elements this case really turns on a single sentence in a very short page and a half or resupply on the plan and the definition of what is an initial triggering of that that definition could not be more clear it required the benefits under us severance guarantee benefit program will become available to eligible employees conclude that it's ambiguous i think that this is simply under the clear definition that definitions that the dictionary provides for these words and simple rules of grammar that it clearly provides that the status is structured makes it clear that it has at least i think given the wrong answer you want to see a good result i'm sorry your honor i think you need to say that the change of control did result from the st amendment resolve and certainly something that neither of the parties or the court a it did not your honor that the district courts conclusion was that the administrators decision was erroneous under any standard of review despite of course initially the district court believing that this language was ambiguous and was something that the parties had litigated in had the opportunity to present no party including finances and certainly not defendants have ever alleged that the plan was invade us so that was not an issue because the district court had made the statement about potentially about the planned language being ambiguous the magistrate judge allowed to scratch discovery at which point we commenced discovery but three weeks later before i know it's got the discovery responses in evidence that they've been fighting over this summary judgment motion was filed which of course let the defendant's five thousand and sixty request but your honor at that point and by the way i should also say that a magistrate judge if it allowed discovery of the conflict of interest issue but that discovery had not been indicted by that time but summary judgment motion was presented by finance so the record about that and the evidence to demonstrate that there was no conflict of interest it was not presented to the district court plaintiff's arguments on the conflict of interest and this is plant the only way that that could be undermined is if in fact there was a structural conflict of interest that rose says such a level that the courts skepticism in reviewing it rising to the level that the reviewing court should consider with anything more than minimal skepticism the administrators of assessment and interpretation  the court has has repeatedly said that that level of skepticism that you bring to an abuse of discretion review when considering an inherent structural conflict is there we had a director of the human resources department of liberty mutual who was the reviewer of the administrator the liberty mutual administration benefits plan administrative review the level of appellate review was in any way motivated by the administrator making any economic assessment that was going to benefit  plan sponsor specifically it turned on actuarial tables and how much those might have cost and the evidence was the administrator and the reviewer had not reviewed th specifically said what officers of the company had authority or who could act on behalf of the company in interpreting and adjusting and deciding issues under the plan and it said that any officer to do that had to be authorized in writing by the company there is no authorization at all your honor there's nothing in writing that apple's board of directors of the company provided to anyone giving that kind of discretionary control it simply did not exist the st administrator appointed under the plan was by microchip after the acquisition  will try to break this down into pieces to respond to each part of that argument but let me start by explaining why judge gilliam concluded that the standard of review doesn't matter of the standard review has to be the no vote for the reasons we stated in the brief and let me start by explaining the context so we understand what this act mel ion was the the board of directors compensation committee on difficulties attracting and retaining employees as a result of that speculation and therefore it directed before our highest officers of that company to develop a severance plan that would encourage employees who would otherwise be concerned about losing their job to the new merger partner to stay with that mel until any possible merger was consummated fairly straightforward reason for developing a severance plan then in fact they did develop a plan effective july st just six days later and they announced it to the employees on july th and the letter to the employees in the record two hundred and thirty nine explains that the reason is to use the concern about the potential of coming merger now at that point admiral had no idea whether it would affect the merger or not but it was looking so what does the plan itself say because it's language of the plan that says gilliam relied upon a granting summary judgment so the one plaintiff the plan sets three conditions and only three conditions the eligibility for severance benefits in the st place the plan has to be in existence or you look at the very top of the plan it says it's in existence now starting july  and fifteen but it will terminate under vampyr st three months later unless there's an initial triggering event and initial trigger event will extend the life of the plan for eighteen months and that's the only reason there's an additional for bring back if at melle was making progress on finding a merger partner and actually did find a company that could merge with and that three month period then the severance benefits that atmel provided would be available for the eighteen month period so condition one and that's the one that we're really focusing on is whether the plant whether there was an initial triggering event that continued the plan in existence for eighteen months then there was in fact an initial triggering event no one disputes that there was a definitive agreement between at mellon a company called dialogue that occurred in september so before the november st deadline that meant that going forward the plan was in existence for eighteen months following the date of that agreement with dialogue that's the only reason the initial triggering event matters that that agreement with dialogue provided that in the event of the merger as had been consummated dialogue would be the surviving company and other words it will result in a change of control the reason this agreement with dialogue satisfy the initial triggering event requirement is because the surviving entity would be the other company not at melle the severance agreement they want to keep the employees if atmel was going to be the surviving entity there's no need to provide the protection to the employees the reason you want to protect your employees is against the new company firing them if that new company becomes a surviving partner so the reason it says will result in is simply to make clear and this is a judge as the only i'm held in this is the language says to make clear that if there is a definitive agreement before november  it's going to be one where the outcome is that the new company not at melle will be the one victim troels the company because that's where you have to protect your employees from that condition one condition to very simply the conditions the employment be terminated without cause now under microchips construction there's no way any employee could possibly have known whether the jobs sorry whether they would be eligible for severance pay if the merger were actually affected with this condition this is a th condition that microchip sought and it's a it's effectively a condition subsequent it's asking that the triggering event which kept this agreement alive for eighteen more months retroactively ceased to exist if in fact the the initial partner dialogue i didn't end up being the final partner and what that means is under their construction let's say dialogue let's say there was no microchip let's say dialogue entered into that original agreement without mel and checked before november st that extends it for eighteen months but then they changed one of the terms of that agreement let's say instead of four billion six hundred million dollars which was what dialogue offered they decided to change it to four billion five dollars or change something else in that event according to microchip there would be no right to severance benefits for any employee the employees would not have any protection and the whole point of the severance plan which is to keep them on board once it was clear that at melle was going to enter into a merger agreement with another company that will result in the other company being the surviving entity would have had no purpose in logical construction of their argument that has been an agreement now as as judge trier pointed out there is an entirely separate set of reasons why judge gilliam was right and that it is because of laws on the nd the is conclusive then binding on all persons and to be given the maximum possible deference allowed by law well in fact that's exactly what at medals for executives who drafted the plan do that and we have all that evidence in our brief they wrote a letter to the plaintiffs they submitted frequently asked questions that microchip signed off on explaining that yes regardless of whether the and they did this two days before signing the agreement with microchip well everyone knew they were in negotiations with microchip and without a letter says is that regardless of whether the merger partner is dialogue or microchip the plan remains in existence this is asked november st so it means they had to a perceived there have been an initial true event and you will be entitled to those severance benefits under the sick room and if the other conditions occur so there was a  that's that's true there are others like i would potentially result but my perch ip is actually making a different one you look at the breed they're always talking in terms of what whether it did in fact result they're looking backwards in time so let's assume that that's let's assume that there are possible readings and you look to the context not just the purposes but look for example of at the st condition the  condition this is a on the st page a change of control actually occurs well if will result meehan's does in fact result and that's microchips argument will result mean in fact result as there construction of it then a is per fewer surplusage because that's that would say there's an initial trigger event that will result in change of control meaning it will in fact and doesn't fact result in a change of control and then the nd condition is exactly the same as microchip is just offered its construction of the st a change of control actually occurs that can be what they meant it doesn't protect the employees it doesn't serve the interest it's not the construction that at mel's drafters that the agreement itself says will be conclusive in binding pre merger reached and so therefore whether it's the nova standard of review or an abuse of discretion standard of review where you factor in the conflicts of interest that mr physically was talking about there's no other way to construe this agreement in context and therefore context of the agreement before you determine whether it's in the us and although a word standing alone could be ambiguous in that context it is not in the us but if it were aimed at us all that means is that we would have to prevail the reason that mr kosuke use argument is incorrect about the plan administrator having discretion is because under firestone under kearney in order for that the citizen to be discretionary there hast it has to be exceedingly clear that the language intended to vest that discretion and you can ask for the reasons set in the briefs have a provision that gives the at me director's conclusive and binding discretion to construe the agreement pre merger there is no discretion to undo that after the merger occurs in fact as the reason company from just firing all the employees butt out cause and then saying oh the severance agreement doesn't apply we don't construe it that way the reason that clause was in there in the agreement itself the plan itself was so atmel could lock in its construction to the extent there were any possibility that the word will read out of context might be perceived as an ambiguous word now what evidence is there that someone is authorized to make that  company obviously can only act through its executives and if you look to the minutes that i cited at the outset of the argument before principle executives of the company are the ones who were delegated the c e o steve allowed the senior construction you are protected don't quit your jobs don't worry you're protected if you get fired without caused by the new company you get the severance we promise to keep working for hat mel help us get to that point where we get to the merger and all that is in the  ministry of record and has never been rebutted humans start of record so in terms of your review since in a risk case is reviewable based initially on the plain language of the plan and then based solely on what is in the administrative record because there is no evidence to contradict what we submitted in the in our claims which is what the administrative record consists of the only evidence supports our construction and is therefore binding should be accepted by the court original definitive agreement of price or some of the terms had changed to matter of fact the bandits who consistently argued to the court below that that would not affect to a a change that would not change the fact that it was a definitive agreement that resulted in change of control was ever created and it did not is this correction area already to any of those people that plaintiffs referred to specifically it said these officers these four designated officers could draft finalize and fully implement a plan those are all secular functions your honor those are or are setting it up they are not interpret and yet no power was given to them by this writing or any other to interpret that plan absent that this city's amourous letter that is outside of what the district court looked at refused to look at and we believe in appropriate to consider  wasn't something that went to the abdomen please broadly went to a group of people who had an additional severance plan protection the director level employee and only one of the plaintiffs in this case got that letter your honor and susie's the morris who wrote it did not have the authority under the terms of this plan to interpret the plan when in fact no document they gave it was a judge i cood a decision a view at i think you're talking about gabriel gabriel thank you rhonda in gabriel made a very clear how to plead and what to seek when you're trying to strike out of provision in a plan there is a plan reformation based on equitable principles there could be a stop all clinics refuse to leave the plan was ambiguous they refuse to see this kind of really bite despite the sentence repeated only by expressing that that was what it seemed finances were trying to do by striking out the words that will result in a change of control that's the only way of interpreting it the way clancy proposed and this repor