hours past the contractual delivery commitment they told me they could very do that anymore before you shipped they told that us that but they didn't revised number one they didn't revise the contract until august eight your honor to appeal of the press releases a press release it's no more it's no less if one looks at the document it was not intended to spend the money back guarantee it was not intended through absolutely not your honor answer i thought you were going to give me but it doesn't say anything other than that which was said before when there were allied previously on the language of the said as provided in our service guy this is as provided in our service why one we feel like if they checked today's service and they charge you for overnight the overcharge if on the other hand they charge for overnight and they fail that comes zero violation of the contract of charging for aids a livery a priority overnight delivery when they gave us a lesser service with a lesser service that has a specifically defined contractual rate i would like to go back to the point about the plane and i think that there are really three three points to be made in that regard one is that i believe your honor is absolutely correct that the remedy when there's a violation of a contract and there's no problem with the service guy on that remedy which the federal law has consistently recognized runner with regard to the claim issue because i think that is me a complaint filed for your money back guarantee we know that in fact most people don't know your honor why don't you have to show your honor we think the principle is really here and to the principle of applicable here and the third is of course that on the first day of the strike the life thirty first that acts publicly announced on the wire services on the business wire as we are not offering the approve this press release as written prior to its issuance so that i want to make sure i'm understanding the argument you're making here with respect to what's put up here you're quoting a service guy that said fed ex reserves  the money back guarantee i think that is if we are not down what it means as provided in our service guide that is to say that's a qualifier it doesn't say we will not offer money back guarantees it's just as provided in our service guy we will not offer modification or is this merely saying with the service guy no it's clearly a modification i think it was it was it is so true that in other words you are relying on the top of the top of the board which says that actually reserves the right to modify not in fact because of the forced measure but we also publicly stated that we're not offering the money back guarantee and i can tell you that no one has suggested in this litigation to this point that the suspended the money back guarantee to go the way for being caused by the strike and therefore there was no need to but if there's any doubt about that we publicly announce to the world that we're not offering me because think that one thing that is most clear about the money back guarantee is that it is a cruiser of contract it is in addition to the remedies normally offered which are actual damage or actual delay and it clearly says that we want to qualify for a refund we must receive your notification within thirty calendar day that there was no notification within thirty calendar days and therefore they don't qualify for a refund a confusion in this case is whether this is subject to some kind of of of futility here we are in a crisis situation and apparently with the exception of very specific things like wrong address your notations has to strike not our sole negligence does that mean that all of a sudden an operation that was from time to time so when negligence has become never negligent never so when i question no one can claim during the strike period where an individual could show that but the law and their i understand from a causation standpoint irrespective of we will let legal labels from the for the moment the strike clearly was a major contributor to the way i mean if you're overloaded you're taking all these packages you're doing your best and you have a successful delivery rate of ninety percent which strikes me as pretty good so in that sense clearly the strike is a contributing cause on the other hand you've got the strike and you make the decision to accept a lot of additional packages that maybe i'm not quite sure how to characterize that as a ringing cost just to say you didn't have to take all those factors having decided to take all those factors now you've got delays and many more packages then the system could handle mr gallagher points out that they cut that two hours well if they wanted to they could have cut back four hours or six hours of the close to prop boxes they made a conscious pretty careful number you say excess revenues they say well wait a minute how about it costs you nothing that i want to pay attention but i think the record does make clear that fifteen million in pot resulted from that hundred fifty million after the million packages a day roughly speaking that was their decision they could have done things to control that we think they made a good decision personally to take on this extra work we don't fault that decision but that's what caused the delays here there's that's code eighty four of these late shipments there was nothing to investigate the could even if they wanted to because there was no record at the field level of  the most material provision of the conference going back to the futility as you mr collins are stated i believe i think is a quote everybody understood that we weren't offering the decided to take on the additional business even though they knew it was going to compromise their ability to provide that's why is it unreasonable to ask an individual claiming under the money back guarantee and i think that's why the district court required a proof of claim here to try to account for nothing that you know we recognize why the district court ordered that and obviously but i actually have a different question and that is why as part of hoof of claim should there not be a requirement that the person say at least i would have a refund and maybe actually even have a little