morning i'd like to return about three or four minutes for rebuttal if this court allows the lower court's decisions in this case to stand two things are going to happen first crowns on paid unsecured creditors who will not receive any portion of three point two million dollars that it otherwise would have been paid to them for debts owed to them by crown and second crowns plan participants will receive three point two million dollars more in benefits than they were promised under the plan the first reason is the crown decision not to merge was not a fiduciary act and therefore it cannot be construed as a creature the reason for this is that a decision whether to merge or not merge is a decision concerning a modification to the form or structure or design of the plan and the supreme court's ruling in the user craft case tells us that a decision to modify or amen her yes they decided to terminate the plan but a decision to merge the plan is always a settler function and it doesn't matter whether it comes up after the decision to terminate or before the only way the decision to terminate  it says that the contributions the first thing that will happen is the contributions made by members of the plane will go back to them which is something the rest requires anyway and the rest of it will be distributed pro rata plan participants that's what it sa because when there's a merger the plan disappears it doesn't continue and that's just standard merger law i want to point out to the court that place has the burden of demonstrating that it was possible in union and so twelve point five says that extermination may be effectuated through merger but that language is just far too indirect to permit that conclusion it's just not yes yes it does your honor but section twelve point five to get back to my point doesn't authorize picture waiting on a terminations through merger as you pointed out on our briefs the language a section twelve point five is simply an attempt to track the determination in no no no because the plan plan beneficiaries are entitled to rights under a plane and when there's a merger what they're saying is  that is about this stance his language it's obviously very confusing but i don't think it's possible to read it as allowing terminations to be effectuated by merger i do want to talk for a moment about the remedy even if this were even if merger were a way to terminate the violation found here that is a theory to adequately consider the merger proposal is not remotely the type of a violation  remedy would have been in that instance would not be to deprive the company of the reversion because it didn't make any misuse of assets here it didn't respond assets bankruptcy court didn't find that bankruptcy didn't find it misused their assets bankruptcy court didn't briefly about remedy and the fact that  bankruptcy court would have some jurisdiction in fact the amount the money that was put into the construct of trust has been drawn down on to pay for further benefits and has given one hundred percent no more is required but that's all right so we don't know their claim here is that by the choice they made they were getting one hundred percent claim as i understand it is they didn't investigate the alternative and the alternative may have given them more but they didn't know application to get them or i may and you but you also say it would have given them a more never said that this was the only decision which was possible to i had to reach this decision i believe that wouldn't reach such and i believe an independent judiciary would reach that decision but it is not a question of retrospective judgment on what an exercise in discretion would have would have come up with furthermore your honor the reason that we are in this situation the reason we have this ambiguity i purchasing new or the merging how are they going to handle it and we found that their disclosure to the bankruptcy court was inadequate from our point of view we went to court and  answered said yes we are considering merger yes we are considering purchasing annuities we haven't decided what's happening yet but we will come back to this court and we will let the other side know what that well it's true that we said we were going to do we were going to let you know and we didn't we were going to let the court know and we didn't but you know if we had done the right thing the result wouldn't think i don't think because the overage and some would would make up for the underage of others and all participants would be fully protected crowned granted she said no they took  case your honor one of the things that has been said repeatedly by the other side in this case is that well you know a decision to terminate after all is a  in this particular case that happens not to be true for this particular case the decision to a man and the plan or it is one of the rules of contractual interpretation which we all learned in the first week of law school is that one of the ways you can interpret an ambiguous contract if there is indeed any ambiguity at all is how have the parties acted on that contract over the course of time well if you review areas this is all in the record the conversations between the union and  show that i mean i suppose i guess the answer i guess the answer is that we did show it it was implicit is that  that was an argument but i didn't read and don't read that argument as a way of protecting assets i think the court is right when the court says the decision what to do with also the team these plans is clearly sponsored function and decide whether to terminate them or not now