decision where he did not allow us to him and he dismissed the case and said we named the wrong defendant we said fine let's make sure we have everybody here at the table it means we were at the table we turned and followed a separate lawsuit against a gun suspension contractual claim as we brought because we have certain his claims ultimately are against kamel general as a as a party to the severance agreement the contract and that the pension plan is simply the funding mechanism if the pension plan overpaid him the issues between them in and the pension plans arguably kummel general should employ counterclaim i guess or vice versa against pension plan of a river in your favor in the first case that means that the that's a different issue but either way this second case did them out to hill of beans unless you lose the first case maybe maybe your honor i know that's a really specific answer the issue on this particular one is again procedural surely procedural we're dealing with a venue provision again is as we indicated earlier in the fax eleven years we get that if we've got a risk involved and if a risk is involved then remember would not be appropriate but it isn't involved then three man then the jurisdictional question would be resolved in your favor so well here's why are we worrying about this venue is the only way i can see that we or your art would do specht is is and have to go back and look but he did not rule on it so does that mean that he denied it outright or not i don't know is an issue that's going to come back up are we right back here or redeal with the venue issue somewhere else i don't know your honor but to the extent that you find a but here's the concern because what action the pension plan has taken here the pension plan is even though they were paying the the non qualified portion we should have page of that you owe it back to us and we're go reduce your future monthly benefits to zero until you pay it back so i don't know necessarily everything's completely moot and the venue issue that was raised was looking to try to pull of record here real quick for your  problem is that the pension is take if they didn't just say we should have pager that you always spec one hundred fifty thousand and they elected self help and they took his vested pension plan benefit which they cannot deny that he's owed and they took it away and that's why we structure the way we did but based on your response to judge seiler i'm trying to figure out how you can at the same time be claiming that this is simply not related to going to receive plan well because we have two different things going on what happened was come will generalised as judge clay alluded to earlier they entered into the agreement with mr smith you stay through this period of time we're going to give you this additional benefit that was a  complied with that you relied on that and now they've taken it away becoming a general didn't take anything in that deal did they once that that that contract between mr smith and commonwealth didn't say at least i couldn't find anybody arguing that it did that mr smith had some say in where or how this money was going to be paid to him from from whence whether it was going to be part of the plan indeed there certainly is evidence that it would be part of an era supplant so if the deal between smith and commonwealth doesn't preclude its being part of a plan i'm still trying to figure out how it isn't related how that everything you're claiming isn't related to a plan in as much as that is where the money did come from well related to is an affirmative defense the analysis on the top of preemption complete preemption as well as occupy the field and it's certainly true and so from that standpoint they would have to raise arguably kamel general if they ever found an answer in the original case they could raise it as a former offense we think  that's it and just because kamel general chose to fund it with their pension plan versus buying an annuity versus just write it out of their savings account or checking account business account every month does not convert it necessarily into  there's no in over for the for the plan to be at stake here as far as you know the smith one for like a better phrase in order for me i couldn't briefly in order for it to be there we have to have some analysis of the pension plan go on and that's not going to occur he agreed to stay on for a period of time for specific paid money and they take medway from him and so he's just trying to seek re morning your honor sir i'm stacy allies and on behalf of amicus the secretary of labor i am here to address two issues the first is that mr smith did indeed bring his federal reserve claims in a form that is a numerated in the arista venue statute which is five zero two e two the second issue is that the form selection clause in this case is inconsistent with the provisions of the arista statute and therefore may not be enforced congress intended that a recess venue provision be very broad in order in many ways the ressa could have been a whole lot clearer your honor and the secretary of labor is just doing his best to help everybody sort it out the very beginning of the statute section two states that among other things a receipt is intended to protect the interests and  participants in beneficiaries by providing them ready access to the federal courts mr smith filed his claims where the breach occurred which is permitted under the venue provision the breach occurs in an arrest a claim where the benefits of to be paid absolutely correct or on the sec that was not asked to give an opinion in the in the in smith one i think is what they're calling it so you can screw rissa under contract principles and under contract principles a breach of contract almost always occurs where the contract is to be performed and the recent cases have decided that in a claim to benefits that is a place where the benefits are to be received which is usually where your participant where you beneficiary resides and in this case louisville kentucky that's the secretary reads the briefing in this case the a gun is actually saying that the menu selected by mr smith was not appropriate under issa and the secretary vehemently disagrees with them and there's a real winners in about the form provisions and the statute the planned provisions must yield and in this case to not allow mr smith to bring his claim where he lives is to strip him of rights that are deliberately and liberally provided to him under the statute by congress and because the venue provision is in direct conflict with the planned provision for the form selection clause the plan must  to answer the second part of your question you're on your honor there is there are cases out there and the secretary is very concerned about the number of large employers who are now adopting these form selection clauses and the courts who are enforcing those the district ted provisions of you know of contract principals and you have two parties in the negotiating but the state is the secretary not concerned if in fact the secretaries of you is that you can't have form selection causes in plans why is the secretary not concerned about plans which are huge let's just say confine them to national that you're going to have a situation in which you're going to be  filing all over the place with potentially different results within the very same plan because there are two there are two countervailing interests here and and yes  does provide a certain level of consistency but on the other hand you have employers who are him who are employing ordinary people all over the country and the problem is is that if you're going to weigh the interests of for whom it is easier to make the trip to transfer the evidence to do all of this of course it's easier for the corporation with the money and the resources and the lawyers i mean they have to be more familiar with the lawyer in every jurisdiction than the employee who is you know in many cases one of the most vulnerable members of your working society there somebody who has experienced a disability with their retired and on fixed incomes were there we don't or other dependents these are people who are seeking your claims seeking their claims to be enforced and congress has weighed these two countervailing interests throughout the rest of statute and in this particular case found in favor of the participants and beneficiaries as we see through the venue provision i see my time is up whether any other questions i can answer for the court i think not i think thank you please the court my name is still david levin and i represent that a gun pension plan first in this second case is really an alternative mechanism for an attempt to collect the money in the first case and alternative i mean i say that all of the statements that i made actually are in the record below the record in the first case was one that dealt with a motion to remain and the court was presented with numerous documents and in fact in addition to that  the the plan and the and the claims and the appeal denial were all part of the record and or propylene part of the record in the case below and in this case what's presented really in the first instance the the secretary argues about where the breach occurred there this is also an issue that was not presented to the district court it was not argued in the district court as to where the breach occurred may i say that that didn't say that the complaint or anything there is no allegation of breach of fiduciary duty which is what the breach is about the only in the complaint the only breach that is alleged is a breach of the contract in other words a breach of the obligation to pay employee benefits that is not under this under a risk that is not a breach of fiduciary duty may i say that in real britain just if i'm and you started off saying there was nothing below duty but that assumes that this isn't a recent mass the breach that is being claimed is a breach of the commitment to pay that's correct your honor that is a breach that's remet remediable under section five zero two a one which does not use the word breach it is the provision for collecting benefits if if it is in fact under arrest that's right your honor if it is in fact under not claims of fiduciary breach the point the judge the the foreign selection clause that said issue here is zero is one that says that any litigation in connection with the plan must be filed in cedar rapids iowa which of the court below found is where the plan is administered where the plan can be found and where the plan resides but it's not where the claimant resides it is not where the claimant resides and there is no provision in a receipt of that says that the venue is where the plaintiff resides there are cannot say there's nothing in the record that indicates that he was provided with it i know that he was provided with a notice of the of the the venue provision long before he brought the lawsuit but i don't i don't reserve requirement to provide there's no allegation that there wasn't one provided but i simply don't know whether he was and what i do know is that long before he brought his lawsuit he knew that about the form so action  had already been changed in your honor that would be if there were any basis for such a lawsuit first of all a question of of amending a plan isn't a fiduciary issue it is a settler issue that's what this court this what that's what this court has found that's what the united states supreme court has found four different times there is no requirement the plan has an amendment provision the plan has always had an amended vision the man on provision says that the plan can be amended at any time so perfectly legal actually i don't think so your honor the the notion of amending the plan to put in a provision where to require i'm a lawsuit where the plan is administered which is selection that would be inconsistent with the statute because it wouldn't be where the plan resides and it's not where the plan administers this form selection is consistent with the risk because it is where the plan resides it's where the plan is administered and it's where the plan is found and not only that all the benefits that are an issue here of always been paid from that plan there is no record of anything in the record that there were two checks or money coming from an excess benefit plan that's that's that is there isn't anything but even if there were eight eight on actually does have an excess benefit plan and it does pay benefits from the excess benefit plan but that's not an issue when in this case what's at issue here and when you say that of an anchorage alaska is such a provision just like one that said go to france that would be inconsistent with the statute because the risk is where the plans administered is that appropriate is a proper venue participant first of all if you will i can't say first of these are benefits cases that decided on close record generally nobody has to go anywhere it's on its emotions it's i've been doing this for thirty five years  and it's a motions practice rarely is there actually where you have to go to court that separate and apart from that if you will your honor the question becomes one of fairness to all the participants the question is if you will to issue since the use of plan the plans money to pony around to two different courts all over the country which reduces if you will  if the employer is paying for the expenses although it could come from the plan it's money that couldn't then go towards benefits and on top of that when you talk about fairness to a participant the point the judge batch of them made about inconsistent opinions we in fact i asked my client filed a motion with this court and with with this court in both cases to ask that it be heard by the same panel why because we didn't move on inconsistent decisions the courts that have looked at the issue about form selection clauses have recognized that it does advance a recess purposes because what you end up with is one court making rulings consistently about the plan the only have all these different courts all over the place doing otherwise i thought i'd like to address if i will if i may to to address what i think or significant points for you to consider in connection with this is that is he bound by the contract because it was the venue provision because it came in in two thousand and seven and he and he retired in in two thousand the the lawyer in this jurisdiction and not just in this jurisdiction but where here is that he is bound amendments to plans if there are individuals begin getting benefits are honored as long as they don't reduce accrued benefits the first case i could find like it was will first is quantum chemical corporation i didn't cite it in my papers it's twenty six fed third thirteen sixty eight and where this court found that a retroactive plan amendment after the individual had ceased the scope participant but it ceased employment was valid as long as it didn't reduce his benefit one of the most famous cases in the united states comes from court sprigg versus general motors the individuals that are already sick it was a welfare benefit plan but in this jurisdiction this rule applies to welfare benefit plans and pension plans under coomber vs but those to those individuals the man that was made after they'd retired after they'd finished working and the change was one that affected them this court upheld the amendment in musto vs american general the court did the same and an opinion on unpublished but written by judge cook in which you judge siloam you betcha judge batchelder were on the panel grimm oliver says royal and sun alliance in that case relied on the wolf decision to say that amendments that are made to plans  individuals terminate employment but are still participants are valid as long as they do not reduce accrued benefits and this one didn't and i say this to you because i think in terms of the the present within the circuit it's important for you to realize that that to rule otherwise would be to change it in addition in if you will in landis versus political i an opinion you substantive rights were statutory they were the rights of an individual in the uniform services employment and reemployment act we called you sarah and that's that's what this court ruled and that courts ruled this court's ruling was consistent with  the decisions of the supreme court in gilmer versus interstate johnson where it was found that that if one selection clause didn't in didn't just take away any substantive rights there it was the age  one that dealt with arbitration but still that says that is the supreme court says this is a form selection clause that that that that did not destroy or take away anyone's substantive rights so for the court if you were to rule in in my client's favor question comes could you i say this could you remain and tell the court to try this for a that issue  actually if you will in the supreme court case that was filed here at atlantic marine the issue there that was presented to the court was twelve b three though the way to deal with a form selection clueless you all years ago concluded twelve b three wasn't the way to deal with the form so it includes the six circuit rules that the way to deal with a form selection clause is a choice of two either twelve b six or fourteen of four and in fit in the case langley versus prevention mortgage capital five forty six fed through three sixty four and it's a procuring opinion this court actually said the way you deal with form selection clauses is fourteen zero four or twelve b six and the court really man did and told the defendant to file a proper motion judge moore of this court wrote a concurrence to emphasize that it is the party that wants to  force is choice as to how to do it we chose we chose twelve b six to dismiss and so for you if you were to find and i hope that you do find him on for amount of time my clients favor i hope that you recognize that the choice was ours how to do it the choice was not the plaintiffs i thank you if you have any questions i'm happy to answer them we do not thank you very much i don't thank you your hon we're not talking about a form selection clause here we're talking about a venue we're not talking about whether or not they agreed to forego bringing in a one b benefit claimant in federal court versus arbitration we're talking about where it can brought that's the issue  not for now with respect to whether or not venue is appropriate we're a beneficiary where participant resides worked in receive their benefits that is a stale issues law difference between appropriate and permissive how do we get to the idea that there's only one proper venue the statue would have said that it would have said you could only bring it here it was written broadly to allow the policy of ready access to the courts that is stated in the statute itself not just in the preamble it is a requirement of the rest of that we allow participants and beneficiaries to seek relief wherever the plan could be found wherever it was administered wherever they receive benefits in that case all that ordinary cases are the kind of federal claims you know it is where the college of action a rose or where you find the defendant but but you can have a form selection causes them and contract for other situations lou form selection venue well that's a case that it's going to control here as well and in his release it specifically sets the parties who did agree to this when they say i consider the exclusive jurisdiction of the courts federal and state located in kentucky with respect to all matters relating to relating to this waiver and release in the matters referred to in this waiver and release what address that address the benefit payments are going to make that are issue here so they can't have it both ways they can't see a resupplies and then ignore this actual venue and form selection clause that is a page id three to three i need to ask each of you both of you whatever has there been any effort to resolve this mess through mediation  yes participated with a teleconference with the six circuit mediation office i don't know the exact date mr levin may remember offhand but yes we did attempt unfortunately we want to reach a resolution and are you satisfied now after having heard all of the various questions from the bench that there would be no future in making another stab at mediation because if you don't somebody is going to win and somebody is going to lose your arm with a straight face i'm never going to tell a judge they asked me a question that no we will always be amicable and attempt a resolution usually that goes on well i'm not just talking about iraq war i'm saying is there any reason to think you might actually be able to get somewhere with a renewed effort at mediation because if there is this court will contact the mediator and ask the mediation office to contact you if there isn't then obviously there's no point in the other hand have to tell you that it wouldn't be a first for the mediation office in that situation to discover that in fact there were some avenues that were productively pursu but i will ask the mediator to contact you and and with but with the understanding that i am simply saying if there's some if there's any reason to think that working with a mediator would be useful find set it up with him there is not now nor is there ever any pressure from this court to do that when i want to make that clear fully understood your honor thank you thank you the case will be submitted nothing further this morning you may adjourn the cour