terms must be disclosed how could it be otherwise it doesn't matter whether this isn't a receipt case or a contract case it doesn't matter because you can't have secret terms in this case they palance were long term employees they were salesman for western so they sold basically life insurance and those types of products and they were told repeatedly over the years you employee requalify team you get your production up we're going to give you a preferred income for when you retire you have a bonus now once did they ever hear receive a copy of a plan they didn't hear of any disqualifying terms and then when they do in tar after thirty something years of service they are owed they receive an award letter saying you're going to get these benefits thank you very much you're going to be getting these payments on this type of order and then shortly thereafter they're met with a lawsuit saying oh you went and registered with another company that that breached the terms of the play and we want the money back anyway so there are a motion to dismiss the trial court says that's interesting case we don't have your sticks goes to tell a court somehow instead of just saying that still you have a duty to disclose disqualifying terms you may not have a duty given the terms of plan but you got it down you're going to get these benefits but don't do a b and c are you going to lose in there i do say those are the only two instances where you see the plaintiffs having something to do with saying it was atop a plane we never argued that it was and we never benefited from from the fact we benefited from the fact there was a risk a plan that gave the the the federal court exclusive jurisdiction and that was the only so that the the test for judicial stop is not even close to being met we didn't argue inconsistent positions we didn't argue for the court to or find that it was a topic plan and we didn't somehow take advantage of it because the whole idea was it was generous of plan now if it's not a tip top it plan the fact that they failed to give to give the that it was atop their plan so there's nothing in the record to show that is the topic now top their plans or you know they're they're tough to find because it has to be a special plan it's not minute to five percent top five percent of the injury sales who have nothing to do with their terms of the point of employment or compensation they're not involved they're not at that they don't go to meetings they don't see it they knew nothing about this other than what they were told any really is if you get in that top top five percent we're going to give you certain deferred compensation depending on your production and your profitability that's all they were ever toat there's no evidence to the contrary whatsoever so these men have no knowledge and there's no evidence of this there's nothing in the record at this point about how the how the salesm salaries compared to the rest of the company i think mr i want to stand up a bit in the in the evidence in the record was the affidavits and statements of deposition that were taken during the litigation not in the administration process remember but we did put virtually all of that evidence and to the ministry of record when we were a man did it initially we argued that there was no reason torie ministre to review because th the ministry of record we argue wasn't top air plant and oh boy they waited to the maximum time and said look these guys they got licenses with other insurers and therefore they violated the terms of point for many years and when he retired other agents came to him and said we've got some western certain customers who need some more insurance but western southern doesn't sell it to them we help so he goes and gets a license with somebody else and he them some some paul some policies that because of their age and health they couldn't get western how did your clients know they were supposed to getting entitle to this money if they never got the plan summary because there were letters to the employees saying you know if we have this we have this program and if you're up in the top five percent you're going to get so many credits for your volume over your your line and you will accumulate that and then when you retire you're entitled to get it and you have some options of whether you want a lump sum or you want to take it over time and those type of things but not once did they ever give  a disclosure of the disqualifying terms that's the key here that's the whole this is whole case comes down to this if you don't know what you're not supposed to do there how can you not do how is it fair to say go work for him a deal after job go over and above the special agent for us and we're going to we roared you that's a unilateral contract and they did it and they retire and they're said they get a award letter saying thank you very much for your service and you did this and you qualify for this special payments and you're going to get  dollars every quarter for so many times ok nothing about it now be sure not to go and get licensed with another company be sure don't go into competition with us be sure not to do these other things nothing no hint that there were any qualifying terms any there was no you said look but be careful we may not we may take this back that's not fair that's just fundamentally fair and you know the court and i circuit and binns versus exxon and of course and then reg enron corporation is curious case plans to do serious work or have a duty to provide information this material to the beneficiary if you're going to give them any information you've got to know that it's accurate is truthful and you can omit something that's material and what can be more requirements and so we don't believe there's no ministry of evidence to support a finding that this is a top him plan huge issue stop clearly doesn't apply because not one of the one of the three points to establish a judicial stop of is is is is in the record exists and the only two references were clearly in a verb and in and in really should not have been considered so i'm going store for more yours me please the court i'm applicants differ on behalf of the western southern life insurance company and the plan at issue here i'd like to begin your honor's were to clarify points on issues that came up during the opposing counsel's argument first of all the plan is not limited to salespeople the plan is restricted to the top five percent of employees of the company so in response to your question dr percent defined as the highest earning five percent of what five years the top five percent  company's four employees and four agents independent agents of the company but the plain language of the planet issue here that applied to employees was for employees across the board and to the best of my recollection there is no way exclusion for the executives of the company and in a just just by way of example mr owens here mr esbat start with  him you know he was earning something close to six figures mr owens at some point was earning two hundred thirty thousand dollars a year as the manager of a region for the company that the second thing i would like to panel had so the case is not good law and it doesn't even involve a top plan as well your honour's the two primary issues in this case the plan administr determination and the district court's traditional the stoppel terminations are both reviewed under the most forgiving standard of appellate review abuse of discretion and this is true even though the posture of this case is summary judgment case law from this court makes clear that judicial stock will is reviewed for abuse of discretion even if it is the basis on which summary judgment is granted or another dispositive motion  still gets reviewed for an abuse of discretion if the basis of judicial stoppel the plant administrators merits determination here was clearly reasonable and certainly not an abuse of discretion belabor that point unless there are questions from your honour's this morning because mr willett heard didn't have anything to say about that the merits determination but the employees were clearly competing with the company during the forfeiture time period and that was also cause for them to be terminated had they still been employees of the company if the plaintiff's own testimony you know makes both of those points on the merits of the determination clear they or they warned or they put on notice they were not warned your honor you know it is is there there is no put it this way that there they claim they never received any notice of the forfeiture provisions or the plan there is an affidavit in the district court record i'll be it not the ministry of record otherwise that that issue is irrelevant because top have plans are fundamentally different than normal or a supplants where summary plan descriptions are the norm and required that is a  policy choice that was made here by congress for employees of a certain type and it was a policy choice that was implemented by the department of labor there is not  any constitutional challenge in this case to the statutory provisions or any administrative procedures act or other constitutional challenge to the department of labor rate or labor regulations on this morning and let's back up he is arguing here anyway that they never were given any notice that they could give up this money if they went to work doing what they did at work now you say that that's let's assume they're true that it's irrelevant why because for top ha your honor congress has made the determination that the usual rules of relating to disclosure best teen fiduciary status so on and so forth do not apply to wrote those unusual a research rules do not apply to top out plans and you know we we could debate the merits of that policy decision by congress but that's the decision that has been made oh your ear responds to that and i'm not faulting you want to be sure i understand your response to this even if he didn't get word one about this forfeiture condition we had no obligation to tell him that that's correct your honor we don't necessarily agree that they didn't get notice of this because as i indicated there's affidavit in the record from the human resources person that is the company's practiced for vide summaries of the play and even for top planned participants but but that is correct your honor congress and the department of labor in the case of top hat plans have they have not have chosen not to impose that duty on the employer as it is imposed in the usual many not all but many of the normal or wrists are requirements and what's the rationale that management and top earners are far more sophisticated and i mean what is it that's right just cos the rationale is that certain types of employees are able to fend for themselves and are you know do not need the kinds of mandatory disclosures and other produce that are simple that the regulations say that they up are five percent of earners in a company or example frome certain regulations it's not quite that straightforward judge plan is defined in the statute as a as a play in for a select group of managerial or highly compensated employees and which is the thing that just strikes me as odd about all this and maybe it's irrelevant because it really hasn't been pursued or all talking about a recession ok is it or isn't it just as a matter of ordinary contract law never mind the rest of leave it out of the picture if you have people who are the beneficiaries of one of these plans don't you have some disclosure requirements and you have to say ok here we say in the mississippi river here are the rules of engagement just never mind arista leave them out of it just as a matter of contract law this person has been working for you for x number of years he's got this entitlement to so money every quarter or whatever it is don't you have to say here's the deal here respectfully judge king no law don't you have an obligation to tell somebody who's a beneficiary of something like this here's the deal so if you go out and you sign up with some other company we just stop paying you don't get any more money no louisiana whatever we call it here it isn't common law whatever but i don't believe the plaintiffs have any claim based on you know state law here your honor and they have not made me like i'm i'm gathering that too think i understood i understand and appreciate where a lot of these questions are coming from this is a different regime from what i think all of i mean i'm of congress the department of labor have gone down this path but this is the path they went down and and so you there was there what there would have been there no duty to disclose anything here the disclosure obligation was completely fulfilled by meeting the standards set forth in the regulation which was to notify the department of certain factual need to show a comparison of these top five years versus what other people in the company earning but we don't have a lot of case law on what makes a top hat plant i think it's alexander out of the first circuit tops about there needed to be a showing that the money these people were making you know they were all making a million bucks no one else is making thirty thousand sure it's a select group but if the disparity is not that great the first circuit indicated it might not be top so what showing is actually needed  absolutely right just cost of that there's a bit of a dearth of case law nationwide on what showing speed on this score in the reliable home cases that we cited look to the terms of the plan itself to make the assessment of the plans topcat status and because this plan indicates that it is limited to the top five percent of employees i think that inherently answers to questions about earners you know there is a case on the name of which i'm blanking on i apologize but there's a case out of the second circuit that faced this question and so i would say by definition because this plan under its terms limits it to five percent of the top five percent of earners in the company employees earners in the company that that  satisfied from the face of the plan itself and as for the paper injection or about that about the employees yes that that is limited to the five percent yeah  and i did make a mental note that this is this says employees it does not say sales staff or sales employees retail like that so i'm just because of human fallibility i'm reluctant to tell you i am one hundred percent sure but i'm as close to it as i can be as i stand before you so the other criterion for the top hat plan you know to follow up on your  inquiry judge cost as whether it's funded your not in the plan itself i think answers that question as well that makes clear that people in that they are creating some sort of bookkeeping account on the books of the company t reflect you know that the credits that ploys under this plan would qualify for so there's absolutely nothing in the plan or anywhere else in the record that indicates this is a trust that was set up or a separate resurrect or anything else that would indicate that the plan was fair and a cruel is what it is it's a bookkeeping injury as far as i can tell just kidding that's right yeah yeah in addition to you know the and the during the pendency of the federal case in the district court deal out of court of appeals rendered decision indicating that the parties which in that case was mr owens and western southern agreed that it was a top plan that that was not picked up because western southerns argument in that case was that its claims for a claw back of the money were not preempted because it was a top hat plan and the court of appeals in ohio decided that notwithstanding the fact that it was a top out plan because the parties so agreed according to the court of appeals the claims were nonetheless preempted the district judge here subsequent to that ohio court of appeals decision remained into the plan administrator for exhaustion of or ministers ministry of remedies on the express premise that the parties agreed it was a top out plan and yet the plaintiffs did not challenge that in their appeal to the plan administrator they did not challenge that in the appeal to the planned in a straight or even after the plan administrator said it was a top hat plan for the for the following x y and z reasons and the plaintiffs moved the plan administrator to reconsider they still didn't challenge that it was a top plan it wasn't until the case came back from the plan administrator after a couple of years of litigation under which the case had proceeded on an agreed premise that this was a top cap plan and after western and southern move for summary judgment because it was a top cap plan among other reasons that the plaintiff finally said something to the effect that it was not a top up plan and started making that argument the district court correctly believed that you know she had been adjudicated the case all along and had long been led to believe that it wasn't fact atop that plan and she correctly applied judicial stoppel in this case or  i disagree counsel was incorrect on the facts there and there were only two instances where the term top airplane top at risk of plane were used by plaintiffs it was in both cases but i've explained it to you before it was not something was and even is there is no record ever since the stuff they had to do the defendants had to do to prove that it was top a plan they put no evidence in the ministry of record there is no evidence in the in the trial court record wh should be only based on the ministry of record supporting the facts that this is the tropic point and topic plan is and is unfunded and maintained by an employer primary for primarily for the purpose of providing deferred compensation for sole lect group management hali compensated employees that's reliable home we are beholden tells us instructs us on what is a topic plan and what is not but when you have no apparently no no repeat statements and i think it's important if we get into the physical and in reliable home two thousand and two decisions never been reversed it's been cited millions of times that even a top airplane is not exempt from fair review were quarreling and reporting administration enforcement and disclosure of course disclosure on the cases the said disclosure doesn't necessarily mean you've got to give the provisions of the plan which aristos as normal you have to give why would you even have to put it in the statute if you're going to put impose a contract with someone you have some secret terms well you know you can't enforce it there's a lack of consent there influence their negotiation or otherwise the design an operation of their defer compensation plan taking into consideration the risks which with these substantial rights and protections congress found that in certain cases top management they officers of the company the guys who run the company are day they have power among themselves you don't have to be as strict in your disclosure requirement when you have a hundred to two hundred they call them field associates that's how it's defined in the questions of the playing field associates who are insurance salesman all over the country have no participation in management at the top level there is no requirement just cost is that they make so much money or more it's just a how much among the insurance agents to qualify for those benefits  it's five percent of all employers i guess we have to look at the flailed associates these that the plane is a part of the record only because i had to get a court order compelling production of it into into the record you know if you're going to make disclosures you should you know you should disclose this while flying planes you should disclose the plan itself but even when you when you fall lawsuit and you don't want to produce it you have to that shows the great lengths that western southern went to to can hide these terms so that they could go and gotcha and not have to pay the money after the employees have retired and no longer of use to the company