richardson your honour's the question in this appeal is very straightforward if the sale of an asset considered income from in point because the answer to that question is no the district court's opinion should be richardson to milton developed a large client base and while his clients may have been customers of his former employer wells fargo they were mr richardson's clients to the extent that these customers generated income for wells fargo that income resulted from the relationships that mr richardson had formed with his clients ever many years in this business these client relationships are referred to as a book of business somebody book and that book of business  ers those client relationships that book has a value now recognizing the value of those relationships wells fargo established a program that allowed a retiring financial advisor such as mr richardson to in effect sell his or her book of business to another financial advisor and this was the financial adviser succession program under this program the financial advisor was compensated for the value of those client relationships and that is exactly what happened here after he became disabled and was forced to stop working mr richardson agreed to sell his book a business to another financial advisor and as with any other sale of any other asset they negotiated a price and under their agreement mr richardson was to receive periodic payments every five years and he didn't this is judge wells and he didn't get a lump sum he's getting payments employment compensation from wells fargo well that the payments are recorded on a w two form and the district court seem to assign a great deal of weight to that but it does get to form is issued for wages other compensation and the kind of payment that mr richardson received with other compensation was not salary it was not compensation for work performed these were not retirement benefits and they were not severance  compensation for what mr richardson sold under the financial advisor succession agreement the value of his client relationships something that was personal to mr richardson and that he had developed with his clients over many years  reason the pay stubs characterized the succession payments as earnings they do not your honor they're just recorded on a w two form and you have a check there they're there they're actually very silent on this point and that's yet another reason why we think the district court your honor applied perhaps too much weight to the fact that mr richardson received death and your hon what we're talking about here is the planned definition of other income earnings and you'll recall from our briefs that mr richardson went through quite a lengthy process to try to get a straight answer out of liberty life as to why  cut his benefits sixty eight percent of the plan defines other income earnings as the amount that mr richardson earns or receives from any form of employment including severance or any amount that he receives from any formal or isn't this designed to say that this is a disability payment that was and the person can even come through other forms from employment that that would be set off against it and as judge wilson said it it is a payment or as a result of his employment with wells fargo obviously there's a debate about what exactly you call it there's no question that disability payments can be offset by other payments that the disabled person in this case mr richardson receives but for example if mr richardson sold his house or some other asset that would also set his disability payments and your honor asked and i'm glad you brought this up whether or not the payments came from wells fargo it's a true that the check says wells fargo it's issued by wells fargo but the financial advisors session agreement says that the payments are actually based on the the receipt by the receiving financial advisor in other words while the receiving financial advisor does not  of eventually there are situations in which wells fargo will be responsible for making payments that is if they're really if the receiving adviser kind of hoops out and then the successor to the south of eventually there is requirement that wells fargo actually make some reduced amount of these payments under the agreement is that right there is a situation where payments can continue but at all times the payments are contention on the business remaining with the company because that's where the value is is that he's client relationships stay with wells fargo so i wouldn't characterize this as a payment from wells fargo if brief or liberty life says and it's great that wells fargo makes the paintings in accordance with internal revenue code section forty nine a isn't that an employment tax provision and so therefore we should construe these accession payments as other income earnings if the payments are made in accordance with four ohm and they have the internal revenue code  deferred compensation plans for information about a furred compensation so this is something else this is something else there's a case that we cited on page twenty two of our initial brief out of the southern district of new york the talks about the issue of whether an agreement was an employee pension benefit plan under risk and that's in that particular case the agreement stated that the parties intended that the agreement w comply with section four not a of the internal revenue and despite this language the court determined and we would submit correctly that the agreement did not result in a deferral of income it noted that the agreement did not provide for pa work performed or deferred tax treatment of any compensation so just because there is a reference to compliance with section four not a and a plan doesn't transfer in agreement into an arrangement agreement and how it should be handled so that if you just briefly say what your reasonable interpretation is that would call in to to question the district judge's decision absolutely on or our interpretation and i may be a bit simplistic but the issue is really quite simple is whether or not a payment like this is the sale of an asset or something related to a point and as i said earlier in the larger sense it's related to employment because these client relationships were developed over the years of the employment but that would be true of any asset that somebody might sell and i do want out of my mind i have left the very and liberty life interpretation is not reasonable but if it is then your honor hit the nail on the head a moment ago with your question then we have a situation where the policy language is capable of being interpreted two ways s several precedents the policy is ambiguous and the court should adopt the interpretation offered by mr richards the record here simply does not support the district court's conclusion payments received by mr richardson for the sale of his book of business earnings from any form of employment agreement itself disclaims the creation of an employment contract perhaps even the appearance of employer employee relationship to those interpretation is totally disabled has paid monthly benefits to him from the outset and continues to pay but the question is not one of disability but whether the  can you see there is language in the succession agreement with disclaimed that it's an employment agreement and i know you'll give me the precise language but something to talk about that is the fact that the agreement disclaims that it's a contract of employment doesn't that create an ambiguity that would at least for require the court to go to the next  participation to another financial adviser so the argument that has been made from the outset in fact was made before the decision to reduce  asset has not changed nothing done or not done by levity and appeared with the making of that argument liberty did not except that the district court did not accept it and what has been said before the notice of an adverse decision need only substantially comply with the notice requirements and that all of it does substantially comply that mr carter who just completed his argument  thank your honor your honor there's been this discussion about whether client relationships and book a business can be a tangible asset and i think that the argument we heard a moment ago that we're treating it as if it was something that could be sold just like a used car or a house to use my algae and the answer is absolutely you absolutely can sell client relationships as an asset i'd invite the court to think about what happens sometimes you hear about small town or maybe big town doctors or dentist or lawyers or an assault practice and they retire and when they retire they sell their practice to a younger professional and when they do that they receive some kind of value for what they're selling payment for that and i'm sure that would include the furniture and the equipment or whatever it is in the office but also include something else it includes  relationships and those patient relationships that the professional built up over many years and those relationships have valued wells fargo knew that when it established the financial advisor succession program and that's what mr richardson sold his book business now the dictionary definition of tangible is something that is capable of being appraised at an actual or approximate value and if we look at the process here when he negotiated the terms of the sale call the transfer of it was ultimately a sale that's what they did they appraised the value of his client relationships of his book and then they assigned a price too they put a value on it in fact that price was actually renegotiated over this in the record where it was changed after the initial agreement was signed so this was negotiated just like any sale these are not payments for work performed not payments an employer employee relationship not payments from having a paying job the only source of the payments is the succession occurring and this was just stated by counsel for liberty life that is a separate contract a separate contract that was negotiated so i would urge the court to look beyond what the paycheck say now i do want to this is just courting can i ask you let's say that that decision is reversed let's say the district judge makes the same ruling under the succeeding steps and it seems to me that you're and then you again are arbitrary this in our briefs and i won't i won't go through it unless the court would really like me to take up that time but what we would suggest is if you look at the record you see that mr richardson you know i appreciate the comment that i'm skilled  ut mr richardson had no meaningful opportunity to present his case to wells fargo had no meaningful opportunity to explain any of this and we had a situation where what wells fargo did was it adopted a hoc rationale after the case was in with a geisha as to the reasons for its decision and the district court based its decision almost entirely on the arguments at liberty life developed during this litigation not during the process now there's precedent in this court i'll acknowledge that a post hoc reasoning can be considered but the courts have said that while a district court can consider self serving post hoc explanations they should not be given much weight so we would suggest that when you look at the remaining steps of the of the williams analysis and really you're getting to the last two  to make a decision here that mr richardson is absolutely entitled to win and that the the decision made by liberty life should be reversed once we get there that that's our argument just like the small town dentist just like the small town doctor or whatever mr richardson sold something to the receiving financial advisor mr fitzgerald he was compensated for that and the policy doesn't have any language saying that his benefits can be offset by those payments if liberty's argument is correct and we would submit it's not but even if it's reasonable and correct then we have a situation where two two interpretations of policy language word vanished and that situation district court commits error when it adopts the reasoning and danced about the insurance company would ask the court to reverse the district court we think the court could actually go on and consider the remaining steps i thought about that a little bit i'm not really sure what's next but if the court doesn't feel the record sufficiently developed it would have to be remanded thank you your honor