administrator and did not allow me to see that position statement and ultimately the administrator relied upon many of the theories in that position statement to deny celebration committee of us that number of directors schooled under the plan documents the board of directors is the administrator the poor can delegate its responsibility to communities and in this case it did there was not a reorganization in other words the vesting would occur on merger consolidation or we organization were twenty percent of  directors were changed but because they thought there was not a reorganization they didn't have to address whether it was irrelevant whether the directors changed your honor and i am i mistaken and then you are you and that your honor is what's prejudicial to name the essential we have here two kinds of conflict one we have a very substantial inherent conflict we've got the board of directors of the company that paid earth claims making board could not service plan administrator in this situation or i believe that they were so conflicted that i could not get a fair determination the factual question i could not get a fair determination from their position was that they could not serve as standard view that's correct or are they were arguing that they really shouldn't have been acting here and your honor i don't believe the court needs to get to whether or not they should have been acting i have not in my own my considered  in my own mind i said that i don't believe i could get a fair determination from the inherent conflict but your honor you don't have to base your decision on that inherent conflict because that translated into an actual  you deal with it look ok i understand your arguments that they didn't give you a fair decision but how do you deal with the literal language of the plan it says that the and then second the literal language of a merger consolidation or reorganization where twenty percent or or change how do you deal with that word consolidation and how do you deal with merger and how do you deal with we are organizations i took it from your briefs that you're not arguing there was a merger or a consolidation in two thousand and one so you have to be arguing there's a reorganization but you seem to be stressing the change in the number of directors as opposed to some of the things that traditionally are considered a reorganization right after all just both points with respect to that's bad faith and there's no deference or that that's a separate argument but didn't the administrator write an opinion talking about what reorganization was he wanted the did is that the first person give me a yes or no if you can and then go on and give your argument yesterday the decision talks about the organization but that they hired a law firm to write that decision to people label to hide the fact that they some experience as to what normal is considered a reorganization so hence my question i pushed your honor and and you know what when companies use reorganized and change their corporate structure and they have new call or you know some phony name for a new corporation and they get on with everything they're doing then there's a different company that owns the ass that you know i understand that is a reorganization  you're dealing with something very different just a reduction in the board of directors through directors number and so management changes and so i'm asking you to explain to me how it's vitally important you were dealing with the reorganization of the company and albertsons conveniently leave that out of the three front page five of the three but a reorganization of the company is not a reorganization into another company or with traditionally it does mean a change in the structure of who owns the assets who the company is and it's in that series with a merger where a new player comes in or a consolidation where two corporations become won or more become one you know and reorganization usually it doesn't involve some sort of shifting around of the corporate structure and your honor here is the court is obligated to follow the dividends were contingent upon profitability of the company however they have no evidence of the record proves that the deferred stock units also contain a covenant not to compete for over three years they are not compelling evidence of mine which are ours with respect to public policy a party talked about my obligation in the district court here with respect to public policy because the district court did not recognize that honor i mentioned before there's a criminal statute i look at section forty five six zero nine where the company would have been subject to criminal sanctions if it laid off people improperly and i was right in raising this with the company and i believe  the promissory note issues i think acceleration is obviously one of the first things that the court look to and judge will you did identify exactly what our position is in regards to this there was not a reorganization now mr haley argues differently but the question is whether there are not the administrator has made a reasonable terminations in regards to that that if you look at the letter from mr pileus and then attorney robert stall which is on page two eighteen of the record at page two nineteen he says quote our interpretation seems at least as reasonable if not more reasonable than the company's interpretation under the law all the and all the  it's not whether the interpretation is correct or not whether it is a reasonable interpretation of the plan personally think it's pretty clear that it's an arbitrary and capricious standard unless you find actual conflict and what has been alleged in the record is the theoretical conflict the board of directors for example is the kind of manager now again the court is correct in this case the plan administrator was not the full board as a compensation committee it was for individuals what a concept the show it's not in this interest those for individuals to accelerate the stock options they all have fully intend people exercise and that's it of the corporation gives these not with the intent not ever him but with the full expression that we hope the people will with their size and and continue to invest in the company and align their interest with the company's interest so letting them celebrate their stock options is not anything that is a problem with us if you look at the financial impact upon their upon the company it is negligible in regard to the total economic changes that are occurring in in two thousand  starts getting new options correctly under the new company's management and those options haven't yet vested in two thousand and one right it's only about an eighteen month period we're talking about and that's that's that's exactly from fourteen person board of directors to one thousand person board of directors all we're doing in one thousand were in two thousand and one is we're analyzing the changes that have been occurring as a result of this merger and we're trying to under the corporate governance guidelines we're just a company so we can get back to the to do a good solid base and interestingly it's the board of directors who decides to reduce the size of the board of directors talk about change control what pushes the change you control the people who are suggesting th administrator should be upheld can there still be a claim for retaliation if that employee mistakenly asserts a claim and when they start doing something that's new different from what is the result of what has already happened there's a period of time this is not a record so it probably isn't considered we couldn't sell a story couldn't do anything because the attorney general he said and this is in the record as in our brief on fish thirty four we consider the relevant scene of change control i did not think the purpose was applicable to the situation you brought before us we looked at the document that determined that what had taken place simply with the aftermath of a merger and that's not relevant to what we were talking about i e a change of control and if you look at the decision i think the court made a very good point there if you look at the decision was a reasonable interpretation and again under barnett they don't have to be right they just have to be reasonable and for that reason i think that we go that way and it's regarding for usury duty under languishes long term disability plan might anticipate would exist but simply does not exist in a non aggressive plan such as this i would also point out just for the concept of the you know he said that the property is a good argument that there was a reduction in the number of incoming directors because of certain directors did step down if you look on page four seventy nine of the record every one of them was given a two year special advisor contract to stay with the company continue to give input and advice  the company so it's not like they disappeared again totally inconsistent with a change of control here the people who supposedly are being changed to control they're given a contract there are special advisers to the company for the next two years in order to preserve policy yes the first is that we cannot fire somebody because he refused to commit an unlawful act and the example of that is firing an employee because he refuses to commit perjury the peterman versus teamsters case out of california is the  there the second area is the second branch is if somebody is fired for performing an important public obligation and the case is under idaho law relates to the obligation to report safety violations spilling arsenic into the groundwater which would have a public impact for the population in the area the third branch is exercising important rights and privileges for example talking about unions fighting a worker's top playing serving jury two million dollars for my options but also that all these other people that are being terminated in connection with the rich program some of them you know this that option's to that that's true that he did his discussions according to his testimony did he yes sir it is discussions with mr young that people being terminated had vested right  annotations involving that statute that i had been able to discover that it does require that there be a complaint that the person has not been paid wages in accordance with this chapter so you have to go to were options wages and his attempt the exercise of those options was that a complaint i disagree with the district court judge that that was a complaint that was simply initiating the process and there could not have been a complaint takes a lot of steps to bring it within the way through or tell you no way to complain retaliate but what about this public policy well why wouldn't it be public policy argument that a contribute to the company and when they're terminated not for cause but terminated because of reorganization or other reasons all of those options are taken away from  red light as well will give you some more time here because we get more time to mr  basis they may be issued but they don't vest on a regular basis however if they're not wages is there still the potential for retaliation and violation of public to january one two thousand two and he's trying to do that through a letter that he wrote and since he's saying you know for example sting you you've long me a thousand dollars and i promise to pay you back next february first and on on january thirtieth you write me a letter and say i write you a letter and i say i'm sorry just as of last year i'd like to pay you this back in a year and he says that that's enough say that i don't have to pay you back there was no response absence did not respond to that two days later two days after he wrote that letter mr paley's signed the third and final modifications saying i will pay this back by february one two thousand and one so you know even if there was a response to that but no is what we look at and know has a specific due date failure of one two thousand and one the letter is just to be disregarded it's just a suggestion signing came after two days after the letter that's right so if there's no questions i think this i have no questions after the merger all of them provide for acceleration triggers based upon events that occur prospectively none of them contain any provision that says we will look back to before the merger encounter events that happened case and permitting the parties to use the ninth circuit's mediation facility for a fury of time of thirty days or sixty days or do the parties feel they have fully explored that possibility before and that we should just proceed to make our decision but hear from  if the parties want to have us if both parties want us to defer to station for a period of thirty days to invoke our mediation across the seas of the ninth circuit mediator  we will do so if the parties jointly tell the clerk that both parties want to do that however if i if either party doesn't want us to do that going right we have nothing they haven't so please within the next week let's say within the next next ten days alert the third star first if the parties want us