prior to the lawsuit i go to a three is in some ways a broader provision it it allows any equitable appropriate equitable relief and this court as i just said in these three decisions has interpreted that well actually it's mostly there are a decision but interpreted that by reference to the trust law which clearly if you look at the risks restatement and many many trust decisions it's clear that that includes life and this is precisely the kind of situation where the trust law allowed in court and it's just freshened to award attorneys fees to make as a make whole monetary relief as make whole monetary relief and that's what we're asking for i'd also like to point out that this doesn't contradict section eleven when other words if there had been if if they had denied him benefits i mean the matter had been resolved in a lawsuit ensued and you prevailed on your argument he would have been able to recover fees is that correct for the administrative process we would not have been able to recover  established exception to the american rule is just freshen of courts acting and tries for an equity to award attorneys fees and such cases and you know a really good discussion of this is in that started edge case from the  rd circuit that i cited these awards are not just limited to common fund cases and in fact courts in equity consider all sorts of other factors including the nature and extent of that issue right wrongdoing so that's you know that's how you get around the american rule as far as the notion of the thank governs the general i don't think that that really has applicability here because you know the supreme court has repeatedly recognized that very purpose of this is appropriate aquittal relief under fifty thousand two hundred and eighty three is to remedy wrongs that are not otherwise adequately addressed in the other provisions circumstances that's a high bar met but it doesn't require perfection and as long ams claims administrators claims to do sherry's are deciding cases properly you know if it's based on the information that they have at the time there's no reason to think that that would be a fiduciary breach even though later information might prove them wrong and they may change their minds about it so i think that you know this is not going to be for another situation where there is a statute that has a subsection or a section that does not allow for the recovery of fees as she won here does and yet there's another section eight no your honor and that is not my position that you have to go that way look at verity and his aircraft case and other cases where the supreme court is the to trust principle and i want to quote from verity where the court says the trust law offers only is starting so going back to the argument that the trust principles and hamas trust her meds and the award here i've met less respectfully disagree because you can't use trust breaches reduce surely duty claims could he be covered damages for them i don't where any case that uses a surcharge remedy or the remedies under or more to award compensatory because they were no longer participants in the plan is the primary example where they used a's three to obtain benefits they otherwise would have been entitled to under the terms of the plan had t point out that there are many many post m r eight cases that have awarded compensatory damages there's mccrae b versus metropolitan life from the th circuit  company from the th circuit ken's versus dean health plan from the th circuit and there is a case whose name that the name of which i'm forgetting that better worded as compensatory damages  consequential as opposed to a compensatory damages course that's a continuum depending on how direct the the harm is many many cases a word compensatory damages that doesn't mean and opposing counsel opposing counsel characterizes your attempts in this case as an end run why isn't that an accurate description because it's not an end run around either  fact you know because we're talking about equitable relief provision and a risk i really like to end with the equities you know that life complains about the cost of paying fees and that these can be high but certainly any fees are more