we won't all before the f d i c said it would not permit doesn't change what their obligations were to the participants and beneficiaries of the plan and that is very clearly drawn in ten point four as you don't get to protect to distribute anything but cash and there are really very important reasons for that it was a plan's obligation to liquidate the assets of the plant and make then the distributions to the participants in the form of cash and that's the reason behind that's very important it's much easier for the plan to make distributors meet to make sales and to liquidate assets that is for individual participants and was this stock not registered limited marketable that it was relatively illiquid they don't sell the stock on the stock exchange so we've been what once they did it and soon they they violated the clear terms of the plan stock is not cash cash is different from one of the problems that this whole situation created in his situation their own making is that once they make that the transfer to the participants the plan loses its ability to sell the stock and that's then make the transfer of the payment distribution to the participants in cash that in fact in this case two individuals bought stock some of the stock from the  participants and again the in possibility argument really is a red herring that's not what the issue is the issue is the clear violation of the plans provision ten point four the cash be distributed but also just a couple things to notice well the distribution in june was more than six months before the one year period in and ten point four also ran and also the the letter that was sent to the f d i c requesting permission didn't even ask permission to buy all the participants stock i think roughly half and so again the undisputed facts with that in and of itself of permit that was requested had it been granted would still not have permitted the planned to basically to fulfill its obligation to buy all the shares that is correct your honor but of course you know he would allow them i just wouldn't require absolutely correct the account receivable and the distribution or the allocation whether it was allocated to dispense or it was not is irrelevant what's undisputed here is that the in the trustees resolution where they say it's the right of the two or the plan to make that demand in also it is actually stipulated it's a stipulation of fact that this its property or asset of the plan that was entered into before trial and also defendant opening brief they say the facts are undisputed at the time the plan was terminated its assets included a one hundred thirty two thousand five hundred  six dollars account receivable whether or not that was allocated to the participants is completely irrelevant as well i'm going to fight changes just for one thing one one aspect of the case that i am concerned about is what's the government's best authority that the district court can impose a higher rate of pre judgement interest in the general treasury bill great your honor the district court enjoys of course discretion on whether to give prejudgment interests and also what that rate would be and it's not unlimited that's what i'm looking for it's what what is the authority to impose what is in effect a punitive rate in this case well in this case the question by what's not a punitive rate ok and in this case the court first made the first step of the determination was that prejudgment was appropriate and then the question of what would be the appropriate interest rate comply and looked at the interest rate that the that the department labor uses in those circumstances and that interest rate is the r r c rate and so the court considered that as part of the  make any finding that that rate was compensatory because our our standard in the circuit is at the pre judgment interest rate should be compensatory in it if that is correct your honor and looking at courts will look i believe this court price look toward agencies and their expertise to determine what is compensatory in different situations and in the case of the voluntary compliance program that certainly is the consideration of what would be the proper compensatory rate is that in the regulations or the statute for that the o l regulations for applying the i receive rate is there anything that says that's a compensatory right i would have to check more clearly  know it would be a windfall for people who other than people who voluntarily reported involuntarily complied that they would be paying a higher arcee rate than those who did not and so by public policy argument that the district judge had assessed the last value the difference between cash and a limited unregistered stock and somehow figured well this rate rough is rough justice what they would have lost that there was no effort to determine any all right and i thought you just said that the district court said well if you got this rate for the voluntary compliance then you got these folks over here how is it fair that these folks pay less than the people who are involved in the voluntary compliance program i think what the  district court's opinion tries to draw the line is how do when you have a voluntary compliance program like that and that has been used in the aesop congress he's been the research context before this  equities it wasn't so much a punishment in any particular case the looking when you have a voluntary compliance compliance program that is important and very important public policy interest in how do you support that and one of the ways is the application of an i r c right now we're not saying that that in all cases it has to apply but that it's appropriate for a district court to look at the fact that there is a voluntary compliance program like this