the court my name is elizabeth prana and i represent the appellant's we urge this court to reverse because the district court committed three hours first it did not even reach one of our two causes of action the cause of action for our claim for benefits under a proper interpretation of the plan second as to the cause of action it did reach the district court awarded an inadequate equitable remedy for  itself would have been actionable as both in a recent notice violation and a violation of the terms of the plan finally the district court awarded inadequate prejudgment interest at a rate and on a basis simple instead of compound that allowed xerox to profit from violating a ressa let me turn to the first point why it was error for the district court to not even reach the claim for plan interpretation we have always had two different claims for relief in this case one is a claim to benefits under the reasonable interpretation of the xerox pension plan in this case the other is for equitable really if based upon a risk is notice violation on remand it made sense to take that second question first because this court held in two thousand and thirteen that there was a clear violation and there was also as the district court found a clear basis for an equitable remedy but the equitable remedy that the district court ordered was less you hiram that's correct your honor and the new hire remedy basically ignores the first stint of my clients and employment at xerox when calculating the benefits that they are due and he doesn't have to also provide with so so a measure of real relief so right it did try your honor when i talk about the second era i would i would like to explain why i believe it failed necessarily in that effort but the more inter more important point for the first argument i'm trying to make is that because the equitable relief that the court found appropriate was less than what we contend my clients would get under a reasonable interpretation of the plan our plan interpretation claim was not moot it was absolutely error for the court to decline to hear that claim once it fashioned equitable relief that was less generous than the most than the least generous non arbitrary interpretation of what the plan requires there was no basis it was textbook error for the district court to not decide the benefits claim at a minimum the court should address that on remand and when it does so we zero one a one b our claim for benefits as required by a reasonable interpretation of the plan our claim was that under any reasonable non arbitrary interpretation the relief awarded would have to amount to the layout offset which is the nominal deduction of the amounts my clients actually received after their first stint of employment or the actual annuity offset those we argued are the only interpretations of the plan that are non arbitrary and viable and are benefits cla it is not your own or for this reason the it is correct that in two thousand and seven the district court awarded layout and this court firmed the supreme court reversed on the grounds that that was an interpretation issued without deference to the plan administrator and that the supreme court said well one honest mistake will not deprive the administrator of deference we're now to the point where there have been not one but two mistakes that this court has held were unreasonable interpretations of the plan and in two thousand and thirteen when this court made clear that at a minimum the plan could not be interpreted worse than new hi mentions that is a good question your honor i believe the answer is yes i will have to check that that detail well as to those as to anybody in that circumstance treating them as a new hire without taking into consideration the time they were employed prior to first leaving xerox would leave them in a worse position the new hires i think it that it's correct the relief awarded would leave multiple clients of mine in a worse position than actual new hires because for actual new hires that the rate of highest average pay applied to all of their years of service that's what the plan promises and that's what my clients were repeatedly promised and the equitable remedy that was awarded is insufficient because it fails to accomplish that and the district court erred in that respect only discretion it awarded simple rather than compound interest at a rate that was too low excuse me for one moment he did your honor and that amounted to basically three point two five percent as we point out at our reply brief a page twenty five the reason why that was an abuse of discretion is twofold first someone who actually receive the benefits they were owed many years ago would have received them and been able to invest them and the returns would have compounded we requested compound and word of compound interest and the district court denied it without explaining why that was plainly error and it's  my friend doesn't even try to defend but second the three point two five rate was too low for the following reason the district court stated its intention at and this is that the special panix sixty  sixty seven it said this court's intention is and has been to ensure that all the plaintiffs end up in at least as good a position as they would be in had they been paid under the new hire remedy at the time of final separation from xerox xerox failed to pay for many many years and the rate that the district court awarded was too low xerox undisputedly had a cost of capital that was almost nine percent the rate awarded basically gave his xerox a below market loan from my clients for many years that rewards violations of a recess in a manner that this court cannot condone and that we would urge you to reverse turning to the question about whether the supreme court has foreclosed the layout remedy i believe it has not for this reason one of the claims that we had below is that xerox has evidence bad faith and cleaning bad faith that has happened since that decision and that as a result of that bad faith and those planned interpretations that evidence serial incompetence the administrator is no longer entitled to deference and if that's true then the lay out interpretation that the district court direct you in the appendix to page five of three it's not going to clearly answer your question but at least that's a chart that xerox submitted that tries to show the differences in the awards in the relief that we awarded under lay out versus new hi it would give you a sense of your honor is that the layout column is nearly always higher than the new higher columns and so it does i don't i don't have at the tip of my tongue a way to quantify the difference that we're talking about between those things but that's one of the sources in the record that could help at least ballpark or show that it's a meaningful difference and there's a reason why your ex has fought so hard to try not to have to pay what it promised my clients and another thing i can direct you to his the page sixty six the district court has noted that the layoffs it appears to be more generous and in fact xerox ordered some clients who had received it xerox filed a motion which was denied and is not an issue on appeal but asking that some clients who had received layo be ordered to repay it and so you know it's not we're not fighting over something miniscule it's something that matters my clients were promised these benefits long ago and its plea is you know time it's been a long time and something should be done to ensure that they receive what they were promised  but that is the district court's opinion from may fourth twenty seventeen i believe it's at say a sixty six and a special appendix yes se s a sixty six your honor we believe that the district court's decisions and orders which granted the plaintiffs the remedy that they sought below and granted them plea draw prejudgment interest should be  basically for two reasons first the plaintiffs have not shown and met their burden of proving that the district court decision orders were an abuse of discretion and second the district court was not writing on a blank slate the district court had the benefit of this court's decision in two thousand and thirteen and as well as the supreme court's decision in two thousand and ten outlining very clearly what remedies should be in a fact for the notice violation that was found by this court in two thousand and six and contrary to what opposing counsel said the remedy for the violation of the notice provision that was found in two thousand and six was not a plan interpretation two thousand and thirteen this court said because there was a noticed violation the first thing the court should do on re man was look to see if an equitable remedy was appropriate and only if it found that an equitable remedy was not appropriate should it look to the issue so that's what the district court did evolve a case that's a law of the case and just justice kirsch was on that panel so that the district court did exactly what this court at several pages and we cited them in our brief for example earlier stages much earlier stage it is that much earlier stages but it was through two thousand and ten for example you're out the administrative claims process from  am standing there we we have several sites to it at page twenty six of our brief and in the record it's probably more than one hundred pages and it cited a nine sixteen probably eleven hundred where throughout the claims process they put in letter saying they wanted to be treated as no worse than new hires it's in the complaint in this case  paragraphs forty two and want to leaven and it was they asked for it in two thousand and ten to be treated as new hires and there was a reason for that the reason was because they knew they weren't going to get paid duplicate benefits for their first term of service and to ask answer your question judge her sh there is no plaintiff in this case who did not receive a lump sum benefit for their first period of service based the full amount based on their first period of service and that really is not in dispute and that's why this current court the district court looked at the knew of the plan reformation and sad the plaintiffs have been able to show a mistake on their part about what the plans terms were in that quotable conduct on the part of the defendants in not explaining the offset provision notice violation it's a notice violation and that triggers the se court found was appropriate there not the most generous remedy that the plaintiffs wanted samus in cigna the plaintiffs wanted to go back and cigna to the original plan which was a and wanted that to apply to their entire course of conduct a cut tire course and climate and the panel of the second circuit that heard that said that's not appropriate they're not entitled to a windfall it's not what the the parties ever planned or not what they ever were expected but a reasonable equitable remedy same thing this court found here these plaintiffs never thought that they would be paid do good benefits and that's why their early letters and their complaint and what they reasonably expected to be paid were important they they never were expected to be paid duplicate payment payments for their person first period of service and they weren't the court then said we're going to act only treat him with no offset for their second period of service and that's why the notice provision doesn't matter because there's no offset they were treated the same as a new hire for their second period of me ask you about prejudgment interest yes and it's a very short justification from this record but we have it's a different scene by a percent in three point two five or five used to know what the prime rate was every day unfortunately in my life but i no longer need to know that but it's a significant five and a half percent it was it's not exactly it depends on when the pla he adopted the prime rate which is variable over time so for each plaintiff it was different roughly it's a delta of it's a delta but it varied over time and if you look at xerox so they left from one nine hundred ninety seven during their second period all the way to two thousand and fifteen that's when they retired some of these people were still working when the remedy decision was was issued so their data pre judgment interest depended upon when they took their retirement fund if it's out of out of the plan so they could have gotten pre judgment interest based on the prime rate that w effect when they took their retirement benefit so it could have been three point five but i can't answer that for certain because for different people it was different dates and that's why the judge that that was a fair rate th just used in a flat rate of nine percent and he relied on cases that were in the second circuit and thought that was fair or fair rate th using nine percent over the whole period of time bring new york statutory rate the it was we had asked for the post judgment interest rate of nine hundred sixty section nine hundred sixty one he rejected that and relied on some cases in this circuit that were the prime interest rate and there were several including in the arrest the contests where the court shows the prime rate because it was variable over time and it  plaintiffs could get if they had to borrow money so he detailed his decision in that regard the plaintiffs were received approximately as a group of about nine hundred thousand  dollars post judgment interest also if it's discretionary under arrest whether they receive pre judgment interest at all and he actually overlook the fact that they didn't ask for pre judgment interest in a timely manner so he was actually very generous to these plaintiffs and award him any interest to begin with because they had not made that motion on time i will say that these plaintiffs have already been paid approximately well over twelve million dollars in additional benefits to date based on this new hire approach fact it it if you need the than what the plan provides the picture no new hire approach they were paid twelve million dollars some of them received payments during out based on the planet minister's approach of six million dollars for example there's a point in the in the plane of spray for they represented that mr frommer was receiving a pension of five dollars that's not the case he never  monthly pension of five dollars that's not the case he received a payment when he took his pension in two thousand and ten of zero eighty six thousand dollars because he took it in a lump sum and then he received the court's remedy which brought him up to about two hundred fifty seven thousand dollars so there's facts in the plaintiff's brief that are just not correct so i do want to point that out you we believe that the court made a very fair remedy never had to reach the plan interpretation of the plan contrary to what opposing  believe that the remedy it reached was fair and equitable it wasn't a windfall to the to the plaintiffs but it was a fair and equitable remedy after all of these years including that portion of its decision that was based on pre if i may i'd like to try to briefly respond to five points first the chart that my friend was talking about where she talked about the plan interpretation that's the same plan interpretation we challenge as unreasonable that the district court didn't even reach and should have reached second it is absolutely not the law of the case for the directive from this court in two thousand and thirteen not to reach our claim of plan interpretation what this court said what it assumed was that if an equitable remedy was awarded that remedy would amount to the relief we were seeking i e the layout set or the actual annuity upset when the district court decided to craft an equitable remedy that was less there is correct  eunice early but can we just have at various points in the past urge the adoption of a new hire in litigation we have said you cannot treat them worse the new hire we have never said that new hire was an appropriate interpretation of the plan it is not that's why this court held that it was not in two thousand and six and again in two thousand and eight because the plan language very clearly says that under that formula all years of service will count they are the ones that urged new hire we were eating now in the administrative process certain clients said you can't treat us worse the new hire others said we'll take  bio it was all futile and so the stuff from the administrative proceedings absolutely isn't a waiver of the litigation requests that we have always had to be on the just understand your question with respect to farmer three thousand thirteen that there is an equitable remedy that's available your honor this court did not say if and only if you find an equitable remedy of one dollar available everything else is moot that is no you cannot read the language that way federal courts decide the claims before them if the equitable relief awarded was insufficient under was not as generous as our claim for plan interpretation as we contend then at a minimum that claim had to be reached and this court we there's no way fair reading of that foreclosed it might the final two points i wanted to try to squeeze in it's not a windfall if it's what you were promised and find and my clients were promised layout as the square and previously held and the statutory ra