of the statute creating functional producer a liability that the decision should have been to deny the motion for summary judgment i'm going to go back to the capas case which cites the is st of all a th circuit case which is not controlling on me is just helpful for me to understand what the deal was when i read perhaps i said influence without more it's not enough so i said i'm going to have some more have you here you've got to have control over what happens and that's what i thought the district court said can't find any control well you can be effective control it can be an effect effective control isn't a direct control it doesn't have to be check right in control pursuant to slagle pursuant to summers pursuant to rodriguez it can be incorrect control it can be that the nature of the relationship between the parties is such that  at answer is yes and no we have to look at what they say and what they do because the nature of what they say creates the reliance by my clients on what the now i think that it is part and parcel of the analysis of the relationship of the parties and whether or not my clients have ceded control of the management of ministration the plans  case out there that says if i say i'm the administrator or the plants are you sure that i am the administrator but what i what what we say is that that is part of the relationship that has to be analyzed are the relationship that rodriguez the review again looking at the most analogous case which granted is not a nice party case but look at the most analogous case to this matter which is the rodriguez case the rodriguez case involved like this case a long term relationship case it's interesting that i'd keep corporate versus general american life insurance says the cast for determining about the fiduciary is not does not turn on the contract but turns on the fact of what the party does so it doesn't seem to me that then what the party says or what the party doesn't say is not the thing it's what the party does so then if i look at what a party can do without being a fiduciary even if i look at the deep department of labor guidance on what you can do or not do and not be a fiduciary and i read all of those i'm trying to figure out what is there alleged here which they did that's outside of even those guidelines and therefore why is the district court wrong that's my problem yes so  my counter to that your honor my argument although there is no calendar i'm asking you to help me yeah i'm not trying to be counter here i'm trying to say ok i can look at the contract because i look at the contract you're out it says they're sherry's parian we do not and will not be so your you can't win on the contract but you've got idea helping you so i look at what they do and then i go through and i look look what even the department of labor says you could do it can't do as a fiduciary and i go through eleven of those things and i can't think of anything that cuba ledge that they've done which says there is then the  things are why and they dictated the amount of the contributions are fifty seven i cannot allow you to contribute anything more than fifty thousand dollars that's not a recommendation that person who's assumed control of the management ministration plan and he's telling my clients what they have to do not as an advocate that's not quite accurate because he was telling them in context that there would be penalties f necessarily think that's true but they might be on a better stead if they explain things the client because that brings me then to the november th two one thousand and fourteen five letter which is really the crux of this when that when the plans are closed there's no way to a what if you've now fixed it at least the amount of over fine that was in the plans at the time in the old refund is actually groveling even though they're not contributing to the plan which we also contend relationship between these we are a long relationship you may want to give us a little bit on the other issue because you're out  you got to turn on i will he will be starting with the fifty five thousand and fifty five jurisdiction case i will be vacating this seat and then we'll play musical chairs and then i'll come around to address the fear issue so our split of time is going to be six minutes and six minutes with a reservation of three minutes rebuttal only for the fee appeals are ok so i will  after you have your primary argument on that we were told that the total time covered everything including like we had to split fifteen minutes so that we in that fifteen minutes the test doesn't turn on the contract but on the fact of what the party does yes you're on the right so if it depends on what the party does you've heard what councillors yes if your clients did why did that not make them a fiduciary because iran they did not exercise any discretion work control regarding the operation of the plant or its assets which is a dollars because that was the maximum allowable not the old contribution at that time but you also goes on to say in that same letter that once we have both your eager and valuations completed we have the two thousand and ten segment rates the iras publishes we will be able to give you a better picture so at that point in time he was telling them that as far as funding the plan he should stop now because we don't know what the entity you're going to and authority to terminate the final was the client does themselves my clients did not have the authority or the ability on the law to terminate the plan and gave a recommendation that the plan should be to because of it having a reason for fun instead of is what i was exactly it wasn't exactly a recommendation when you go to them and said you got to do this and here's what you got assigned to do it and it's all prepared advice from us a nd party if they had questions about it but from the perspective of the plant administrator in giving what they believe to be sound advice and recommendations regarding land this was the action that was required under the circumstances so they gave advice that under the department of labor and the department of labor  your your people met with them your people told them the plans were over funded they needed to be terminated they gave you your client gave it then i am the prepared grafted corporate resolutions telling them to terminate and told them to sign no raf to give credit to that well your honor if you can give some credit to it but it doesn't still put the signature on that paper from the point those they thought it was given a recommendation of the plan was fully funded and it should be terminated these are the documents that i would execute to go through that process but it was up to the the few here e who are the directors of the insect what is the board of directors of the company that took your but you challenging the now the fact that you were a war piece correct correct vote and and certainly the briefs are comprehensive on all these issues i do have two additional points that came out of a cases the th circuit has held that where a losing plaintiff proffers no evidence demonstrating their current financial assets and showing their ability to comply with the fia war their counsel what is my standard or a view on this issue i'm used to discretion so what is it that i have to find the district court did in order to views its discretion in goes through them he applies them it lives them down tapes both sides drive to decide what to do how could that be an abuse of discretion the method of application  support a reasonable basis and if you look at the documentary material there was only one thing they looked at and that was a declaration they are expert at the district court did not accept that just the plaintiff's theory and didn't consider for instance the record as a whole with all of the contrary evidence that shows documentary evidence that shows the opposite and there we to be fair i've been enough jury trials to know that you could have a lot of evidence in the record but it can be contrary but if there is any substantial evidence to sustain what the jury did prove that it was a risk case now looking interests looking what happened here and looking at you what on under the arrest under the arista law it does seem to me that it's totally out  don't if you're fucked a buyout and you're left with this i t corporate definition that doesn't turn on the contract but act on what the party does it seems   this is on the phase we said that the underlying policies and principles and protections of a stack to the intent of congress in drafting the statute as sad and formulas and so forth created by other parties such as the i r s and so forth that should be considered just like the special circumstances rule is considered plaintiffs who are there's  underlying purpose in its remedial form to protect those plaintiffs access to the courts and in this case the both congress and the deal well decided underlying the statutory construction to protect a and attorneys and accountants and those who provide for special services if the corporations i do have a summary of that page cites that the court can refer to for those the discussion of those purposes and protections but we submit that this issue should be considered because it's strictly one of statutory construction that's step to the central to the case it's important to the public it hasn't been decided before and it needs to be addressed which i'd like those those page cites i wouldn't i don't want them i think our law clerks have given up everything