morning your honor i'd like to reserve two points has me two minutes for the rebuttal please the court my name is tom kennedy i'm with the firm of cohen weiss and simon from new york city and we have the honor of representing the plaintiffs and appellants in this case and our first obligation is to acknowledge that the legal scape governing the question of retiree health care benefits both nationally and in this circuit has substantially changed not only from the filing of this case but indeed since the filing of these briefs in of course i refer to the supreme court opinions in reese kelsey hayes and cooper v honeywell and the obligation we have and we accept it willingly is to demonstrate to you that there remains a plausible and reasonably  susceptible to interpretation that retiree medical benefits are for life under this collective bargaining agreement which is the issue before you what how to construe the collective bargaining agreement and we'd suggest to you that there is one particularly key distinction between the g e collective bargaining agreement and the others that have been considered both by the sixth circuit and elsewhere and it has to do with the specific durational clause that appears in the pension and insurance agreement which as you may know from other collective bargaining cases typically unions large unions duster unions and go shit labor agreement and there's a companion pension insurance agreement in this case that agreement appears in the record as forty six three and at title one section seven appears under paragraph b the language under which g describes the health plans applicable to employees and including retirees and i refer to retirees i'm referring to the g e life disability medical plan which has two of the four pensioner plans that are the subject of today's case and the g e medicare insurance plan for part b benefits and the g e pensioners hospital in den so all of the retiree plans are included with the language which says that neither the long term excuse me the g e life disability medical plan nor the other plans shall be amended o terminated by the company so long as this agreement remains in effect and based on the existing existing case law were that to be the final word on this matter we would concede that we would be unable to carry our burden but in this case that language is amended by the following crays quote all to the extent applicable to employees close quote and that is a very important distinction because we know from this agreement that retirees are not deemed to be employees so that this reservation of rights to change the plan after the agreement is no longer in effect is not an agreement that allows g e to change the plan for retirees and we know that in part because the pension insurance agreement at title one section since the term employees as used here in means unless otherwise clearly indicated all g e company employees as long as they are within a bargaining unit for which the union or local is were made here after be exclusive collective bargaining agent and it is an bedrock principle of labor law that retirees are not within the collective bargaining unit that is referenced by the term employees so when we get to section seven of this agreement  refers to the right to change rather to amend to terminate the agreement after the agreement is knowing or in effect the fact that that is only applicable to employees and is not applicable to retirees differential differential in this case in a material way  from all of the other opinions that have been delivered to date and the consequence it seems to me of the cases that have been delivered to date is to take many of the clauses which do in one way or another suggest lifetime status in the in the supreme court and this court has said you those are more than two of these provisions one in the and and one in the collective bargaining agreement does the one in the collective bargaining agreement not make a difference to your argument i don't think it does your honor for this reason and we are referring to title four section three of the p i a has a second general durational clause which appears at page twenty of a forty dash three and that reads that this agreement shell subject to its terms continue in full force in effect as to the company in the union and locals recognized as provided in article one of the g international agreement now that to us harks back to that definition of employee in which it is the bargaining unit that is being subject to the expiration of the collective bargaining agreement not retirees now this is an instance where the company if the company wanted that clause to apply to retirees it could have said continues in full force in effect as to the company and the union and retirees who claim benefits under this agreement or any person who claims benefits under this agreement they didn't do that they restricted the expiration clause to the collective bargaining units and retirees are not within the collective bargain units so in our view they are example not only from these the specific durational clause for the plans but also the general directional clause that appears in the p now we have another example that i think is useful in this case because if you look to section seven a section seven a identifies the same company rule with respect to the company's ability to amend or terminate plans and that is referring to the pension plan and it also says to the extent affable to employees and one of the points this court has made and others have made is that there needs to be a parallelism between how the retiree medical benefits are treated and pension benefits in this same language with respect to section seven a and b a referring to pension benefits be referring to medical benefits gives you the parallelism that allows us to argue that the agreement should be interpreted as providing for lifetime medical benefits you know the problems seems to be to me and sure there's an explanation that you could provide to the contrary with regard to these cases that have been coming down from the supreme court reasoned healthy hayes on the well the supreme court seems to be saying that whether or not same but i think the import maybe of the cases benefits then the pensioners do not get their lifetime health care benefits in other words then the collective bargaining agreement  tool for getting around pieces where there was a clear clear expiration date that did apply to the health benefits the what i would point you to the most pacifically and i'm referring to the cooper v honeywell decision where they said to be sure there is no hard and fast rule that a provision meaning a provision granting the opportunity to get retiree benefits health benefits cannot delineate eligibility for retiree benefits during the c b s operation and also served to vest benefits beyond the contract duration but to do so either the contract either the provision must be something more for example to have the language quote regardless of whether the c b i expires before they reach that age which i think is what your honor was referring to or the rest of the sentences or other clues must spring from the c p a supporting that intent and i think our position here is that we do have other clues we have a raft of other clues was the intention of the parties to create lifetime medical care in our view the since this was a twelve b one b six about the motion to dismiss that this decision should be overturned case should be remanded we should be able to develop the extrinsic evidence that would in in enable the court to make a final judgment on the parties intentions given ambiguities that are inherent in the in the contract so that i don't believe that it is accurate to state that if there is ambiguity there is no opportunity to prove the entitlement to retiree health care we think the recent cooper v honeywell decision is clear that other clues can spring from the collective bargaining agreement on which point of stand relied to establish the entitlement to retiree health care what are your best clue the supreme court has frankly really narrow what clues would would be indications of the in tiant of the intent to vest i think that's correct and you would those limitations also apply to your ability to show clues that the retirees should are treated are treated differently or don't you have to fit within that law are what we have to fit within the given where the supreme court works but we have to recognize that this case is different from all of the other cases because of the restriction of the specific duration clause to only employees we do not have the ability as the in the other cases to say since the general duration clause or specific duration clause applies that any clue that something might be lifetime in nature like for instance we have agreements on lifetime maximum benefits that are threshold throughout these  plans the court under a case in which the general or specific duration of clause applied would say well that's true but imply have the means until the contract expires and we can't make that that  addition of language in the g e contract because they've acknowledged that their right to terminate at the conclusion of the contract is limited to the plans to the extent they involve employees i cannot stress how much in our view obviously you have to agree with me but in our view that takes this case out of the strictures under which the other cases have fallen council argues that what it really means is that there is no affirmative protection for the retirees what is your r play at that because there is not that limitation within the collective bargaining agreements and or the the rather than presuming that the that the retirees therefore have it the presumption is that the retirees therefore do not and it could have been changed to them all along well eyes that law i think it's wrong because tack it was very clear that there should be no presumption either way and less the six circuit they kept seeming to try to find it but in the court has said to them you cannot do that and we understand we're not sitting here saying there's a presumption that the retiree benefits are lifetime in nature in a general way but specifically with respect to this contract we think since you can't use the durational clause argument then you are entitled to use the ambiguity in the contract to do suggest lifetime you know coverage for retiree health care to  infer that that was the agreement between the parties none of these cases overrule the basic legal tenant that a contract is to be enforced as written it's to be enforced to reflect the intention of the parties all of the clauses have to be considered in making that determination and we've s our brief and i can see i'm not going to have time to go over them now there were a lot of these provisions that we felt supported an interpretation that lifetime care was appropriate and in order to use what is the prohibition authorizes the retire reese to get into the pla the benefits that are identified in the g life disability medical plan which incorporates the two pensioner plans as well specifically identified as pension plans so there's two because there's four plans there's actually t sort of granting language the first is the general electic as i said shall make available the benefits in the benefits include the retiree benefits and there's no limit on their ability or the time within which they make them available then with respect to the other two provisions the language is that the company agrees it will make available to pensioners when they attained age sixty five and after they have retired the in this case g e pensioners hospital in denver th that the preservation of rights language in this contract doesn't apply to retiree benefits just as the duration of clauses don't if all of those things are as we say to you they should be then we think that it was manifest error for the court to the benefit plans themselves contain a full complete reservation of rights qualified only by the statement as otherwise provided in the collective bargaining agreements the collective bargaining agreements the provision that has pointed to only qualify that reservation of rights jaring the term of the agreement not after the expiration of agreements and those limits limiting paragraphs specifically a y only to employees only to individuals within the bargaining unit and that retirees are not so how help me understand how they act doesn't place them in a different situation from employees sees misreading both the underlying preservation of rights and ignoring it and because he's misreading the qualification on the reservation of rights it's in the it's in the collective bargaining agreement the underlying reservation of rights applies to the benefit plans those are the benefit plans that provide the benefits to the retiree's whether they're current or whether they're preexisting and as the line guage o e board of directors in whole or in part at any time without limitation except as may be other was provided in the collective bargaining agreements and it goes on to make an exception for life insurance benefits and trust benefits i'll come to in a second but the benefit plans all four of them have this otherwise i'll qualify tyree all four of the benefit plans for retirees have this unqualified reservation of rights the only exception they make is as as otherwise provided in a collective bargaining agreement the collective bargaining agreement does contain one qualification and it says that jaring the terms of the agreement notwithstanding any provisions in the underlying plan to the extent that the plan is a political bill to employees it shall not be amended it doesn't say to the extent that the plan is a political will to retirees it shall not be amended g continued to have that right to change the plans as to retirees because that's what the basic underlying reservation of rights provides for and the confirmation of that of course is the other qualification that exists in the underlying reservation of rights because it prevented g e from using its reservation of rights to change the life insurance benefits for its retirees or the death trust benefits for its retire reduce and the practice as manifested over time as each collective bargaining agreement expired was that the parties negotiated new benefits sometimes contract ink sometimes expanding and each time the those new benefit plans were applied to everybody because once the agreement expired this restriction on the ability of the company to change the plans expired and it g had its underlying reservation of rights to change the benefits for retirees whether yet retired or future attire past retire but it couldn't change the life insurance benefits or the death trust benefits if that is accurate why did the employe encourage individuals to go on and retire under the two thousand and eleven agreement with the did it with the statement that they needed to take early retirement so that continued medical coverage so that medical coverage would continue and that in fact many of the employees did take our early retirement on the promise of continued health care benefits just ranch i have no idea that's an that's the problem you have you all have been in this industry long enough to know when those contracts were negotiated you all were in the world of your men and so the expectation during that time was that there would or could be ongoing lifetime benefits were no longer in that world with so now it's incumbent upon both parties to figure out how one exists in a world that had slanguage in it that was negotiated under a very different understanding so i'm asking you if they are alleging and we are at a motion to dismiss level and there allegation is you came to us and said take early retirement so that you will have lifetime medical benefits and be protected and these employees did isn't that an indication that you believed that i would have a lifetime medical its collective bargaining agreements with nine unions for sixty thousand people around the country yard man was one case in one circuit and g was negotiation negotiating national plans with regard to law across all circuits so i don't even within this circuit that there was a question so that it's not fair to use the yard man as the background construct for even construing the what's going on in the collective bargaining she understand that that that construct is no longer available and my question still remains though if they at what has been told to employees within this within the six arc if that's the allegation that you must accept as true on a motion to dismiss is there not an allegation that g e has in fact indicated the existence of continuing lifetime health care benefits because people were offered that in exchange for taking early retirement personal remember that g d didn't eliminate retiring health benefits it changed the way of life the way retiree health benefits are provided  still spending money on retiree health benefits and it's retirees are still getting retiree health benefit coverage so again because about whether you accept all the allegations of the complaint  brainer right of course we have to accept them but that doesn't make the material for purposes of a legal question that's before the court on a twelve six motion and on a twelve b six motion the relevant question is as judge pearson recognized blow is exactly right that in fact they cannot reasonably be construed that way because every and disha of meaning from the plans and from the collective bargaining agreements is the is the g always reserve the right to change the benefits upon expiration of the collective bargaining agreements and that's all g e did here when the two thousand and eleven a dispute on notice it was within the nine hundred sixty day time for there's not been no dispute on that it's been admitted that it at the expiration of every collective bargaining agreement timely notice was given there was negotiation and a new agreement was reached here the new agreement was reached and for future retirees there was a new plan put in place by agreement of the union unions in ga and for the past retirees the unions didn't want to reach an agreement so unilaterally implemented as it was entitled to do using its reservation of rights under the benefit plans and so when we look at the even before of the two most recent supreme court decisions and this court's decision in the cooper case we have judge pearson's decision looking at these specific contracts and saying no reasonable person could construe these agreements as confirm and alterable benefit for life why because they had specific and general durational clauses that limited the terms of the promise of every promise in the agreements to the terms of the agreement they had a reservation of rights which is incompatible this court has said repeatedly with a life time vesting klein that this this and your position is  the language is clear that reservation of rights applies to everyone in the plans and does not by its terms apply only to employee correct because the reservation of rights applies to the the plants the particular provision in  rights as a political to existing retirees i don't know how you could write an agreement on that language you would say we could if we could have changed the existing retirees a long time ago correct it always had that right and  the the obviously the unions knew how to write a provision to prevent you from doing that because they did that with regard to the life insurance benefits of the death trust benefits and as this court has repeatedly said and gallo and cooper  been consistently across this case is that difference in language requires a difference in meaning and the difference in practice also requires recognition because across these collective bargaining agreements there was changes both again expanding benefits sometimes of contracting benefits at other times pursuing and those were applied to the existing retirees a practice that is completely inconsistent as this court recognized in the sarah pheno decision inconsistent with the notion of vested benefits and if we go back to the briefs that were written in this case the argument for finding ambiguity in the agreement each and every one of those arguments has now arguments and says that those kinds of arguments are no longer legally appropriate to create ambiguity following the supreme court cases less the court has further questions thank you yes yes judge and thank you for the opportunity i think first want to address the question of the reservation of rights language i did not mean to say if i said that the reservation of rights language is only limited to employees it's the etc quote except as may otherwise be provided in collective bargaining agreements so if we are correct that the collective bargaining agreement includes lifetime medical care then that that right that the opportunity for lifetime medical care limits the company's ability to terminate it if the country the language wouldn't you have to have an affirmative statement in the in the contract that would enable you to make that argument statement of coverage well the reason i don't think that's true your honor is that the the reference to the exception is the entire collective bargaining agreements there were there would be no we would have to go through every single provision of this very long collective bargaining agreement and identify what that is which is not necessary in a situation in which there is a reservation of rights that we have insisted include a recognition that the superior and to superior document in that case isn't the plan where the reservation of rights it's a collective bargaining agreement because the entire collective bargaining agreement is included in that that limitation on the reservation of rights becomes circular if our collective bargaining agreement does nothing but in order for your retirees to have the rights they had to have tightened me on through a collective bargaining agreement right yes and so we feel it is the genesis of their right then why wouldn't that language apply the language does apply because the collective bargaining agreement does in our view convey lifetime medical benefits and those lifetime medical then it benefits then exist as an exception to what the