to first of all i'd like to reserve these ten minutes for a bottle of your very keep record your own time the receipt claim i think is the main claim and it involves the policy issues specifically whether congress meant to regulate this type of activity and i think it's clear it established that if there is a doubt we are to err on the side of double regulation rather than leaving any holes and leaving a hole in regulation is exactly what the police have argued and what the district court found fund i mean it should be apparent just from the face of it that when you receive money from an employee benefit plan for the purpose of providing benefits that that creates a fiduciary duty not apparent on the face of  the statute makes a clear do share is defined in under risk among other things has exercising any control over assets doesn't have to be discretionary control any control over  assets there's no doubt that the south they trustees exercise control over this money that's conceded so the question the critical question here is whether those assets those funds that were paid over from the security fund remain the assets of the big three drivers fund in the hands of the south bay trustees alysa does not define assets except by exception and that exception is section four a one the two the insurance exception and the supreme court is a really serious exception and stated as i just stated that assets are only defined by is someone who exercises discretionary authority respect the management or exercises any authority or control respecting the management or disposition of its assets o voting of the fund that they can see they have they they took the funds intermingled it with their own trust funds and they had the authority to write checks from those funds which they did by give money with money began with the employers who paid it to the bakery drivers fund as part of the compensation for the employees and you know there's conflicting decisions at what point it becomes assets there but definitely once it's received by the bakery drivers fund that's an asset of the fund which my clients bakery driver trustees have a fiduciary duty over they then paid it over to  the south bay trustees so the question is whether it's unquestionably an asset in the hands of my clients the question is did remain an asset of the bakery drivers find in the hands of the south bay say that these funds are paid over to fund the payment of death benefits to security fund participants if you want this is on the excerpts of record fifteen page one ninety so by this agreement the funds are being handed over to the south a fund for this express purpose the payment of death benefits to security fund participants no other purpose is is authorized anywhere question at that point they could say that that we don't have to fund these out of out of the the money that's meant for our participants so they could i believe  come back and said we need more money to fund this plan type of receipt duty that that worse you're asserting here we're saying they can't use our money or the bakery drivers money to pay benefits for south they participants and make it on the same theory say we don't have to use  and then ask at the proper time for for whatever it takes to fully fund the the benefits you know again this is purely hypothetical so we're all sort holding that those trustees are holding the money it was paid over to then this plan this is created as a as a new plan so you have the original group t simple to deal with i can just deal with it quickly that that the critical part of that exception was not whether their insurance company and sure whatever you want to call it it's whether they're qualified to do business in the state that's what the statute says it says insurance company insure all these things qualified to do business in a state that's where they fell short because because of the deal replies and the research says they cannot as a matter of law be qualified to i guess where i come down on this to some degree is i agree with judge or a feeder when he said that the arguments that counsel make for security fund to fight common sense not only do they do that but they disregard the fourteen year history of the relationship between these parties and the four agreements that they entered into none of which require the south they trust to most other sides fund specially for their to do is understand the context in which this i do have the claim that was and the statement made on the letter when this when this agreement was delivered to our side by their council he said this with this letter i'm opposing a draft of the agreement between the two funds whereby south they will provide death benefits to security fund participants the thrust of the agreement is ten the kate that security from participants will they were treating this as as the security from participants joining into this plan as park at the participants in the death benefit plan that they add and therefore they were part of the large multi employer group involved in the and it's it's clear on the british motors case and under them a say in all the other cases that it's not always going to be the case that the contributions made by one employer or work on behalf of its employees will be used to pay that employees benefit there will be overlap that's the very nature of multi employer plans and our plan for fourteen years was treating these people as as participants in its plan like all the other participant honor that goes into a circumstance somewhere else i think you're breaking some ground here and we're trying not to break any eggs but in the process but we're certainly breaking some ground but what what do we do if i heard you say two different things now and i'm really confused i think his conclusion was quite that narrow i think you have to look at both the transcript of the summary judgment transcript of the motion her attorneys please get the full context of what his you basically have a different theory than  not your theory as i understand this warning is that these you are oppressed fund and they became part of your trust fund right and that's the case you think whether they became part of it contributions when they leave they do not get to take anything that they consider the excess that's left over that's part of it and that's one basis for this i think you also have to look at the circumstance in addition to that it's as well  had a right to do whatever you wanted with those farms just with you if they were another group of employees who are now covered as part of the paying through front and that's true and then but there's an alternative what's the alternative and that what's an asset which fund i think that that's also an alternative basis on which to rule in south a safer because here's the circumstance very simply they want to buy them if they could go to insurance companies and buy that benefit but they don't instead they choose to purchase that benefit through our malty employer fun right if they would use this money as a premium to buy an insurance benefit at the end of the insurance contract there's no way they can claim that that was an asset the difference left over was an asset of theirs to be returned nor could they while those funds were be used say that those are assets of our plan we're entitled to account things for them were entitled to sequestration of those funds we're entitled to know what you're doing with the investment of those funds or anything like that i think by benefit a fixed amount for a fixed price that's why this is analogous to that part of the  what's the difference with then you have to look at and say is this an asset of security funds still once they deliver the premium payments over the south because what you're looking at you're focused on whether it's an asset and i say it's not because once they deliver that over toss what do they get in exchange for that they're not delivering that money to us as an investment they're delivering that money to us in exchange for the promise to provide the death benefit for the thousand it to you for a particular purpose they're not giving it to you to do whatever you want with as long as you give them a benefit they're giving the money for a purpose well in order to so they were trying to avoid that kind of language the extent they can but it's clear that and the parties always treated this in effect as equal one of they talk they call the insurance they call the payments premiums it's all through the minutes of both funds and everything counsel for the plan he indicated that he was aware of several instances of this type of arrangement but it was not that common was basically the express or not certainly it's not what would but they provided this benefit you have a large pool of assets for this security fund you know once the best of both thing want to actively say you know we could've you know we should get all that money back so we should only pay such a generous union and therefore you're going to help them get very pretty at a lower rate and then you want to keep two thirds of the money that they were that was contributed for their benefits and you want to keep that as profit it's what are you did was unable them to get a lower rate than they could have gotten by themselves and that for that you want to keep two out of three million dollars the parties negotiated to get these rates and you got them a good rate we were able to provide them the security of having the death benefit they wanted for all of their participants at a rate that was acceptable that they couldn't have gotten themselves therefore we want to change it and now we want all the money back that wasn't didn't have to be used for these specific participants because money was being used for all participants in the me and the multi employer plans if you are paid out more in death to its members and told them they'd made of that investment we had a pool of investments around her from which to draw from for that if at the end of the three year term we determined that it wasn't an effective agreement that there was too much rest for us or were being too many  didn't start this fund off with a large reserve to take care of any of this that might occurred before the premium payments were sufficient to do that was there ever a point in the history of the agreement that you were underwater when you paid out more than the three subsequent terms of my assumption as therefore it was the plan was doing some fish had getting sufficient contributions which to me you know that the payments if that for providing the benefit of her the risk to that so those are real risks that you have you don't know when to look her and you but you have that risk that you have to pay out when they do occur and the nature of this plan was very simple they were providing a death have in there which would help cover for death benefits so it was all part of the whole it's typical of any malty employer plan that you have the whole was covered by the contributions from all of the different employers making the contributions and that's what they were doing you know they clearly agreed to provide the ten thousand dollar that benefit in exchange for five dollars and fifty cents per month that was your brain by the parties they could change in a time if they didn't like it they never viewed the money they paid to us to be their assets because they never booked it for example on the fifty five hundred as an asset on their plan they treated as an expense that they had to pay out like plans for solely for the benefit of the beneficiaries that you can enter into an agreement with an insurance company and you can make a deal to buy it guaranteed benefit policy from an insurance  no benefit from us a death benefit from us just like if they bought it from an insurance company or from some other source they were given away the funds that was the consideration from a private insurance company that would be very different because that would be covered specifically is because there is that exception here for insurance companies but you're not qualified but it's i agree that if we fit into that exception perfectly that would end it but i think you don't stop the analysis there because you have to at this point in this case it appeared to me that you agree on all of the facts or maybe not assuming the exemption doesn't apply and the question use them for the benefit of the teams to get to thinking says well in a mixed group if that's the question are there factual issues to be resolved or is that at this stage a question of law of what i'd actually like to pick up with that very last question about whether there's a dispute interposition there is no factual dispute as to liability that that follows is a matter of law from the records that's already in front of the court the only facts and need to be developed we believe this is for the remedy we're asking for an accounting to determine exactly what happened to this money what's left where it where did it go and there so there is an issue as to the remedy and i want to emphasize that the remedy isn't necessarily just a refund of the money you know that's been brought up but  would be happy if they used that money to pay more benefits for the for our participants or if they bought insurance to do that i mean there's a lot of ways it could be done the point is that money can only be however much there is which is which is a matter of fact whatever is there is left can only be used to pay benefits for the big driver for to subpoenas and that follows both from the agreements and from i also want to get back to that the hypothetical of what would happen if if you know if there was not enough money to fund these these benefits at any time which again never for their participants for our participants that they could have stopped paying the benefits until it was funded they could have asked us for more money you know again we're speculating but our position is they were not required to use anything but the money we gave them the funnies benefits that was the whole point of this this money was given to fund these benefits so there is no risk and the shouldn't be because come up here but you know they did have several choices they're not supposed to receive benefit funds are not supposed to be a risk that's the whole point of the recess to guarantee and to preserve these fund that that could have been done but that wasn't what was done and in fact arista does have special requirements for for a merger or partial termination of a of the benefit plan like that but that's a permanent arrangement and that's that's not what happened here if they did it would be a totally different story and there be other provisions of the risks that would kick in to regulate what happens  what we have here is two funds and the fund is different from a plan each of the funds here has several administers several plans and so this is just one of these plans that happens to be for the benefit of the bakery driver participants but the money is being administered by the south bay trustees and the administrative services is being provided by a third party provider it some think was never obligated to pay out more than it took in yes i mean how that would play out i don't know would have to speculate about what would actually happen but no we i don't think we could legally require them to pay out in both benefits  that's possible and it may have been made up right after that but that's again we don't know but i think it's a legal point is that that we we cannot require them to do that well if the first day three people died he could require them to pay those benefits over reasonable period well again it's a question well first of all do you do you do it judge it day by day month by month year by year i don't know i mean it's all speculation or over the entire period of of mean it but i think only thing is clear is that in the end we could not require them to pay out more than it was going in and again how that would be resolved is is a matter of speculation because it never did you see they take a different they took a different view on that as i understood counsel they they believe that their obligation was to pay death benefits for those bakery drivers that deserve them even if reserves or the contributions were insufficient which implies to me that a component of the five fifty per month involved the risk the thing might have to do that in other words it wasn't just good to fund those benefits but there was a risk was the case they would not be acting like a risk a plan like this supposed to the act like an insurance company and they'd be subject to taxes for that if they made a profit or claim a loss if they lost money you m so you're saying that if they wanted to pay get credit for it when your payments those who work they couldn't do it if they wanted to act like an insurance company you know you don't tell me about insurance companies the question is if they fell short and they didn't have enough money to pay and they still wanted to pay that if they paid get benefits for your members who expect of them in their god that they that you would not approve of that would be either illegal or improper no i think in that scenario they they they could have paid the benefits noontime back to us for to make up the difference if it turned out it was it was falling short particular case but in general if we establish a rule of law how is it going to work that's why we ask hypothetical questions and we speculate as you have commented at least twenty times and my  my speculation would be that under pretty much the same theory that we've been espousing as to are fine and they could they could say we are not required to use the money that they were obligated to reserve for our participants to pay for your participation so one way or another whether it's you put in more money or we stop paying benefits we have to change this that they they would not have the legal obligation at that at that point because they are in plan not an insurance company and that's why insurance companies are separately regulated if if this was just buying insurance like they said that's admitting it comes within that exception  the only reason that that these would not become assets in the hands of insurance companies because of this exception and that's why because they're not an insurance company they can't qualify it is an asset they do have an obligation