not a problem at all thank you your honor this case involves dansko and benefit trust companies directed trustee trust agreement for the dansko employee stock ownership plan and this morning in my opening remarks i'd like to do three things st brief out provide you a brief outline of the facts that applied to both appeals of ours and ends his nd turn to the decision of the district court on  resolution substituting a bit of a trust company as the trustee that was on june the fourteen june th two thousand and fourteen and the next day benefit trust accepted that appointment as talk about a little bit about that that two thousand and fourteen was that an amendment was that innovation how should we understand the relationship to the original contract it would do is i think in the part the original agreement it was we were substituted but of interest was substituted for reliance trust company and all of the duties all of the rights all of the responsibilities substitution that is correct or a why is it something you should happen by amendment why can't we just do that as an amendment that added you it you you could view it as an amendment but we are the new trustee otherwise the trust fails and a lot of bad things happen to dance go and the participants in the plan but if it's a substitute if it's an amendment the a why should we read the integration clause as as of two thousand and fourteen rather than as of two thousand and eleven because we are the new trustee negotiations would have been merged in all of the duties rights and responsibilities it was appointed as the trust agreement says it talks about prior in successor trustees in their responsibilities are you now an original trustee or aren't you a successor trustee under the terms of that agreement we are replacements and successor trustee but i think that's a distinction without a difference right the point is we look back to two thousand and eleven to understand who was the st trustee and the successor trustee if we look back to that and we don't you know when that a signature line of the agreement was dated two thousand and eleven why don't we look back to two thousand and eleven as the time of the integration clause because this was a essentially a  nd agreement a new agreement between these parties but you're secure trust is based on the original agreement the original agreement doesn't go away otherwise you wouldn't be a successor trustee oh and let me ask why wouldn't the integration cos me the immigration cause we are who would be that would address that issue and the parole evidence would be bar because it would if it was used to bury the terms of the for example evidence on the other hand the evidence that might that was suggested in the briefing by dansko is parole evidence because of attempts to vary the terms of the pretty steady explain the who what whe very broad and the women study explained the claims that issue here were specifically intended to come within the scope of this indemnity provision the court's construction we didn't argue it quite this way seems to be a result in search of a rationale there was no reason to go on the torturous search for provisions within other provisions outside the in the provision to explain why it might not be enforced in th circumstance and as to the question of whether this is a st for the claim or a party claim or further court back to the to have stock if this was a st party claim it would be a  any act of by going to trust it seeking its own damages so it is a rd party claim if a court were to make that distinction  or the well it looked like there was a so but it's saying hey we we can do this and then there was a decision made by a benefit that we're not be in the business of giving various opinions so what happened well there were discussions about a possible refinance transaction at board meetings in september and december of two thousand and fourteen for benefit trust company suggested how long it would take to do the kind of due diligence required for a trustee but never accepted or never was asked until the december th board meeting at which time mister fox on behalf of the board as president of the company asked benefit trusts to engage as a director trustee but no terms were ever read to you there was no written agreement which was required by seven point three and going to trust a cli you're your implicit question is why did why did this so much time go it's why did why did benefit trust get out of this business with the court may recall in the summer of two thousand and fourteen the green bank decision process negotiations of the d o l and many trust companies market alliance did and even the trust company that was engaged by dns go to come to an issue the transaction which didn't close until june of two thousand and fifteen wasn't started until march of two thousand and fifteen st bankers trust that the market as well  you know to stop it can only be based on an express promise is there any pennsylvania law that supports that assertion that you need an express promise i think it is x we have a federal cases maybe just jumping around a little bit with respect to the questions on the application of the enter creation clause the integration clauses are temporal in nature they only are representations or  other promises that were made prior to the execution of the agreement and there's no question here that the trust agreement was executed in twenty allotted by reliance and and dansko it wasn't until tw that in any way benefit became part of that transaction so the so the only thing that that would happen in terms of the the only aspect of the integration clause would be to still have be a fact a saying that any representations in warranties that integration clauses is still there right well simming for the moment that the integration clause is still there it is temporal in nature and it only applies to representations in marnie's that were made prior to the execution of integration clause in the original lease the one of the parties brought a claim saying that they were misled into entering into the amendment to the lease the other party claimed that that those oral court which is an intermediate pennsylvania appellate court on pennsylvania law and i would see no distinction between a an amendment and some type of a substitution of a party and the other thing i would like to say on that is is that you know i blanket the district court might benefit have it both ways you can say that this is a new agreement and say that that then all the terms of the prior agreement are far apart there are included and then it's the same time say that all the that since it's that you still have to incorporate into the agreement all the terms of the original trust again and what then if it doesn't acknowledge is that when the board resolution from dansko was it would be to substitute trustee and that it would be part of the trust agreement dance and benefit trust acceptance of that was only stating to as the trust same contract mister hayes so you're now making a very textual argument and yet i don't follow all you don't seem to be as textual when it comes to trust agreement nine point nine the indemnification clause can i take you to that i don't have it handy but said you'd have to be very clear in the agreement and that is intended so and i did so directly answering your question your honor that if that's the basis but the one thing that i would really would emphasize is this is not the st party claim point nine did you or your council draft nine point nine because this was drafted before benefit was on the scene this was drafted according to the record it was drafted by reliance as counsel ok yes you were were you differing over this language i don't i don't recall in the record anything it says that that we were differing over the language and i think mister i think actually mister dean referenced that mister stoddard was a lawyer for alliance and he drafted at least you know in the record that is i'm just curious  it's simply not a st party claim and what you're and i would sincerely hope that most parties would not understand that they were held to reimburse somebody as the case goes on for claims they assert against that and it and when you are talking about textual basis of the claims there is you can't look simply at one clause of an agreement again we cited the court through each of the provisions of those provisions that they would not have been written the way they are if it was intended that this would extend to that to off st part to paul to a claim that dansko brought against benefit this claim to extend to dance goes lawsuits against benefit you would have had some provision in there and it says how you're going to deal with the reason why give us the fees and the court as i'm sure is aware you then what but you normally do is present actual billing statements and nobody would have contemplated that on i would never want to be getting my doing statements to another party in the middle of the litigation that's your best your best authority have anything else in the agreement wires ben interest of the plan and it's not so much a breach of duty as a defense that it was performed negligently they just refuse to perform it at all so you don't dispute that the language and all claims damages expenses liabilities losses decided ok so on that side have you cited any contrary case dealing with language like this well we certainly not that specific language but we have studied cases they interpret indemnity all right so in other words neither of you has a case on this fa fair dealing and we cited to the court for instance where they actually said that their main claim is for breach of contract and you wouldn't on one hand say that's my main claim and then dismissed the agree that the claim is no longer buy it you're not asserting it so that and i would also look at the fact that both the allegation as to the breach of the implied duty of good faith and expressed provisions of the contract were sent forth of the agreement to to fully flesh out the duties that the party has under the under the contract and so i don't i think you just would have certain claim and then at the same time wait wait it were adopt an argument to push you out of court they weren't they were making express factual admission but they were they were not withdrawing the entire claim that had been asserted the theory of club of of action at ends and opponent can't cite any pennsylvania cases about express promises but we had this this language from c and k a while back that some just the courts are relying on let's hear what your position on apply in a commercial transaction for instance saying you know if you're negotiating a contract and you have that you think something is important to you and you know what is the contract that's on you not on the other party but that's a little different when you're talking about a  would submit your honor that it is distinguishable in the extent that we the promissory estoppel claim is not based on pre contract and though she agent's it's all actions taken after the contract was executed and it's at least at the time he was he was benefits reprimand at the time deposition perhaps but certainly at the time that he was involved in this he was benefits represent representative and he said i thought i understood we were going to prepare the here is that's not clear at all and we think that that the court should review agreement to extend to that but even if the court disagrees with that it is certainly is not clear whether it is or it isn't so when you have your your  trustee i mean someone who has been to sherry obligations you want to plan saying we're going to do this you're entitled to rely on that because it did that i trust he has the most duty of candor and it was not just this little it was six months of of of mean under the law we recognise conduct can be the same as words and if you're saying i'm going to do the analysis you are participating all the preparing for the meetings get advice and saying hey i think the owners are going to have to take a haircut on their g i believe it was between forrest of six months if i get my recollection is correct and so and cleared and the other thing i would say is it's just it when you look at it it doesn't make any sense i mean if you think about it in tw at least in the world that i once lived and normally get a fairness opinion either primitive vestment bank or perhaps accounting for but not normally from a trustee so and i recognize i used a shorthand but as i understand the process what you need is the a trustee to to ultimately render the opinion that the restructuring is in the best interest of the plan participants now it will go out and get a fairness pinion from from the from i believe a banker and it will use that as one of the facts to base it it's also mixed pollution and so i instead saying i just use fairness opinion is just kind of a sure and for that that that that you rendering that ultimate opinion and it just wouldn't have done that if you thought that the person in the end you're hiring is not going to do that and alice's is now you've got to go out and get somebody else you go through all this due diligence you h be i may be the court would like me to sum up at this point which is basically i would submit to the court that all the issues we've been arguing as to what they what parties understood whether it was reasonable for quote the his discussion of nine point nine and i'm point ten in the brief and full well not in full at least that part of his testimony as to the issue of waiver that was raised in the questioning that is our position the existence of well the the language that is going to use was not inadvertence and it didn't maintain the contract argument in the reason is that the other thing that supports the language that the district court quoted in weiss ages six and seven of the appendix is their billiard to respond to any of our contract arguments in their opening brief they knew they were going to going to be able was not going to accept an appointment as a discretionary trustee dansko did nothing until january and in january after the holidays it began interviewing companies to replace benefit trusts benefit trust was replaced in mid february by st bankers trust but that agreement was only for direct a trustee agreement st bankers trust was not engage separately as a discretionary trustee until mid march andy and so the delay period was much much of the delay was a dance goes on doing and then benefit st bankers trust got to work on in its discretionary trustee capacity in march and the transaction closed in mid june of two thousand and fifteen that's the that's the time my time is expired i thank you very much for the opportunity to argue this case