fiduciary has sued a beneficiary to establish and enforce an equitable lien by agreement as this court has repeatedly acknowledged and equitable mean it isn't forcible only against different figures given about how much money from the settlement actually delivered to the client and also what did your client do with it did he put it with his general assets did he said he paid in a separate fund maybe you can start by answering those questions i think i can justice ginsburg so i want to start with what's in the record and then i want to add some color that i think will provide over time after all expenses were out about two hundred thousand dollars and i think that's clear from the record what's also clear procedurally in this important and this is page sixty four of the joint appendix is that he took the position in opposing summary judgment that he has very little of the money remaining and he cited a declaration and the tax sheet that i admit are confusing and in this two hundred thousand dollars did he put it in a general count it was set aside in a specific  t there's nothing in the record to indicate that but i think as far as the rules work it wouldn't matter because the rules for equitable and by agreement the tracing rules are actually very robust justice kagan and so as equity evolved you cannot dissipate money by putting in its own account and spending it something called the lowest intermediate balance rule developed to prevent against precisely the kind of mischief that we would reasonably worry about that mr does make a difference because if he just put cash and you put it in a bank account what was presumed was that unless your total cash assets dipped below the amount that you got that the spending that you did was not out of that the creditors rights were not impair so the only way we would prevail on remand i want to be clear about the modesty of the position that we're taking here the only way we would prevail on remand is if he got the money and he spent it down all of his money not just the  it doesn't have to spend all the way down whatever's left would be subject to trace and yes that this would have just that's correct but the point i was trying to make is there's a big difference between the way equity worked which was to have a sensible rule the lowest intermediate balance and what i view is the extreme swollen asset theory that never was applied in equity that my friend mr carville's advocating under the swollen asset theory if you get new money in the future if you spend below the lowest intermediate balance but then you start earning income people can come and garnish your wages so the point that i'm making here is that the equitable lean by agreement remedy is actually far more robust than one would think  if one read the briefs of the other side who will lean by agreement was there in agreement do you think there's a we've been here because of the plan i think that issue we've lost so i mean you know i think that's another important point justice kennedy we hear a lot about a promise breaking by beneficiaries and that happens and those are legitimate concerns but from where i'm sitting i see a lot of cases where there's promise breaking by fiduciary is where they take a reimbursement provision that's preempted in plan and they try and enforce that or when they try and enforce a provision that doesn't apply by its own terms so when we're thinking from the perspective of is this the sensible rule that is consistent with the broad purposes of i think it very much is because if you take the ability a fiduciary is to reach the general assets of participants just as a background matter when we left as i understand great west we left left the issue open if the banner in fishery receives a check the by mistake is three times more than it should be but he may think it's a bonus he may not understand he spends it on is there is there a legal action that the plan can take to recover the money it's if i could not answer it yes or no for a minute and i promise i'll come back to a yes or no i think it's a very important question because this happens all the time in the pension context so the first thing i'm going to tell you is that usually when that's the case there is an error on the part of the plan and our view is even if there were no remedy that it's not consistent with the purpose of the risk or the way historical equity practiced work to make the participant the insurer of that type of error now there are remedies and here's what they are under arrest the first one is a set off remedy and in section two c of the great west opinion this court made that very clear for future payments or against future receives money because they claim that someone is still alive but they're actually dead i think that there's a remedy there because in terms of outright fraud in the wall the second prong of developed wouldn't be satisfied so  a broad preemptive sweep does not go so far as to stop plans from policing outright fraud now the more difficult issue is your question which is what if there's not outright fraud what is what is the obligation of the beneficiary who gets that check and knows it's three times you know what i got it like this can't be right you know if if the beneficiary is a bad actor and says you nominate get one over on the plan and i'm going to keep this money i'm going to spend it in the rare case where that person was of limited means and they spent the money down and it was dissipated i think i'm unfortunately i would have to say that i think a plan would not have a remedy but the reality is that's a very rare case  a position that's generally accepted or is this an arguable point from the perspective of this court's cases or yes well i mean i think the letter of your case i thought great western had left it open so i think that's this or just nothing well in the context of a recess how you would rule in this case would determine that issue and so the circuits are split that's why i think the issue is very important this is not just a subrogation matter this is an issue that will have a dramatic impact in the pension there's a simple answer which is funds that are responsible and sophisticated will do exactly what they've always done and this is a very important point funs are always worried about dissipation health insurers have always been worried and here's why the mine run of individuals who get a large tort settlement this is just the reality of life so they're effectively judgment proof except for that tort settlement so the remedy doesn't matter in other words even if you have a compensatory damages remedy in most cases once that money spent you've got nothing so what health insurers implants have done since well before great west and they've continued to do it after great west is went to medical claim is submitted they investigate it carefully and they look and flag the ones where there's like be a tort recovery they monitor them carefully either internally or through outside subrogation agents and they act promptly and you know i'm not going to say it's not a dance because we see a lot of litigation in this area because there's a lot of money passing through but plans have faced this problem since before great west these policy arguments about how this is a concern about dissipation were made in great west and i just think that they're substantially over when you say they act promptly w promptly to do and is it always the case that they can act promptly enough no you know that whatever rule you pick there will be cases where we don't like the result on both sides i can give you examples on the on the other side as well in the hypothetical you're your opposing counsel will be advising the recipient to i suppose spend it right away because then there won't be anything left i been dissipated or and put it in different accounts or co mingle it with you know a variety of things and i'm just wondering if the solution you're advocating is going to make life a lot more complicated and expensive for the funds which is of course contrary to the idea of preserving yes i understand that point i think the answer is no not in any meaningful way and here's why you ask what you do well necessary what is the actually necessary is the plane to point and say enjoying this person from spending any of that money here's what plans do and here's what plans should do they they write a letter the minute they find out there's a settlement they contact they ask to be paid if they're not paid immediately they say put this money in escrow because we have a dispute if the person says no you have a pretty good idea that you might have a problem and you go into court and this is a perfect example with regard to mr mountain you know there were six months of negotiation several letters where it was said hey if you don't if we don't decide by this date we're going to distribute the money how do you find out how does the plan find out that there's been a settlement where they find out in many ways i saw a lot of cases actually result where there's large dollar amounts and act a lawsuit is actually filed but in cases when no lawsuit is filed there's traditionally a lawsuit between who and who a state court lawsuit if i mean by the beneficiary to recover yes and how is the plan notified of that well because of the risks that you were talking about right here in this dialogue plans are very sensitive to making sure that the minute that there is a potential  they write letters to everyone to the participant to the participants lawyer to the tortfeasor the towards the users lawyer the insurer and they say we have a lien and please notify us if anything happens do the heavily in some cases they do some cases they don't that's all adult well they say they do anyway well i've i've seen both look i don't actually think it's a pretty controversial point there are some people no matter where they're sitting that misbehave and so i have seen participants who break promises absolutely we've seen plans that are in trying to enforce provisions that are not enforceable would it basically ignoring the impact of that letter by a beneficiary be a basis with the sort of fraud actually you were talking about earlier you know i don't think so i don't e notifiers and if the beneficiary or the lawyer just ignores that that's not a basis for fraud it would depend on the facts of the case that you know merely ignoring the letter i'm not so sure but i guess i keep coming back to the same point this is a legitimate problem i don't mean to demean that at all but this has always been a problem and because of the fact that most people have these monies are of limited means the compensatory damages remedy is a very little help and so plans came to this court in great west and said oh well this is going to be a disaster if there's a present possession requirement and yet it hasn't proven to be the case because people in their circumstances act promptly and in most instances they're able to protect their rights to stray so this may be where the law leads us but in your brief you try to make the argument that this is equitable in the ordinary sense of the that we're describing i'm not going to go up here and tell you that's the rule that i would pick but i think a fair minded policy maker could and particularly justice alito when you appreciate that it's a rule that's going to apply to all cases not just subrogation i think the case for this is a policy matter becomes much stronger in the pension context the reason i make that point is i know that i'm running up against this counterintuitive view that how can our how can our position even if it's what the case is say even if the unbroken line of history means this how can it not be totally at odds with the core purpose of and i think it's not it may not be the better policy in your view but it's certainly one that is consistent with the spirit of the and so the decision that needs to be made is what is this line of cases that this court has decided what they say and i think repeatedly from great west to sarah boff you reiterated in cigna that in fiduciary cases a lien is not equitable relief unless it's against property in the defendant's possession you have adopted a historical test and so in the last applying it here is so obviously at odds with the purposes of i think that applying that test the unbroken line of authorit every case and so the framework this court developed was to distinguish between equitable relief on the one hand and things like damages that clearly congress didn't mean to include in the relief that would be available and so i think it's been true since great west when this court accord relief pretty narrowly that that was beneficiary will have an incentive in some cases to structure a settlement in order to avoid paying reimbursement to the plan but it's also been true since great west that because of that plans have a need to counter those incentives by by diligently protecting their rights and so i think the way that the court rules in this case is not going to affect the ability to be the existence of those incentives on the part of beneficiaries or the need for plans to be  diligent so i think you know i think it's important to keep in mind here that the only reason this issue comes up in this case is that the plan wasn't diligent and if the plan waited for months when it knew that it had a reimbursement claim and and that that was being disputed it didn't seek an injunction it didn't file suit know i think this is a situation that is unlike mine one of cases where we see that plan some great west have developed measures that they can take in order to protect their rights in wait with the government on the side of the i think in in great west i think we're taking a somewhat broader view of ecuador relief than the court ended up adopting in that case and so as as we get here today we've taken this position because we think it is absolutely the logical consequence of great west and adopted a narrower understanding of what equitable meant in this context than you thought was appropriate at the at the time you argue for a broader understanding but but as we as we come here today of course nobody has has argued the great western service should be overturned or merchants for that matter and so we think the consequence of those two decisions is that there will not be relief in a case in which the plan participant has dissipated the funds but when you say what is the government's position on  the coming rule at equity i think reflected the fact that once funds have been dissipated the lienholder can no longer collect so the way it worked was that if you had funds in your account then and you spent them that at first it would be presumed that you were spending your own money but once you got down below the amount that it was originally subject to the lien holder would only be able to enforce against whatever remained in that account even if it wasn't sufficient to satisfy the lien amount so it's basically the same dissipated wall that applies in cases that don't involve commitment why can't in a case where there is no time problem forget the delays and so forth but like this one of the plans to the lawyer i mean if it was five hundred thousand dollars and the lawyer received two hundred thousand he certainly received it with notice it's not any kind of good faith purchaser why can't they get it back from him i think there may be situations in which the end of the day i mean do you mean that that the the fund can get back not only what the beneficiary receives but also what he has paid his  lawyer no i just mean that that if the funds are in the lawyers possession the lawyers the agent of the of the beneficiary i think in that situation equity would permit the plaintiff the lien holder to trace that that mean amount to get to get the whole  do what i think that has to be or nobody you take these cases that we create i don't i don't i don't think this situation has come up very much but i don't see why it would be there is a fund the fund belongs to person lawyer knows it belongs to person x nonetheless the lawyer takes two hundred thousand dollars out of the money that belongs to person x and gives three hundred thousand to the client i assume the client is more likely to spend money down than the lawyer because lawyers tend in general to have a larger bank account than poor clients so therefore i do not see why they wouldn't sue the lawyer but they aren't so there is something i didn't understand and so i am asking the question i don't think i don't think it's come up very much but i do think it's possible that in some situations plans may be able to see the lawyers i think into another it must depend on how the agreement reads i can't imagine the it wouldn't wouldn't require the beneficiary to turn over the net not the gross but the net recovery what would he receives after paying legal fees well i think a lot of these plans are going there is a dot to diamond ring books belonging to a trustee they end up being given to the cousin the lawyer has them in his safe i do not believe  no matter what the agreement between the cousin and the lawyer the lawyer can take the diamond ring that belongs to somebody else and he knows it and put it in his pocket no matter what the agree that he's not a bona fide purchaser for value in that situation but i think the plans do have many other remedies in these situations they can trace against against any third party who takes the property with notice of a lien they could monitor litigation they can intervene in these suits they can see conjunctions these are all things that the plan here did not do and just to pick up on a point that my friend was making i do think that this is a situation in which reasonable policy makers could differ there are legitimate concerns on both sides it is absolutely a judgment concern that in some cases a plan may not be able to recover even if it has diligently protect all of rights thing by saying all of those things you say the plan can do though are a lot more complicated than simply saying they should be able to recover that to which they're entitled under the agreement and when you get into we've noted before that we try to avoid complicating the procedures in this area for the simple reason that nobody has to set up one of these plans and if they don't know you know how much it's going to cost in advance and all who just say well it's not worth it and if i've got to go and file injunctions or this or that every time somebody makes a tort recovery you know i'm not going to do it i won't set up one of these plans well i think it important point your honor is that no matter how the court rules here the planets are going to have obligations and they're going to have those burdens because great west permits beneficiaries to structure their settlements to avoid paying reimbursement to the plants or because of that ever since great west plans have taken these measures and they will continue to take them even if the court rules for  concerns only the other side which you mention and which your friend also made you what are they so one concern it as he said is that that whatever rule the court announces is going to apply in the pension and disability benefit context too and in that situation the plan made making over payments to beneficiaries over a long period of time and the beneficiary may spend the money without knowing that she's going to be responsible for embarrassing it later or that it's not her money to spend in a sense and so in that situation i think a policy maker could be concerned that you know about a plan being able to go go back months or years later and get reimbursement from the beneficiary so i think you know this really question for congress but what congress could do is it could weigh that potential against the downsides of the plans the fact that since great west they have have had these obligations they have needed to diligently protect their rights and i think in the mind of cases they've been able to do so so i think those are the things that congress could weigh in looking at the policy and consequent policy concerns on either side of this and that's why i think those concerns really shouldn't drive the analysis here can i shift gears a little bit and just ask the test with that we've set up is whether a remedy is typically available and there's been some back and forth i think about what that means what does it mean i think typically available in equity meant remedies that were considered to be equitable in nature and so it certainly did not include as this court said in merton that type of merton's the type of clean up or leave such as deficiency judgments or destruction you mr chief justice it may please the court three things are undisputed first that monta neal signed a form saying quote i agreed to reimburse in full the plan from any settlement second the plan provides that such funds are quote assets of the plan decision to commit a second throng of spending the plans money himself has made him judgment proof and the answer is no for a very simple reason when a right under equity has attached and the defendant then knowingly frustrates that equitable claim it is absolutely part of equity to permit that claim this reflects the cold reality that the defendant took actions that blocked an otherwise valid claim in equity i have no idea where you think this l attached do you think it attached the fun the media the whole five hundred thousand or the amount of the five hundred thousand that ended up in his pocket or that five hundred thousand minus  anything so it's barnes says that the that the lien attaches at the moment that he is attached that he's gotten title to the thing he gets title to the thing when there's a five hundred thousand dollar settlement settlement of course that we didn't know about but that he nonetheless did it goes to the lawyer it's his money all five hundred thousand you're entitled to whatever to to a lien of one hundred twenty one thousand dollars on it and so our claim is not that we have some general remedy at law that we can get compensatory consequential recover more than that so this is the bitter with the sweet that way when you make an equitable claim like this you have to be limited by all the rules of equity so in addition to that justice sotomayor we couldn't for example try and attached assets trying to attach and file a fund and he begins to distribute it with the aid of his lawyer some of the money goes to the lawyer if that money is still there i imagine you could get it some of the lawyer goes to his bank account if in fact that bank account has not gone from the time he put it there to the time youssou below one hundred twenty one thousand you can get it indeed in if it has gone below you can still get it if there's even a penny but you can only get the penny if he has taken the hundred twenty one thousand out of it and given it to a person with knowledge for example his wife or children and it is in their bank account i guess you could get it and indeed if they have god and bought with it some tangible item that you can trace it to i guess you can get it but we could not find and in fact if you can't find any of those you could still sue him under under state fraud statutes and recover in damages that's the law and maybe you can do it even under such a remedy where it's much more mixed up in the of the sod was prepared to give you credit for in which case you have state law remedies at law now what i could not find is a case embodying the theory you are now advancing that he simply gets the damages even where he doesn't have any of the remedies that i just mentioned so first of all we're not advancing that theory justice where you cannot get we're not advancing a damages theory whatsoever all we're saying is that you can recover the value of the lien itself when someone frustrates an equitable claim that otherwise exists and we point to three different traditions and equity that permits you to do that substitutionary monetary decrees deficiency judgments and swollen assets all of those reflect the basic idea that someone should profit from their second wrong their wrong doing  look there's a you're absolutely right the general rule is that you can't recover from general assets that is absolutely right but there's an urban legend that's over that i think the braves try and spin around that rule to say that that general rule in compass is a situation when someone acts wrongfully to dissipate a fund as to which someone has a name and that circumstances justice holmes as opinion otis says he says if the complaint quote seeks the recovery of an identified fund that complaint will not fail because the fund is gone and misappropriated by the defendants rather under those circumstances the plaintiff has a right to compensation as alternative really that's not damages and it be wonderful if the side has an equitable right to compensation and i mean you know that sounds like clean up to me no it's not justice scalia i think it's not for several reasons number one is of course in that case the entire fund was gone so if it were clean up jurisdiction there had to be something to pend to there had to be some ancillary jurisdiction some equitable claim there had to be some fund that was still remaining in order for there to be something to penn to there wasn't there the is that the requirement well i think that otherwise it was some of the if their argument is right and this is something judge posner has said for example in describing this in the metron a case in order for ancillary jurisdiction to exist there has to first be a valid equitable claim and then for the convenience of the parties you can resolve a legal claim in otus there was no equitable claim under their theory which it which is you know if the fund is gone there's no lien that it's attached it's beyond it's dissipated so and then i'd also say you know it's a remarkable that they say that all of these cases are clean if there's no equitable cause of action for them one is there for you because we think that the proposition that they're trying to say is wrong the idea that when you dissipate a fund you lose your equitable claim our point is that is that's generally true not true in a circumstance when a defendant frustrates an otherwise valid so you ought to be able to bring suit in equity without asserting that the person ever had the funding to say it's well you can't do that you see he owes me the money you can't do that of course is nuts and says and that's a standard we're not here saying even if you know the person has dissipated all the funds you can sue for the equitable lien even if you know the funds are all gone correct your honor as long as that was a knowing dissipation that that's what happened and that's what the substitutionary monetary many cases sure otis itself is a case that does a justice holmes as opinion just a story has a description of other cases in his treatise arc are brief talks about the baxter case and the and that the bank of marion case these are the closest analogue to this case because they're not the general rule about can you or cover from general assets there about the specific role can you profit from your wrongdoing when an equity well lean by attachment or ethical lean by agreement as it's already attached it has to be pretty easy for you to protect yourself doesn't it as soon as it's some suitable time after the injury you do write a letter to the person and say look you need to know that if you sue somebody money is ours  and because we have these rights of some big asian or let us know if you're going to and will show up in court with you and and help you we're at sea i guess it's probably be pretty easy to monitor it yourself i mean the courts won't be computerized  just punch in mountainy only and so whenever that pops up on the docket you find out right away certainly long before the case is resolved it doesn't i mean i think your friends has has a significant point that it's actually not as hard as it might  so so three things your honor first we're not grounding argument in the policy things we do think of the policy consequences there are important but we think that if the test is what's traditionally available of equity these three specific lines of authority that we're pointing to answer that question but as to the policy concerns we think exactly as you said to my friend on the other side there are two big problems with that number one is plans don't get notice about when settlements occur in the abacus free from nasa explains most auto accidents for example  settled without any public record without any lawsuit being filed whatsoever so you can't exactly type it into westlaw or something like that so that's one problem the other is that it becomes very expensive for plants to monitor the stuff and plans are you know some  profit entity every dollar that you spend that the plant has to spend on monitoring or on writing these letters or filing lawsuits or tiaras is a dollar that is taken away from innocent plan beneficiaries people who've done right i mean that's a point we've made in our precedents but it can't and can't carry that so far that otherwise you'd say with a plan always wins right i'm certainly not trying to do that all i'm saying is that the poly the arguments here i do think are substantial and have weighed the amica before you say over a billion dollars each year  recovered through these reimbursement actions and and if you adopt their plan then as you were saying to my friend you're going to just tell client years and sense of and telling of the mountain the ills of the world spend that money right away settle the case at ten o'clock and no one spend all the money and in that circumstance then plans are out of luck in a sense beneficiaries that means are out of luck and people like mr mountainy all get a double recovery and equity is not so great all there is no tradition  equity that supports this idea as justice alito you were saying how could this make any sense it didn't make sense that equity equity has always been more flexible than that it's always recognized the idea that people shouldn't be able to profit from their wrongdoing and that rights have remedies and avoiding formalistic distinctions and speaking of formalistic distinctions the solicitor general's role is as a formalistic as it is it gets because they say you can get the remedy out of general assets as long as the lawsuit is filed trying to figure out whether particular relief is equitable relief or not i don't like that's in comprehensible to me will justice scalia's justice frankfurter said equity quotas shoes mission mechanical rules and depends on flexibility every equity treatise look at treatises that deal with this situation when someone is trying to profit from their second wrong when there's already an equitable lien by attaches and you know for example pomerantz on the flexibility interchange are saying section one eleven equity is vol the true principle of so they shot correspond both to the primary right of the injured party and to the wrong by which that right has been violated it is therefore never placed any limits on the remedies it can grant either with respect to their substance their form or their extent but as always preserve the elements of flexibility and expansiveness so that they can be modified to meet the requirements of every case and this is a well i don't know that you can read our precedents in this area to say that they are very flexible and would serve off the difference in an equitable lien for restitution an equitable lien by agreement are technical when it comes to that first question is are not good will claim in the first first instance and so knutsen for example says no because there's no possession of the fund services here there is possession therefore there is we don't quibble with any of that here is this case comes of the court everyone agrees that's a fair point i made at the outset everyone agrees there was an equitable in by agreement the only thing we're disagreeing about is whether or not by spending all the funds we've lost or remedy and with respect to that question they have general preceden the essence of great western i don't know if i'm reading it rightly or not i'll certainly be corrected by the author of the sensors i'm not but it seems to me that they're basically saying whatever remedy you have has to be an saying it's equitable isn't it just a legal claim that equity sometimes permit it and an equitable court to exercise but would it still be legal not within the state the scope of justice sotomayor this is again part of the urban legend that's different that that's being developed around this there is no case that says that he substitutionary monetary decree is a legal judgment or is ancillary to the contrary cases that were citing such as baxter and otis suggest that it is an equity not in that in indeed if there's any doubt about this i suggest that you'd have to say it's equity because the tradition for ancillary which was penned in jurisdiction was if an equity court was going to decide a legal claim they had to label it as a legal claim because of seventh amendment reasons because otherwise it might you know there's joe there's all sorts of jury trial issues that come up so that's why the tradition for clean up jurisdiction was to label those claims specifically as a first term is all very clear and equitable claim and now we're going to turn as part of our pendant jurisdiction or i'm still a little bit confused by all of this in my mind you get money when somebody gives  you and i know that a lawyer is an agent but the agent is keeping a piece of the money you can still go after the client for the piece the lawyer took so with respect to the the lawyer piece is much more complicated and this goes to justice briar's question i mean there's actually a circuit split on this question about can you go after the lawyer and the reason why you may not be able to go after the lawyers the lawyer is not a party to the underlying agreement and that's what i think the circuit says in contradistinction to others and so that's that that is not a good that's not a great remedy and of course it requires a lawyer to be on notice of the plan and all the reimbursement obligations in the like under equity justice sotomayor i think the i it is that when someone has made a valid promise to for these funds such as here mountainy all knew that he was playing with house money his knew that these weren't his money this wasn't his money it was the plans money from the start and then he goes and spends that money on other things yes you can go after his general assets to recover that spending on other things and that is something amply supported by these three different traditions in the case law those are the closest analogues to what's going on here when someone has dissipated  lawyer or is it when the beneficiary at from the head that two hundred thousand well i don't think that the answers are clear on that but i do think it's when he takes time i think the most this court has said is that it's when he takes title to the thing and presumably takes title to the thing at the moment that the check is given to the lawyers now if at that moment justice ginsburg say the bank account of the lawyer was hacked and the five hundred thousand dollars settlement was gone  general rule then kicks in and that circumstance we cannot recover the only thing we're saying is that when a defendant knowingly dissipates a fund as to which someone else has a claim it's in that circumstance that the exception is just a story called that that peculiar exception applies to try and basically make sure that he isn't profiting a second time from his wrongdoing that's why the claim is a very limited wanted equity it's just that it's in it and again it's only limited to the amount of the lien you can't go more than that you can a peanut of damages in the like and it's income or by all the defenses in equity we have to take the bitter with the sweet so latches and you know in unconscionable ety all of that would be standard which prohibits liens against social serious social security disability overpayments he says it's going to reach pension overpayments again that's not a room or rule in those in those circumstances a pension plan is overpaying beneficiary and if the beneficiary spends that well that's not something that they're knowingly dissipating that's very different than a circumstance like this in which someone is dissipating a fund as to which they someone else as to which the plan a underlying lien against and that's why it's a very limited rule it's one that tracks the tradition of common law both otis talks about misappropriation and baxter talks about wrongful dissipation when someone has a valid lien against  you and as well the or case for the swollen assets theory and the like now my friend on the other side says in his brief well then why in the world are we spending so much time on all these equity cases spending so much time on tracing and our view is very simple on that tracing makes a lot of sense in the lion's share of cases tracing becomes very important because you don't have a defendant who is acting wrongfully in knowingly dissipating a fund and so the plan or whoever the trustee is wants to  wants to go after general assets but then can't unless they can trace him to a specific asset tracing is just a lien priority dr and it's nothing more than that the restatement that my friend cites on the other side that is cited in the senate section two fifteen is clear is day it just talks about lean priority it doesn't say that there is no claim if general if if someone squad dissipates a fund it says that they are not entitled to lean priority that is it and what we've read with that we're not here trying to say we have priority over other assets over other creditors we're just simply saying we are to use the language of the restatement a general creditor you don't have priority over other creditors so if because as the interchange with justice ginsburg was suggesting it's not totally clear what was spent and what isn't but with respect to the rest yeah i mean we have to take the bitter with the sweet and that means we are general creditor out of general assets not like we get first priority over those assets which is why this remedy is at best a second best one for us i mean the ideal is of course to prevent someone from dissipating the funds altogether and we do think if this court recognized as i think most of the circuits have that we have a cause of action here that i think it would deter people from engaging in the kind of behavior that mr may just want to be clear i understand your position and your answer fund has has a claim for reimbursement from the accident proceeds acts and proceeds put in the bank of the land beneficiary of the injured the person was injured in the accident he also has another creditor yours you stand even with that credit nothing's been spent but there's a creditor and the creditors claim this is equal to the plans coming in and there's only enough money for one would have well just as kenya might i thought you would have priority i would if it sounds like we can trace that fun that is the fund hasn't been it's that's reasonable it's in the bank a great so then that's exactly right so we would have priority over that five hundred thousand dollars in that circumstance over other creditors my only point is if we're in the mountain neelix situation in which he has spent let's say spent down that entire fund and there's another creditor who also money to once that happens we are we can only recover just like the other general creditor and that's what the restatement says that's all it says it does not say that if a fund is dissipated that there is no claim anymore that would be contrary to the whole idea is just silly joe's question was about what equity is all about that makes no sense and equity is not that brittle just understand that there are traditions in equity in there are certain rules but at the end of the day there it was never that formalistic and and have the idea that someone could profit so much from their wrongdoing and frustrating and equitable claim that otherwise existed it seems mr cut you know that you are relying on remedies that really developed very late in equities life and other words you know equity was going along and that with these very formal rules distinguishing it from the legal world and then as it progressed that where people thought we need some cleanup authority or maybe even people just thought these rules aren't working in the way that we want them to work so at one we got a little bit less equitable as it approached the merger with law but that i think is not really what we meant when we've said we're looking to things that are typically equitable you know not like the last throes of that committee as it was becoming a legal system so just kagan had spot you that with respect to swollen assets you know which does come around in the one nine hundred thirty s and so maybe there's an argument there but but for example substitution monetary decrees justice holmes is opinion eight hundred ninety seven exactly the same year as barnes the chief justice is opinion that was the foundation for sarah bath and indeed it has a tradition that goes back to just the stories eight hundred twenty eight treatise which cites earlier cases even still so i don't think that we're relying on that when you take the deficient that did fissions the judgments which i take it was a rule was needed to give equity that authority because everybody thought when he didn't have that well even if you can make that argument about deficiency judgments which i'll respond to in a moment can make it about substitution or monetary decrees which is a sustained body in equity and with respect to that an eight four absolutely this court promulgated equity rule ninety two which allowed for deficiency judgments but i think the fact that they had to issue a rule doesn't somehow make it a walk lame as my friend says i mean after all rule seventy three promulgated in hundred sixty four was a rule about preliminary injunction zone and i certainly think preliminary injunctions were available in equity and you know the fact that there was a rule about it didn't somehow converted into a law claim so i think the very fact that this court issued a rule called equity rule ten is suggestive of of the fact that this is a tradition in equity now look if there's some doubt about this sufficient doubt in the traditions and they've got i don't think they have a single case but even if you thought they did that said that we were prohibited that we were prohibited from making these claims that equity i think you should err on the side of recognizing the claim why for three reasons one because as the solicitor general's brief and sara goff said the point a risk is to try and give effect to written plans and their determinations and if there's doubt into the code as to what the equity tradition is you should read it in light of trying to enforce planned terms that is the pages twenty three and twenty four their brief it is consistent with the way this  approaches for example title seven cases and the like the second is that again all we're seeking here is a remedy we're not trying to get more than what would have been otherwise available at equity or our view is that when someone frustrates and otherwise i  quibble claim we can only try and reinstate that claim you can't get more from it because they're second wrong doing so i think we're giving effect to what equity is all about and then third and this goes back to your last question to ms anders you said you know what was what was the true what does  typically available at equity mean and you know that test comes from merton's mearns isolates three examples of what was traditionally available zakk witty at equity mandamus injunction and restitution now if you look at  example there are precedents from this court making that suggests that equity that equity didn't recognize mandamus you know this court twice in the nineteenth century and heine and downs both said that and said so that twice and i think that's a good textual clue that when there's doubt as to whether something is actually pissed traditionally available in equity or not you should err on the side of recognizing it as traditionally available as this court did in the foundational merton's test were not  simply saying we're at least as strong as to whether something was traditionally available in equity as mandamus because in mandamus two cases from this court suggested it wasn't traditionally available and yet the court still in merton's use that as one of its three chief justice i just like to make two brief forms the first one is that the historical authorities are unquestionably on our side and it was interesting hearing my my friend mr cox we'll go straight to the substitutionary monetary remedy i want to say a couple things about this first if you look carefully the exact argument he's making was rejected by the holding of this court in great west this is section two c of the court's opinion it's kind of a lesser known part of the opinion  the argument was made that a beneficiary of a trust commits that second wrong that he was talking about when they get along contractually and refused to pay it back and what this court said is no that's not typically available  equity and you know it's precisely the distinction that he's trying to now push upon you to squeeze this remedy through so let's look at the substitutionary monetary decree cases he talks about not a single one of them involves an equitable l by agreement they don't involve an agreement there restitution ery cases so that's also interesting to me that he criticizes our side talking about the restatement of restitution section two fifteen whereas we talk about palmer right we talk about jones liens we talk about the person case it's an eight hundred eighty case on page thirty five of the blue brief it's an equitable lean by agreement case the historical authority here is beyond dispute and i guess the last thing i'll say on this is look at the shaffer's appeal case it's one of his lead cases on page thirty seven note six it says that substitutionary monetary relief is legal so i think if you look at the cases not that i would wish that upon anyone that they really do not even credibly support the proposition historically so where does that leave us i mean i think i was on this from minute one when i got up here the only reason that you would contort the standard that you've developed let's be honest you know spot me this you have to believe our position is fundamentally inconsistent with the purpose of if you do that i have a problem but here's where we're at mr chief justice you made a very strong policy argument about why my rule is no good with respect i think i could make a very strong policy argument about why participants who prove a clear bad faith breach by a plan should get consequential damages i could make that argument and i think it could make it very persuasively but that's not what we're here to do we're here to apply the historical test so let's end a sensually with i think a key concession that mr carville makes about the disability context so if you look at this case and you say subrogation i don't know these arguments that the plans of ways to protect themselves maybe they're right but maybe they're onerous and you know i just not sure if it's going to add to the cost of plans go look at the disability cases because i was stunned when mr coffey got up here and said oh well the disability cases are different like this doesn't extend to them he filed a cert petition with respect with this court in the bill you case which was one of the circuit split cases that's here half of the circuit split cases involve the disability context so i'll end with this what does that tell you the fact that you look at these disability cases and you see that money is being advanced and it's being spent before the lean even attaches and yet they're made part of the circuit split and in this case respondent is not willing to defend that as a policy position i think what it tells you is that fair minded people could disagree as to where you want to place the risk and so when we go and look at this and we think about it in terms of burden if there is any reasonable position as you look at this that a rule that says you can that case he somehow bound by that certainly not what i'm saying is we have a circuit split and half of the cases are subrogation and half of them are disability so the courts recognize that the legal principle in this case will not only appl cases but they'll apply in disability cases and mr colville recognizes that because he represented a party in one of those cases so my point only is don't accept the representation that the rule here can somehow be confined to because as an empirical matter it cannot oh i would be surprised by the proposition that lawyers are somehow collaterally is stopped if they take a particular position on behalf of one client from taking a different position in a different certainly that's true and i and  perhaps i've miscommunicate it we have a circuit split which led to the court granting this case and all of the cases purport to resolve the same question presented half of them are in the subrogation context half of them are in the disability context so i don't i don't see how one could credibly take the position that you can decide this case and it would not affect the minor run of disability cases because they're part of precisely the same circuit split it's the same issue thank you counsel cases submitted