regulations that govern arisa be applied in the context of this case because the factual allegations of the complaint established a grounding for application of call it defend it is not a reason for denial of the claim but as a couple of our unpublished cases say it's only what a  unpublished decisions gives any reason why the that distinction was being drawn or really gives any grounding as to what that distinction actually consistent  it certainly was a substantive defense in the sense that the antis arm was relied upon by the district court as the basis for deny now the fact that the denial took place substantive defense the basis for it and i hope that wasn't asserted in a timely manner the the regulations require that all reason or reasons multiple be disclosed pre kitchen and we would argue that this is a matter of that sort so that the it's a distinction without a difference i would go on to argue also that spine index  existence of the cause now in this case we believe that the allegations of the can quite clearly establish that the insurance company knew or should have known that the  services the claimant cost the insurance company for verification the in the call they announced to the claims representative for the insurance company they are pursuing the claim as an out of neither of the other published cases cited by the blue cross is really directly relevant or directly on point and so the attempt by the district court to try and unless my understanding is that your argument is that phone call is made benefits were confirmed but there wasn't anything expressed in that conversation where blue cross that yes we will we argue that that is a statement of concealment because they they disclosed a partial truth the claimant was eligible to receive benefits that is a partial truth  is anti assignment something you can even read in the claim processing that or does it only apply to litigation has happened we believe that there is a affirmative duty on the part of the  the of the communication i'm on and i understand that if i could could blue cross they were not paying we're not paying this claim because we haven't had time before any litigation happens they say that they say we're not paying and the reason why it's damp and i think they certainly could say that and not only could they say that they should have said that when it isn't there isn't just one reason necessarily that they have to disclose if the have if they have five regions they're required to disclose all five reasons in the pretty litigation communication process and they are required under the regulations to disclose not just the reasons but also the  for three basic reasons one the anti theft that the anti assignment was not used as a basis for the denial of the denial was because this bill charges anti simon club or something like that now there is no paper here are i making a different point i'm saying that i'm seen to be anti cyber provision wasn't the basis for denial the basis for denial was that bill charges exceeded the maximum allowed under  purported assignment yes but because that purported assignment ship does that ship any of the birds or create any new east blue cross now it doesn't in order for us to waiver we have to have we have to have an intentional relinquishment of unknown right ok the fact i could your are i could send the n f l you now an email telling him i'm their next quarterback i'm an provision is a litigation defense your honor it would be the same as if they were to say and there could be a statute of limitations defense then you could have an unclean hands defense there could be a defense there could be a number of litigation defend  mean i want to understand i mean are you saying that you would never raise the assignment as a basis for denial at the claim stage because it only implants in a litigation company is that your that's correct your honor that's correct it's not a basis of denial of the claim that didn't that the denial of claims medical necessity whether it was experimental whether in this case it exceeded the bill charges those are the those are the basis for denial the anti assignment there is poverty for the member this antis i'm going to prison prevents in the event of litigation we don't know how how in the world would anybody know who's going to sue who a year from now three years from now or whenever and that if somehow that every litigation defense wasn't disclosed ok under pre authorization call the somehow resulted in a waiver that it wasn't even asked and even if it was ok so it's different than the assignment that we have here because in an inspiring text they could have assigned these rights it was permissive you had to get the plans on sir to agree to it in that case it was  it is in a context that you know if there is no there is no evidence like when you look at par like where there were letters that were saying you know the denial was based because the claims are not covered and then all of a sudden they get in they say well wait a minute they're not medically necessary so there was there was these conflicting messages here or there is no conflicting messages that have been given whatsoever the claim was denied for the reason stated are at the claims for litigation if you know i'm asking you to assume facts yes if you know what that claim stage pre lit occasion that the only party coming after recovering under the policy is of i mean that's the part i mean i guess that's not what the basis for denial that was asserted in this case but it could be and why shouldn't it be inserted so that the issues around the table don't you know you are i'd have to think about it i don't know there could be a number of factors that that inform that hypothetical question i know in this case that that was not the case  you know it it feels more like in some ways but in order to invoke you know there'd have to be something more there have to be some intentional relinquishment because these are recent documents remember and you know what what the planet is trying to do is just to come in a stranger to this plan who's not a signatory to the plan and and basically rewrite plan provisions and if the waiver of stoppel could happen as quickly or as easily as  more you know real i provided a better way i mean they told them a bunch of different things and even there the court said we're not going to kind of stop will because you can't use a stop of coming and rewrite lant and other parts of health and saw that through that they are unpublished we understand that but eating and brand parsing anna there's a brand new case out of the th circuit which apparently was that you know the mecca for the the and that's in the herman court that's in the th circuit and i i submit to you the best precisely right because there could be a number of litigation defenses that don't apply in the context or the analytical framework of the plains process would be a bunch of reasons that you could assert in litigation and if if the appellant position were correct you would waive them all because you didn't tell them  they have done that is the relevant question here and it goes to the public policy point by not asserting they have to assign cause in the create litigation stage they to cry both the member and the claimant of their right to fully analyze this claim pretty litigation and to make their decision about whether even to pursue that you get or how they should proceed litigation to make those kinds of decisions on the basis of full and fair information which is exactly the purpose of the arista regulations that were that were breached here it was also the purpose of spi