Good afternoon. Good afternoon, young. We have two cases this afternoon after the four we have this morning. And the first this afternoon is Cotillion, the United Refining Company at all. It's numbers 13-4633 and 47-43. Mr. Rillo and Ms. Brett. Thank you, young honor. My name is Christopher Rillo. I represent the Appellance United Refining Company and it's the fine benefit plant here. At the outset, Mayor Reserve four minutes for your bottle, sir. Sure, thank you. Thank you, young. This case did not involve you. The latter will change by a plan sponsor. Although if you read the district court opinion, that's not clear. The latter was after plan professionals came to the fiduciaries and stated that you were misinterpreting the plan and they consulted with their professionals that the plan was changed. Which my guess is that part of this is just when you see that somebody like Mr. Cotillion, he got his retired or was terminated in 89, is that correct? I believe that's correct. And he was an A-stats by 95. 16 years later, he gets this letter, it says, we miscalculated. They said what the him, you're not going to get it anymore for a while or you're suspended and what he was getting. And by the way, you owe us money
. Correct. And no look at the good. Well, it doesn't look, it looks fine when you look at Mr. Cotillion's testimony, which is he expected to receive a reduced pension. That's page 1655 of the record. Mr. Cotillion was deposed of all the other ones that did too. Mr. Edmiss Eldridge did as well. How many others are there? There were 15 in paystats, your honor, and there's 170 members of the class that are not in paystats, there's 23, 28. I realize you didn't draft the document. I realize you didn't draft the, you know, the S.P. The summary plan descriptions. You didn't draft the handbooks. But these things go all over the place with regard to the 80 and 87 plan. They sure do, and that's the point that we're making. As the district court found, there's susceptible to several different readings, including the reading that we've been asking. These are your own documents. They are. So everything, but the good news, I guess there is everything relates back to the plan and the 80 and 87, especially Amendment 5 to the plan, makes it clear that they do get. There's no adjustment for leave, actuarial adjustment for leaving early. Whatever reason, I don't know why
. I beg to differ with you, honor. It makes it clear that they do not receive the same terms as early retirees. And that's the entire point. What does Amendment 5 do? Amendment 5 was put in, Amendment 5 to the 1980 plan, was put in specifically to give early retirees and subsidized retirement. But Amendment 5, by its language, specifically refers to the fact that they have to be employment with the company. At the time, you will introduce retirement. At the same time, the S.P.D.'s, which are enforced throughout the period of time, gap fill, and explain in concrete detail that you will be actuarially reduced and give the actuarial reduction. 7 out 1 refer back to 503, 503 refer to 502 and 501. And when the 1980 plan 701 does refer to 503, but there's a purpose for that. And the purpose is 206A, which sets the floor for what people get. Under 206A, it specifically says you have to permit people, participants, and their pay status at the same time as early retirees, and they are actually reduced. You only have to give them an actuarially reduced pension, because like Social Security, they're receiving a payment before any adjust for the mortality tables. So the reference to 503 in certainly the 80 plan, and certainly it's more concrete in the 87 plan, is two things. It gives them the time that they're going to commence, and also gives them the total amount, which the total mortgage, as I say, in the brief of what they do, because you have to calculate that by years of service. Let's say Mr. Ketelian, he was what it, he wasn't early retiree. No, he wasn't. Mr. Ketelian was a deferred vested terminated participant, and that's the point. The plan's carefully throughout the period time that you had to be able to do it
. But he was vested. He was vested. But the plan's carefully delimiting the linear. I bet you're right. A big answer. Vested is like tenure. Yes. He was vested and he had a right. It was one of his own payment. Can somebody come in and take the rug out from Monday? That's the argument that the other side is making. But they didn't take the rug out from underneath them. Whether it's the 206A. Whether you're asking me for money back. Well, that happens. That's the situation that happens because you're obligated underneath the RISA to get that money back. You cannot pay benefits underneath the statute. It sounds harsh, but it's really not for the benefit of all participants. You can't pay a greater benefit than what someone's entitled to under the plan. It is harsh to those who get that kind of letter. I mean, the question is, can you legally do it many years later? The question is that, and you can legally do it many years later assuming that the plan language can be read the way we read it. And that's where Conquerate comes into play. Well, before you go there, section 204G talks about the amendment. And you know, amendment, the definition of what is an amendment, it comes into play in this appeal
. Why isn't section 5.4C of plan documents, why isn't that an amendment? It was an amendment for the 95 and 2000 plans. Part of me, Judge Chicago, it means I interrupt you. Five point four season on amendment because it simply codifies what the earlier language was. That was the judgment reached. 5.4C was adopted after the gust amendments periodically, your Honor, the internal revenue service issues, these releases indicating that you have to amend your plan documents. It gives you a period of time of seven to eight years to amend them. And they give certain things that they want listed in each plan document and one of the things that they wanted. And as the expert's declaration showed, one of the things that they wanted was clear more vesting provisions. 5.4C simply reiterates what was in the earlier plan, which is these folks only get an actually fairly reduced retirement. And anything in either plan, 80 or 87, that explicitly provides an actuarial adjustment of T.V.P. benefits. The only thing in the plan that specifically provides in the plan is the SPD. There's nothing in the plan that provides them with subsidized benefits. Because you have to read the plan controls, right? You have to read the plan with all of the definitions. That's high, that's the other language. Plans are not like insurance contracts where they're read again in favor of a participant, or they're read against the company. There are simple contracts that have to be read in their entirety. They're not so simple, though
. Not simple, not as you discovered in Shabery Honor. And the idea here is when you read all the definitional sections, it leads you to one thing, which is all these folks were promised, was an unreduced pension at age 65, which had to be reduced under 206A. The second theme of our briefing, I thought we could let him go back to judgment. Walk me through the way to calculate benefits for T.V.P.s and stay within the four corners of the 80 and 87. The only way to calculate benefits for D.V.T.s is you look to see what the total benefit is under 503, the total house mortgage, how much money they've earned given their years of service and their pay. You then look to see what year they, what year they commence. You then look to the definitional section to see what they're actually promised, which is an unreduced pension at age 65, and then the SPD gap fills, which it's permitted to do with giving you the cases. And the SPD is crystal clear. But they were given under 502 and accrued retirement income, were they not? They were. Give them a free retirement income. That was calculated in accordance with 501. It was calculated 501, which is the provision for normal retirement age. I mean, 65 you get an accrued retirement income, Judge Ambrow. Right, understand. And I realize that a lot of folks do an actuarial adjustment. But here it wasn't done. It looks like the plan's post 1987, the 1995 plan, for example
. It's different. It's your way. Right. The plan language is different for 1995 plan in 2002 plan. It certainly is. So what caused, I couldn't quite figure this out from the briefing. Was there something where the IRS told you you can't do this? Or because the IRS specifically says it doesn't comment on a RISSA. Or is it just somebody was doing an actual looking at this from an actuarial point of view and realized, hey, we've been doing this all wrong for all these years. What? What's? No. And the reason why, let me pick up the last point you're saying, the reason why someone didn't realize we knew all wrongs, because they still granted unreduced benefits in these people three years after. It's unquestion that the teach, that the 1995 plan was drafted. It was a draft of January 1st, 2002, and the era wasn't discovered until late 2004, and the participants notified in 2005. So there was no realization that they were doing anything wrong, rather it was, what codifying what we did before. The simple answer to your question is not simple. There was a series of correspondence with the IRS. There's nothing in this case, it's simple. I know. It's an exciting case though. But the answer to your question is there was a series of communications with the IRS over various definitions in the plan, and evidently the draft of Ms. Gose and who passed away, attempted to conform to that. Now that's one of the questions that could have been answered by the way, how do we exhaust it remedies here? We could have built an administrative record. I think the perception that the argument they have is, look, it's tripping all the way, it's futile. Nothing was going to change
. That's not true. I mean, that's not true. I mean, the case law, they don't have the case law. They didn't attempt to exhaust the remedies, they didn't move with any sort of alacrity, that the case is demand. They waited four years, nearly four years after all. I mean, the question also is, and it's a tough one. If this is a claim under the anti-cut back rule, you don't really need exhaustion. If it's a claim under, if it's essentially a contract claim, you would need exhaustion. And do we really need to decide whether this is an anti-cut back rule or a contract claim? You know, on our plan interpretation case, you don't get to the cutback unless their interpretation of the plan is correct. But it's only for 16 years. You interpreted it the way they're now interpreting it. That's just as the defense and concrete did, and the Supreme Court said, there's no one striking you out. Chief Justice Roberts could not be more clear. He said, people make mistakes even a risk of plan administrators. And therefore, there is no one striking you out. There's no concrete in case where there was something was explicit. A bay plan, you are? There was the plan was explicit. I don't understand your question. I'm sorry. Well, can't concrete be distinguished? There was, if you say that under concrete that the administrator gave a reasonable interpretation and not like it, but you lose. But it may not be too much of a leap here to say that what the plan administrator did, Mr. Loughlin, was given unreasonable interpretation and therefore, a concrete doesn't apply. Time to expire, may I ask you that question? The answer to that question is found in the District Court opinion, first of all
. On pages 25 and 26, he says there are several interpretations that can be made from this plan language including hours. Furthermore, on Zimbroski, I realize it's an unpublished decision. The Zimbroski, a panel of this Court said that where you have several possible interpretations, you don't have any sort of finding that the planists are entitled to anything you have to defer to the defendant's interpretation. And that's the teeth of concrete. So long as there's a reasonable interpretation as the District Court found in pages 25 and 26, that supports our reading of the plan we prevail. All right. Let's hear it from your panelists. Thank you. I'll get you back in the bottle. Ms. Brett. May I please, please, please, the Court. My name is Ty D. Brett. I represent the plaintiffs across the Pellens, John Catellan, Beverly Eldridge, and the Certified Class of Terminated Vested Participancy United Refining Plan. Can I request two minutes for referral on the cross appeal? Well, what you're under one cross appeal. On the cross appeal, if it's, you may just want to deal with all your time now because I'm making sure that issue is going to come up. All right. This case involves a straightforward application of a RISIS anti-cut back rule, which, I'll tell you, if it does come up, we'll give you a minute or two. Okay. Thank you. The first point is there was no operational that required any reinterpretation of the plan. The unambiguous language of the 1980 and 87 plans provided that T
.P.V.s get T.V.P.s, get the same underdistretirement benefit as early retirees. And it was correctly interpreted by the plan in this fashion, not only in the notices that they gave to Terminated Vests as when they left their employment, in notices that were required by the IRS. The one logical problem you have, or one could argue, here a participant doesn't receive benefits until there's actual retirement or could not receive benefits until actual retirement. It seems that the way the plan was released and interpreted by everybody for 16 years is, doesn't seem there's really any economic incentive to retire later than earlier. There is no incentive. Yeah, that's why you have an actuarial adjustment so that you have people working at least until close to 65 unless there's a health issue or something else comes up. But it would seem to make sense that you would have something in a plan that says, hey, Ambro, if you retire at 59 and a half when you're first eligible, you know, there's going to be an actual royal adjustment because you're not 65. Yes, but that's not the plan that we have here. The plan clearly provided early retirees that could retire at the early retirement date and get a full unredist benefit. And then what about the fact that this person was terminated as opposed to? Well, he terminated as employment and there's in the record there's rationales for why the plan might have been designed this way. That's neither here nor there. The fact of the matter is when employees with five years of investing service terminated their employment, they were told by the company and this interpretation is supported by the language of the plan that if you make commences, you may have the option to choose to commence your full benefit, your full accrued annual benefit at your early retirement date, which was first 60 and then 59 and a half. That's what they were told, that's what they did, and that's how the plan unambiguously reads. Any other reading of the plan, there is a section for terminated vested participants and it clearly leads the reader back to the definitions, excuse me, the provisions that govern early retirees. So what was the amendment in this case? What gives you your hope to the section that you're assuming? The two thousand three, the defendants adopted an amendment which they have been applied retroactively to our class of participants to reduce their benefits. And it wasn't a reinterpretation. There's not one IOT of evidence that the defendants reinterpreted the plan to correct an operational error. There's no evidence of what the actuaries may have told them
. There's no evidence of what Osten might have done. In fact, we asked for that evidence. We were denied. Is there any evidence to what the perception was that the IRS was requiring? With respect to the IRS, it's unclear why they went to the IRS in the first place. It didn't need to do that. They went to the IRS. They gave the IRS not the language under which these people had terminated their employment and under which their rights vested rather they used the later two thousand three language. And they told the IRS that taking off the front page by the way. The IRS had no way of knowing that they were being given the wrong plan language and said, here's the real language of the plan which it wasn't. And based on this language, we overpaid these people and we have to get our money back. This is when in 2002 or 2005? The IRS compliance statement happened in 2005 to 2006. And it was a way to try to recruit money from participants and pay status. But this whole idea of a reinterpretation of the plan language never came up until we filed this lawsuit. Until then, all the evidence shows that the participants were told that they're the plan required an actual reduction. Yet what they were given in 2005, people who were not, who were not yet paid status like a plan of Beverly Eldridge, were given a letter saying we're trying to clarify your benefit. You're not entitled to the whole thing at early retirement date. And they gave them attached to these notices. They gave the participants provisions from the 2002 plan, not the provisions from the 1980 or 87 plan under which these individuals had retired. So it's clear, that's why it's a straightforward application of the anti-cut back rule. For 17 years, this plan is interpreted to provide an unreduced early retirement benefit to terminated vested participants. But your adversary says there are other places where it was pretty clear that there should have been a reduced actual aerial benefit. And it just was never, I guess, somebody just didn't do the right thing according to them. Well, as Judge McLaughlin correctly found, those interpretations, first of all, they read language into the plan that's not there. They read into the plan this notion that the only individuals entitled to this reduced early retirement are those who retire from the company on their early retirement date. It speaks in terms of early retirement date, which if you go through the plan always refers to the participants birthday, not when they retire from the company. But they're so-called reinterpretation. And again, the plan administrator, so the concrete has no application. None whatsoever. It's an opposite. Concrete is not an anti-cut back case. And it does say that the administrator can make a mistake, and that's not going to be binding. It's not going to be forever-type thing. The reason here there wasn't a mistake for 17 years. The mistake was retroactively reducing the benefit. But because the plan unambiguously provided these benefits. The hang on. Just for a second. You're saying in 2005 they could have said going forward, you are actually early adjusted. They could have said to new employees. To new employees. That's my thoughts. Yes, on a going forward. It's not that the amendment was illegal. Not a criterion, for example. No. If I understand your question, Judge J
. They read into the plan this notion that the only individuals entitled to this reduced early retirement are those who retire from the company on their early retirement date. It speaks in terms of early retirement date, which if you go through the plan always refers to the participants birthday, not when they retire from the company. But they're so-called reinterpretation. And again, the plan administrator, so the concrete has no application. None whatsoever. It's an opposite. Concrete is not an anti-cut back case. And it does say that the administrator can make a mistake, and that's not going to be binding. It's not going to be forever-type thing. The reason here there wasn't a mistake for 17 years. The mistake was retroactively reducing the benefit. But because the plan unambiguously provided these benefits. The hang on. Just for a second. You're saying in 2005 they could have said going forward, you are actually early adjusted. They could have said to new employees. To new employees. That's my thoughts. Yes, on a going forward. It's not that the amendment was illegal. Not a criterion, for example. No. If I understand your question, Judge J. A. In other words, when you said in 2005 they can't ask for the money back, but they could do something. And I'm just trying to clarify what that's something that said that only be for new employees. It wouldn't be for people who are already vested in the entire left-like Mr. Catellian. Correct. We're not tying their hands in terms of ending the plan on a going forward basis. Just to 04G prohibits them from amending the plan to reduce an already accrued benefit, which all the class members had. So the their interpretation reads language into the plan that's not there. And it sends you all over the plan, but it ignores the explicit cross reference in section 7.02 of the plan, which explicitly says the terminated vested participants get the same benefit that the same annual benefit at early retirement date, at early retirees get, and the story. It's not that hard. It's not complicated at all. And I think the most telling point is if it had been, if there had been some room to interpret the plan differently, when they asked for the money back, when they went to the IRS, they would have given them the right plan language, the plan in effect at the time these participants were convicted, but they didn't. Not only when they notified the participants that they were clarifying the plan, and when they went to the IRS for a voluntary compliance statement, they gave the IRS the 2002 plan language, which was not adopted until 2003, and they applied it retroactively to these participants. What's the argument with regard to the non-exhaustion here? Well, there's a couple of arguments. First of all, this is a statutory claim, the exhaustion. And there's saying it's not a statutory claim that essentially a contract claim requires a question. It's an straightforward application of the anti-cut back rule. And so there is no requirement of that. No, Mr. Rillisett, in response to that, you don't get to the anti-cut back rule without the predicate of having the contract claim. Consider, if I concede that point, there's still futility
. A. In other words, when you said in 2005 they can't ask for the money back, but they could do something. And I'm just trying to clarify what that's something that said that only be for new employees. It wouldn't be for people who are already vested in the entire left-like Mr. Catellian. Correct. We're not tying their hands in terms of ending the plan on a going forward basis. Just to 04G prohibits them from amending the plan to reduce an already accrued benefit, which all the class members had. So the their interpretation reads language into the plan that's not there. And it sends you all over the plan, but it ignores the explicit cross reference in section 7.02 of the plan, which explicitly says the terminated vested participants get the same benefit that the same annual benefit at early retirement date, at early retirees get, and the story. It's not that hard. It's not complicated at all. And I think the most telling point is if it had been, if there had been some room to interpret the plan differently, when they asked for the money back, when they went to the IRS, they would have given them the right plan language, the plan in effect at the time these participants were convicted, but they didn't. Not only when they notified the participants that they were clarifying the plan, and when they went to the IRS for a voluntary compliance statement, they gave the IRS the 2002 plan language, which was not adopted until 2003, and they applied it retroactively to these participants. What's the argument with regard to the non-exhaustion here? Well, there's a couple of arguments. First of all, this is a statutory claim, the exhaustion. And there's saying it's not a statutory claim that essentially a contract claim requires a question. It's an straightforward application of the anti-cut back rule. And so there is no requirement of that. No, Mr. Rillisett, in response to that, you don't get to the anti-cut back rule without the predicate of having the contract claim. Consider, if I concede that point, there's still futility. Well, first of all, they have not met their burden of proof on the, on showing that they've provided a procedure by which to appeal or challenge the so-called interpretation or reinterpretation. They not only told participants, gave participants the wrong plan language, participants opened the letter and had been promised and introduced benefit, gets a page from a different plan document saying that benefits, early retirement benefits, will be reduced. There's nothing in those letters that say if you want to challenge this benefit determination, you can file an appeal. And the few people who nonetheless, including Coutillion, who called the plan administrator, said, you know, what do I do about this? I depend on this benefit. What do I do? They, Mr. Lockman, who was the acting for the plan administrator, told each one of them, there's nothing you can do. We made a mistake. There's nothing you can do to challenge it. Those who went through the process were told that we went to the IRS to confirm this interpretation to strip ourselves of authority. So they, it was, if there ever was a definition, if there was ever a case of futility, then this is it. Exhaustion, so exhaustion doesn't apply, they haven't met their burden of proof on exhaustion because they didn't provide plan procedures to challenge this decision. And it was futile. We met our burden of proving futility. There's not one IOT of evidence to show that an appeal would have done anybody any good. They were committed to this plan interpretation or this plan of reinterpretation. They were committed to the cutback and nobody was going to change their minds. And that's what they told the participants. And we, it's all in the record, the reams of letters of percent. Well, yeah, so what actually, if you can point to something, is the amendment that gives you the hook? Is it 5.4C? Yes. Okay. They applied 5.4C, which first, and they used the 2002 provision, not the 1995 provision
. Well, first of all, they have not met their burden of proof on the, on showing that they've provided a procedure by which to appeal or challenge the so-called interpretation or reinterpretation. They not only told participants, gave participants the wrong plan language, participants opened the letter and had been promised and introduced benefit, gets a page from a different plan document saying that benefits, early retirement benefits, will be reduced. There's nothing in those letters that say if you want to challenge this benefit determination, you can file an appeal. And the few people who nonetheless, including Coutillion, who called the plan administrator, said, you know, what do I do about this? I depend on this benefit. What do I do? They, Mr. Lockman, who was the acting for the plan administrator, told each one of them, there's nothing you can do. We made a mistake. There's nothing you can do to challenge it. Those who went through the process were told that we went to the IRS to confirm this interpretation to strip ourselves of authority. So they, it was, if there ever was a definition, if there was ever a case of futility, then this is it. Exhaustion, so exhaustion doesn't apply, they haven't met their burden of proof on exhaustion because they didn't provide plan procedures to challenge this decision. And it was futile. We met our burden of proving futility. There's not one IOT of evidence to show that an appeal would have done anybody any good. They were committed to this plan interpretation or this plan of reinterpretation. They were committed to the cutback and nobody was going to change their minds. And that's what they told the participants. And we, it's all in the record, the reams of letters of percent. Well, yeah, so what actually, if you can point to something, is the amendment that gives you the hook? Is it 5.4C? Yes. Okay. They applied 5.4C, which first, and they used the 2002 provision, not the 1995 provision. They used the one that they adopted in 2003. And we know that because all the copies of the plan also have a 5.4D on it, which wasn't in the earlier plan. But they clearly used that later provision to retroactively cutback benefits. And again, I know that there's been a lot of policy arguments that were tying the hands of plan sponsors, were not. They could do it on a going forward basis, but the anti-cutback statute clearly prohibits a retroactive application that reduces and accrued benefit. And the benefit had accrued for these. Is our high-end case, right? It has a pretty, in terms of construing what an amendment is. It's a kind of, it seems a little looser than some of the other circuits. Sorry, which case? Is it? Yes. Yes. No, no. There's this is perfectly consistent with the other opinions written by this Court. This is a much easier case, because again, all this business about reinterpretation never occurred. The judge McLaughlin dealt with it only because it was an argument raised by defendants, but there's no evidence to support reinterpretation. And this Court could easily find that the defendant's had correctly interpreted the plan to provide an unrued, loose benefit to this class of participants for 17 years. And the Section 5.4C of the 2002 plan cannot be applied retroactively. It's a straightforward application. It's easier than Bellas. It's easier than Hines. It's easier than the Botani case. It's clearly a ball attempt to, in 2003, adopt a plan amendment, even some years later
. They used the one that they adopted in 2003. And we know that because all the copies of the plan also have a 5.4D on it, which wasn't in the earlier plan. But they clearly used that later provision to retroactively cutback benefits. And again, I know that there's been a lot of policy arguments that were tying the hands of plan sponsors, were not. They could do it on a going forward basis, but the anti-cutback statute clearly prohibits a retroactive application that reduces and accrued benefit. And the benefit had accrued for these. Is our high-end case, right? It has a pretty, in terms of construing what an amendment is. It's a kind of, it seems a little looser than some of the other circuits. Sorry, which case? Is it? Yes. Yes. No, no. There's this is perfectly consistent with the other opinions written by this Court. This is a much easier case, because again, all this business about reinterpretation never occurred. The judge McLaughlin dealt with it only because it was an argument raised by defendants, but there's no evidence to support reinterpretation. And this Court could easily find that the defendant's had correctly interpreted the plan to provide an unrued, loose benefit to this class of participants for 17 years. And the Section 5.4C of the 2002 plan cannot be applied retroactively. It's a straightforward application. It's easier than Bellas. It's easier than Hines. It's easier than the Botani case. It's clearly a ball attempt to, in 2003, adopt a plan amendment, even some years later. By the way, they continued to pay on reduced benefit for several years after the adoption of this amendment. And the law simply prohibits an attention plan to go back and retroactively change it. End of story. It's not a difficult case. The evidence is actually fairly simple. It's the clouds of other things that aren't relevant or didn't happen that make it confusing. Thank you very much. On the cross appeal, you want to, if this Court, I'll give you, go ahead if you want to. I have a minute. Go ahead. On the cross appeal, clearly all members of the class were harmed in the same way. All had been promised an unreduced benefit. It has been taken away. And we're simply asking the Court to amend paragraph age of the lower courts and junk to read the class of participants, or this group of participants, and award them the same makeholder leave that they were that was available to them that's available to everybody else in the class. She apparently, I believe your Pell decision as well as confirmed by a Marra requires that makeholder really be given to all participants who have been harmed by a statutory violation. The judge supposedly said there was no evidence, but I think we've outlined the ample evidence in the record that supports this relief. And we're asking for a slight adjustment to paragraph age of the remedies order. So how significant, what, how significant is the difference between the relief that was actually awarded and the relief you're actually seeking? With respect to Steve Wiedmer, I think exemplifies it, he started to commence his benefit on his early retirement date, and that was exact same time that the illegal cutback occurred. And he decided to wait to let his benefit grow. And as calculation, the difference between getting the whole remedy and getting the remedy ordered by the court is something well over $100,000. So for Mr. Wiedmer, who's the poster child for the injustice here, it's fairly significant. Thank you very much
. By the way, they continued to pay on reduced benefit for several years after the adoption of this amendment. And the law simply prohibits an attention plan to go back and retroactively change it. End of story. It's not a difficult case. The evidence is actually fairly simple. It's the clouds of other things that aren't relevant or didn't happen that make it confusing. Thank you very much. On the cross appeal, you want to, if this Court, I'll give you, go ahead if you want to. I have a minute. Go ahead. On the cross appeal, clearly all members of the class were harmed in the same way. All had been promised an unreduced benefit. It has been taken away. And we're simply asking the Court to amend paragraph age of the lower courts and junk to read the class of participants, or this group of participants, and award them the same makeholder leave that they were that was available to them that's available to everybody else in the class. She apparently, I believe your Pell decision as well as confirmed by a Marra requires that makeholder really be given to all participants who have been harmed by a statutory violation. The judge supposedly said there was no evidence, but I think we've outlined the ample evidence in the record that supports this relief. And we're asking for a slight adjustment to paragraph age of the remedies order. So how significant, what, how significant is the difference between the relief that was actually awarded and the relief you're actually seeking? With respect to Steve Wiedmer, I think exemplifies it, he started to commence his benefit on his early retirement date, and that was exact same time that the illegal cutback occurred. And he decided to wait to let his benefit grow. And as calculation, the difference between getting the whole remedy and getting the remedy ordered by the court is something well over $100,000. So for Mr. Wiedmer, who's the poster child for the injustice here, it's fairly significant. Thank you very much. Mr. Rilla? I have three points on rebuttal, and I'd like to get to them. First point is Judge Chigarras, you asked two questions about what the amendment is and whether the hind case is correct. Page 17, 18, 19 of the slip opinion down below, Judge McLaughlin clearly states that the amendment is largely the reinterpretation of the plan after 2005 to read it in a fashion which he agrees on page 25, he can be read, but the read it that will not confer subsidized benefits or requires an actual reduction. With regard to hind, as we stated in their brief, hind is in the teeth of copyright. Concrite says you can't have one striking or out, facts of concrete, or even more compelling or even more off Judge Ambrow than our case. Concrite's zero ox misinterpreted his plan for 19 years. I thought what Hein said is that an interpretation that's an error of a planned revision that results in an improper denial of benefits to a planned participant may be construed as an amendment. Correct. It does. But it's been read more broadly to indicate that a prior interpretation can rise to an amendment on its own and Judge McLaughlin makes that clear that the concept of amendments flexible. Second point is reinterpretation of the plan. No, the Supreme Court case in Concrite was what appeal from the second circuit case. It was your answer. It was, was Hein even mentioned in the Supreme Court's opinion. It was not. Nor were the amendment doctrines because only this circuit, as well as the sixth circuit, it followed the amendment. Most other circuits, the majority of other circuits have rejected the concept that you can have an amendment without formal writing. Indeed, this plan does require formal writing, it says, that interpretations by the fiduciaries do not constitute amendments. The reinterpretation question that was out at the present, and it makes matters clear. 206A, our argument is. It seems to me that the, you know, to follow your argument to its logical extremings that the plan administrator could reinterpret a plan at any time when it wants to reduce benefits and say, this is a reinterpretation, you could lure prospective employees to come into the employee of the company by having one interpretation of the plan that's current. And then later after they go into pay status, as you call it, say, oh, we reinterpreting it
. Mr. Rilla? I have three points on rebuttal, and I'd like to get to them. First point is Judge Chigarras, you asked two questions about what the amendment is and whether the hind case is correct. Page 17, 18, 19 of the slip opinion down below, Judge McLaughlin clearly states that the amendment is largely the reinterpretation of the plan after 2005 to read it in a fashion which he agrees on page 25, he can be read, but the read it that will not confer subsidized benefits or requires an actual reduction. With regard to hind, as we stated in their brief, hind is in the teeth of copyright. Concrite says you can't have one striking or out, facts of concrete, or even more compelling or even more off Judge Ambrow than our case. Concrite's zero ox misinterpreted his plan for 19 years. I thought what Hein said is that an interpretation that's an error of a planned revision that results in an improper denial of benefits to a planned participant may be construed as an amendment. Correct. It does. But it's been read more broadly to indicate that a prior interpretation can rise to an amendment on its own and Judge McLaughlin makes that clear that the concept of amendments flexible. Second point is reinterpretation of the plan. No, the Supreme Court case in Concrite was what appeal from the second circuit case. It was your answer. It was, was Hein even mentioned in the Supreme Court's opinion. It was not. Nor were the amendment doctrines because only this circuit, as well as the sixth circuit, it followed the amendment. Most other circuits, the majority of other circuits have rejected the concept that you can have an amendment without formal writing. Indeed, this plan does require formal writing, it says, that interpretations by the fiduciaries do not constitute amendments. The reinterpretation question that was out at the present, and it makes matters clear. 206A, our argument is. It seems to me that the, you know, to follow your argument to its logical extremings that the plan administrator could reinterpret a plan at any time when it wants to reduce benefits and say, this is a reinterpretation, you could lure prospective employees to come into the employee of the company by having one interpretation of the plan that's current. And then later after they go into pay status, as you call it, say, oh, we reinterpreting it. Why isn't that a clear violation of the, what happens to the anti-cutback rule under your approach? It is violation. If the plan, there's only one interpretation of the plan. Well, let's say there are two interpretations. Well, if there's two interpretations, Conk Wright answers that question. So, what purpose does the anti-cutback rule serve then? Well, it serves a purpose of protecting what's being regarded as a vested right. But, Conk Wright, the combination of the anti-cutback case, right? It doesn't matter. It's a plan interpretation case. And again, we don't get to an anti-cutback claim here unless our plan interpretation is not reasonable or is incorrect. And the district court said in pages 25 and 26, conceded that our interpretation was reasonable. It said there are several interpretations going to be made in this case. So, you could do this in one of two ways. You could do it by way of an amendment, but that would violate the anti-cutback rule. But if you call it a reinterpretation, you don't violate the anti-cutback rule. There's no evidence of bad faith here. Everyone conceded that Mr. Loughlin was reasonable that he was acting in good faith, including many of the class members, including Ms. Colossumma, who was employed by Mr. Loughlin. Furthermore, Judge Vaneske, the concept that Mr. Loughlin had brought this up is just not there. It's the plan actuaries, the professionals that are charged that came to Mr. Loughlin and said, Larry, you're screwing the plan up by paying these subsidized benefits. And he testified to that clearly
. Why isn't that a clear violation of the, what happens to the anti-cutback rule under your approach? It is violation. If the plan, there's only one interpretation of the plan. Well, let's say there are two interpretations. Well, if there's two interpretations, Conk Wright answers that question. So, what purpose does the anti-cutback rule serve then? Well, it serves a purpose of protecting what's being regarded as a vested right. But, Conk Wright, the combination of the anti-cutback case, right? It doesn't matter. It's a plan interpretation case. And again, we don't get to an anti-cutback claim here unless our plan interpretation is not reasonable or is incorrect. And the district court said in pages 25 and 26, conceded that our interpretation was reasonable. It said there are several interpretations going to be made in this case. So, you could do this in one of two ways. You could do it by way of an amendment, but that would violate the anti-cutback rule. But if you call it a reinterpretation, you don't violate the anti-cutback rule. There's no evidence of bad faith here. Everyone conceded that Mr. Loughlin was reasonable that he was acting in good faith, including many of the class members, including Ms. Colossumma, who was employed by Mr. Loughlin. Furthermore, Judge Vaneske, the concept that Mr. Loughlin had brought this up is just not there. It's the plan actuaries, the professionals that are charged that came to Mr. Loughlin and said, Larry, you're screwing the plan up by paying these subsidized benefits. And he testified to that clearly. I mean, there's a sense of the briefs. I know you're just going to be absolutely clear. So, it's the actuaries that came, this is, hey, you're screwing the plan up. And it's not fear that somehow you would lose eligibility because of what the IRS has said with respect to the 80 and 87 plans. This concepts are tied together, Judge Ambrouh. If you're screwing the plan up, they're saying you're threatening the tax qualification of the plan. When did the IRS say you're screwing the tax, possibly screwing up the tax qualification? The IRS didn't say that. I said the actuaries. The IRS never said that. We went with a VCP submission, which they approved and presented the plan. The third point I want to say is there any significance to the fact that when you went through the VCP, you did not submit the 1980 and 1987 plans? No, because generally you submit the plan as an effective when you file the VCP and the IRS has a file that keep all the plans there. But even though the 80 and 87 plans are significantly different than the 95 and 02 plans. They are, but they have the file there and they presumably would have reviewed them. There's no significance attached to that and certainly you're presuming that the IRS has the file and is going to go back and take a look at plans twice removed and three times removed? I do assume that they have a file. I know that they have a file that they have a file and that they're going to have to request the S-Planse from them and ask cases. That's given that that's suggesting that somebody is doing more due diligence than what normally would be done. I see my time expired of one more point five. Go ahead. He'll give you one more minute. One of the final points on exhaustion. Exhaustion clearly applies here. There's two points about futility. The first is it's a high burden that the plans have to show that there's other fixed reaction to whatever appeal they take and none of the plans took an appeal
. I mean, there's a sense of the briefs. I know you're just going to be absolutely clear. So, it's the actuaries that came, this is, hey, you're screwing the plan up. And it's not fear that somehow you would lose eligibility because of what the IRS has said with respect to the 80 and 87 plans. This concepts are tied together, Judge Ambrouh. If you're screwing the plan up, they're saying you're threatening the tax qualification of the plan. When did the IRS say you're screwing the tax, possibly screwing up the tax qualification? The IRS didn't say that. I said the actuaries. The IRS never said that. We went with a VCP submission, which they approved and presented the plan. The third point I want to say is there any significance to the fact that when you went through the VCP, you did not submit the 1980 and 1987 plans? No, because generally you submit the plan as an effective when you file the VCP and the IRS has a file that keep all the plans there. But even though the 80 and 87 plans are significantly different than the 95 and 02 plans. They are, but they have the file there and they presumably would have reviewed them. There's no significance attached to that and certainly you're presuming that the IRS has the file and is going to go back and take a look at plans twice removed and three times removed? I do assume that they have a file. I know that they have a file that they have a file and that they're going to have to request the S-Planse from them and ask cases. That's given that that's suggesting that somebody is doing more due diligence than what normally would be done. I see my time expired of one more point five. Go ahead. He'll give you one more minute. One of the final points on exhaustion. Exhaustion clearly applies here. There's two points about futility. The first is it's a high burden that the plans have to show that there's other fixed reaction to whatever appeal they take and none of the plans took an appeal. Calling a plan administrator up does not consider appeal. Secondly, you generally, you have to move under the case law. That's Harold. That's burger. Very promptly in order to get relief under fertility. You have to run the court and say we're going to file a suit. You can't say that. What about your opponent's argument that this is really a question of, and I cut back, is opposed to your contract interpretation? It is not. It underharrow if the, if the, you understand, but that's the conclusion. Why is it not? I understand. I'm going to explain it. Okay. Well, it's not a, you don't get a cut back. And once you can say underneath interpreting the plan or plan interpretations unreasonable, under copyright is not permissible. Something in district court, you see that it was. You don't get to that point because there's nothing in the plan that expressly grants these people a subsidized benefit. And that's my pointer into a six A. It's an extra judicial, an extra erissa commitment where clear and plain language has to be there. Otherwise, the statute mandate takes effect. Thank you very much. Thank you both counsel for well presented arguments. I'll ask the counsel if you would get together with the Eclipse office and have a transcript prepared of this or argument and then split the cost if you would please. We certainly will
. I was going to take you back. Thank you very much. Call our last case