within the type of plan the plaintiffs were employed by pfizer for more than twenty years and they staff the benchmark federal credit union and then tis a patient an acquisition  or come much thirty one true but they did the next morning they're hired by benchmark it's self and then the question becomes whether benchmark is the successor to the same title etc yes but your honor that was not the terms of the plan the terms of the plan i'm required of them to get benefits unless they were hired by a successor employer and i think with the air it all depends on what success  see that we'll see it but if we assume with this is not a successor company in the corporate loss it does not necessarily follow it does it for purposes of employment it may yet be a successor company well the terms of the plan for small do not they don't look at the plan doesn't say the purpose is to provide benefits in the case of unemployment it says the purpose of the plan is to aid in the transition of employees it acquires y and the particular plant turns i think a very important because the plan terms say that you get terminations benefits unless you're retired you're terminated for cause or if you're transferred to a successor company of a company or any of its affiliates and then the plan later defined successor company of the company an article eight section eight point three which provides that the obligations under who was definitely terminated they got terminations notices they got cobra notices everything dealing with time of the nation they were hired again by benchmark but they applied for jobs at benchmark and benchmark could have it you look to the terms of the plan and the terms of the plan don't require that you be unemployed in order to get benefits the plan doesn't say that if you're employed by somebody after you're terminated that you don't get benefits it doesn't say that it's a success or employer it says a successor company of the company and it defines that somebody who actually has taken over the assets of in this case right and so like when for example five's or took over the assets of why it there was no termination there was definitely a transfer of employment and when those people transferred from rights to pfizer they never made a claim for benefits and they never got benefits so i was only in this particular situation where the things are happening here it is not seamless completely if they were working for a fortune fifty company now they're working for a federal credit union they were working for a company in which they had four one k benefits obviously if you have a fortune fifty company you're going to have a more rich well one k plan then if you have  their pension going forward forever but they get these things only if they were terminated by a successor company if the company yes  since this i don't know what's happened with of but at the time it was only to serve why it then pfizer employees was the only people who are eligible and that continued i believe for the length of the changing control period  for judgment on the administrative record what is that i've never seen it done and it's an interesting procedural question there are i've done a few of these cases and there's courts have approached it in different ways some court said well summary judgment doesn't really work here because we're not asking whether or not there's a material as your factor may and we're looking at this record was already sitting in a quasi appellate function we're now reviewing the district court we're really just trying to review the pfizer as part of the desire to have healthy meal options besides open a healthy mcdonald's on site they said ok but statement in the summary plan description that they had a question and answer format there one of the questions was can i start working again for fives or if i get seventy benefits the answer is well if you're providing services back to pfizer in any capacity as a contractor employee or anything else you cannot until that two year period is over then the services that these people were getting back that aspect in change the ploy or changed pfizer the benchmark they were doing the same thing is clear and i think that it's correct to view the employment of contacts which would fit with your donal's example but let me go to the the conflict where you had three of the five members of the administrative committee were involved in drafting i would suppose that these folks are asking themselves why they would have lost their prescription drug benefits and the rule of thumb is that a fair question that they would have but i think that the fact is there is nothing in the record to show that there was any taint the case law you see it in case law sometimes where you see comments coming out of committee or there were decision makers in the marine corps from their mouths about financial constraints about problems we need to we need to keep this down to a certain amount we cannot grant all of its benefit we need to keep some of these people you start to see that the structural conflict that person wearing two hats being wrong the business side and both of the benefits you see evidence in the blank slate on that there's just no record his there's nothing that indicates that business considerations were leaking into the examination of the plan the plan language how it should be applied and importantly what exactly happened to former employees and whether or not it applied to them thank you very much continuity agreement was put in place by three of the pied members a committee that made the decision so judge panel found that the continuity agreement was in fact designed in part to get them out of their responsibilities for paying seventy benefits so it seems like you are a member of a committee that you've just put together this continuity agreement designed to eliminate severance benefits but when you're asked whether you should get severance benefits side of the plan you're going to say no you shouldn't because of the continuity agreement and i think that that is a greater conflict of interest than any i've seen in many of the cases where it's just simply a structural conflict words to try to interpret what is meant by the way in which success or company often i don't think they ever really go back to the specific language in the plan and in terms of their decision that there is no connection between that definition of success or company of the company i would point to the fact that article i section eight point three says but whenever used by the end the term company whenever used by the plan sh mean an include any such organization after the succession so then you go back to the particular language of the plan that excludes people from severance benefits it excludes them if they are transferred to a successor company of the company or any of its affiliates so that language by the terms of the plan picks up the language in the article eight section point eight three which defines a successor company as a company that talk about the debt same desk rule it doesn't require that the play on committee look to see whether it gets similar benefits or salmonella pay just says if you're terminated benefits unless it's for costs you retire or