good morning to me please the court i like to reserve five minutes for rebuttal very well following the supreme court's decisions in tack it in recess this breach of contract case must be resolved using ordinary principles of contract interpretation that the lower courts fail to apply this court in fletcher recognised one of those key principles to be a labor contracts general duration clause applies to health care benefits unless it contains clear affirmative language indicating to the case for you i mean i know that the defendant there conceded the issue but the court several times says that language which is virtually identical to the lifetime benefits language here  for they characterize it as follows the c v a here explicitly provides for lifetime benefits for the surviving spouses and dependents only again based on basically the same languages here and so the retirees who didn't have that same for life language cannot claim a contractual right to such benefits so what what would you have us do with that sort of thrice repeated remark and fletcher  embrace that can understand your honor the other point i would say about fletcher though is that in conceding that they made no arguments regarding the import of the durational clause on that language so you can certainly look at life time in the abstract and say well that certainly would suggest that if it was intended to survive the expiration but what fletcher says you need something more you need something that shows that there was an exemption for that language so the sprayed case your honor is a good example of a case where there was life time because what was happening in fletcher was the retirees are pointing to the spouse language to say there should be an inference of lifetime benefits for us because of this spouse language and so the court is just looking at the import of that language or just of having this sort of honor the concept i don't know why are we talking about this case that i mean i mean i'm not blaming you for that i mean i've been reading it and i mean the whole struggle in these cases is this collision between temporal language in benefits provision and the general to ration provision that just doesn't seem to fit and if there is no such collusion and fletcher or it's not even dealing with that collision i wonder why why does fletcher have anything to  well i think the point of fletcher in which it was actually referring back to was to reiterate the importance of applying to racial language to the rest of the contract that's in my view why fletcher is relevant to clear rule they did  wife regardless of what the duration of the agreement is that's exactly what this court said in cooper which you need so regardless language or something else that exempts have promise and that's again that in the spray case this court specifically in cooper that they had to have the in their case they were looking in until sixty five language but the same point right there in the abstract it could be read to extend beyond the term limited agreement and said well the reason that language is not meaningless is because it tells the parties who are receiving the benefits that as long as you maintain the eligibility criteria you during the term of the agreement you'll continue to receive the benefit and that's what the seventh circuit said in auberon gear meaning you know long as you maintain the criteria but you're still talking about up until two thousand and four that's correct well unless the contract is extended so as is plaintiff's point i mean it is certainly possible that this agreement could have been extended beyond its term it wasn't going to nine extension or the plan being rolled into a new agreement all together well since they both they operate in tandem that the agreement said this is going to expire in two thousand and four unless the parties agree to extend it i thought the argument was that  section five point one five expressly contemplates that the plan could be attached to a future agreement maybe the next you know the one that kicks in after two thousand four and so you know that that would perhaps make some sense out of guarantees it seemed by their terms go beyond that right well when you agreed to the promise you're saying before the term  this agreement and that's what section five point one says it says that we're going to provide these benefits for the duration of the agreement the agreement by its terms expires april one two thousand and four but it certainly contemplates the possibility of an extension so the fact that the language continued following the death of a retired employee for the remainder of his surviving spouses life with five point five point one your honor i want one so that the section providing benefits begins by saying that the benefits under this section will be provided for the duration of the agreement one of the benefits being provided in that section is the length section five fifteen which the with the plaintiffs rely upon so am i right that now you've agreed that the people who did become widows during the law at the time of the agreement you're continuing to provide for them without cost we waive the premiums for that population which is the only thing that's left at issue yes your honor so back in two thousand and six that in a sense that either niceness or grace or litigation strategy well actually we agreed their record shows that the company agreed to actually weigh for that population before this lawsuit was filed they went to hell with it but i'm saying that the hard line interpretation of the contract would seem to say you shouldn't have to do even that yes your honor i just wanted to use one percent let me i would have ended in two thousand and five two thousand and five let me ask you one other thing and maybe that you're going to get to this later on is because i read your argument the mighty the hardliner the top line is this thing is in two thousand and four they get nothing anybody else but then you've got these arguments about caps and about  changes and so on are those fallbacks if we don't buy the first argument or the independent they see do they get you less than the top line can you help me there is yes your honor so so i believe that our point is that when you look at the word lifetime in this contract and you try and decide what it means you have to also apply the durational clauses you also have to apply the fact that that  contract only refers to pensions as being vested you have to apply the fact that it uses the word continued in providing the benefits and it also caps these benefits for the covered individual all of those operate to both limit the agreement as well as a limited eight the idea that these benefits were without cost if that helps your honor well i'm not sure because but i ask the question is do are these other arguments fallbacks where you get something limited term limited agreements then just in the brief time i have just wanted also briefly referred to what we would call the growing class so for the population that did not become surviving spouses until after this contrary to expires we come back again to the fletcher case and again we believe that consistent with this court's decision when at one this court in fletcher recognized that whatever may be said about what was promised to individuals who tain surviving spouse status during the term of the agreement the same thing could not be said with respect to individual we did not attain that status until after the contract expired so again whatever one may say about the rights enjoyed by individuals who retired under their contract we don't believe it's reasonable to extend individuals who attain that status subsequently you think i'd just real quick do you think to overcome a general durational provision does it in your view is the  contract have to say something not only say something like life or until age seventy or something but also express lee reference specifically the durational provision is that what you think the law well i think it is otherwise for life one could say it's very itself kind of suggests expressly that the duration provision doesn't apply to this specific point in the contract well your honor i believe that this court gave some examples in cooper and sarah pheno about what language might be appropriate it seems to me that  whatever promise you have be a lifetime or until seventy there has to be some indication that they had benefit was intended to survive the expiration in the example that they gave in cooper was whichever is sooner or gardner so whether this agreement good morning i'm lisa smith class counsel here for the class of surviving spouses i want to point out initially that this class of surviving spouses is defined as the surviving spouses of the retiree's who  asked that repeatedly it's in the record it seems to be a litigation tactic i understand it and the info i mean so the sooner we talk about the merits probably the better thank you just in terms of saying some but somebody using agent tactics i mean you could talk about well that's you know we have a hard issue here yes i was simply trying to get to the point about who is being charged with not in the court had asked that in a question here there are three consistent under attack it under fletcher under cooper under gallo in all the cases that are cited in the briefs first here we have an express specific durational language for the remainder of his surviving spouses life without cost which we submit is unambiguous that means what it says the general durational clause here is limited and it is it contemplates itself that benefits could continue beyond the term of a particular to wrangle with yes i believe with respect to five point one which is in the body of the group insurance plan that merely provides that these set benefits must be provided during the term of the agreement i do not think it but most people would read it that way i don't think that when you read five point one in conjunction with five point fifteen and six point two see that when reviewing that all together and in particular here looking at the history of the one nine hundred eighty eight contract and how you arrived at this particular language but just looking within the four corners as you said of the nine hundred eighty eight agreement here  like gallo we do not have silence and to answer to the duration of these benefits so we do i understand if you have silence if it's ambiguous judge sutton and this court have told us and supr language that specific least states that contemplates that the barking party's intent is that benefits may continue beyond the terminations of this agreement that's nineteen of the i p a and i believe it's also relevant to note that in sprague we did not have a claim under the labor management relations act sprigg was a case of non collectively bargained benefits and i think it's important to note that under risk there was a plan document right in writing that sets forth with the terms or of the plan and in a unilateral issued plan document where you don't have a union you don't have any issues with respect to collective bargaining or the federal labor policy that tack it reinforces one of these provisions  and the parties decide to make this plan a part of that agreement things just continue correct if there's no vesting well wait a minute wait just i mean i've heard these terms the or if they negotiate that this plan is a part of the agreement then obviously the benefits continue per this link i wish to make a distinction between the plan in the plan document which have separate existence under both plan is made a part of a future agreement doesn't that reconcile this land were it doesn't that answer your question about nine a  saying the benefits don't automatically terminate if if the agreement terminates and the reason they don't automatically terminate is that if the parties choose to add the plan to the next agreement they continue and so so nine is holding out the possibility that indeed they attached the plan to the next agreement it's not saying that this entire point which would be the implication i think of believing that this entire point continues forever i believe it's the benefits under the plan can't continue right and i think it's an important distinction to know to whom each agreement is a pleasurable retirees who retired between the ninety in two thousand five date though their benefits are set forth and those of if they should have a surviving spouse are set forth into the one nine hundred ninety eight agreement when the u a w and caterpillar negotiate the two thousand and five agreement that setting a different set of benefits forward including the pensions which will be a pleasurable to a different group of people and may carry over benefits for certain older people as well so we think it's the uplink ability part that is also important for that if i may in cupertino judge summarize tackett with with this view that i think the plaintiffs here would win under another way of putting the tech and ordinary rules of contract interpretation is hey you have a c b s that has a time limit the norm is the obligations in the c b a in both directions and with the time limit the exception to the norm is when the c b establishes that something continues beyond to establish continues beyond you don't establish it by being ambiguous tough how factor you in that case because you know legally it seems to be no different than for life in the sense that that language obviously could extend beyond the green period but yet the they said it i agree that that language is sort of amps up this analysis but i think that this language is bunch more specific in but just to continue at that point and they added if you wanted to do that you would have added this particular way which right you know were guard lists of when the c b a spy or i mean we suggested what the specific language would be that we would be working for and i mean i'm not sure why don't we just go with that i don't see that in this case we've said what we're looking for why why wouldn't that just be the end of it well when the bargaining parties were negotiating this in one nine hundred ninety eight and in fact when the language first arose and one nine hundred ninety two we didn't have any of following the death of her returned employee for the remainder of his surviving spouses life without cost and then we also have the provision that says benefits may continue after this agreement this agreement mean the benefits in the plan may not necessarily terminate at the end of the expiration date and note if caterpillars position is that that all of these contracts and it on april fourth two thousand and four why then do we have this distinction in caterpillars own language it says it the plan doesn't automatically terminate under what circumstance in your view would it terminate when the parties well generally it's been general plan i know you think that these benefits are vast and they go on forever but nine a refers to the plan generally right yes and that doesn't automatically terminate i didn't see in your brief or at least i don't remember what circumstance you think would that is generally under labor law what what provides for termination of a specific agreement but labor law also provides that the employer is obligated to maintain the continue existing terms and conditions until there have been good faith negotiation that gets us into federal labor policy issues and that the employer cannot make unilateral employer you know implementations of change no i mean to distill it down what thing and what fact has to be present to terminate normally it's notice from the bargaining parties under the well that's that's the way that the agreement would terminate that's what nine a says about this is the way when a shutdown but nine a saying but this shutdown by notice doesn't automatically terminate the  fact what just i mean just what backed what action not policy not just distill it down to what action has to happen to terminate the plan you're first if well it gets it's unfortunately that particular phrasing of it i think can lead to a circular issue because if we have vesting right the u a w doesn't have the status to negotiate changes to past retirees a plan my best that w just these benefits oh i was simply speaking to the health care benefits are not talking about that i mean because ninety eight talks about the whole plan not just these benefits yes let's say that these benefits do graphs for life how does nine how does the whole plan ever shut down in your view given that nine a says it doesn't automatically shut down at the end of that c b s again i don't understand your the way you understand your understanding of how these provisions work together right because they're negotiated benefits there would be a negotiated there would be a notice or some sort of action under federal labor law for the benefits and in the plan itself to end ok i don't think caterpillar has a i believe that again following federal labor policy and applying these traditional principles of contract law here the specific language in this case is not cookie cutter it doesn't fit within the kinds of the types of contracts we've seen in these other cases gallo fletcher cooper accent or a i also want to know that cooper is still pending in the western district of michigan that decision was only based on a preliminary injunction decision yeah and we have yet to see what the discovery or hearing trials may lead on that your stand your point on that but you know if you read the decision what it seems the court is doing there is it says we hold six circuit hold that this green agreement does not provide lifetime benefits for life beyond the and date of the agreement itself we're holding that therefore we think the plaintiffs are not likely to prevail so it seems to be an actual holding just like any other case as to what the remit there means you read it differently well i read that it's not a decision on the merits of what the facts are in that case and i think that each of these cases has to be tied to the specific language i think in this case certainly present a case of first but i certainly would agree that with counsel's last point that you have to look at the language of these agreements but i also think you have to be mindful of what this court said in cooper and said that the we mandate of the reversal of rhys was a powerful indication that this general right so why why should we read tack it to say ok this one is and that that is itself kind of a mini durational provision which is i think their argument is sure of the interpretive point regarding was to say right hold you to apply general gration rights he didn't do it now oh no it said there's a background principle contract law that the contract and obligations and with the contract unless somebody says otherwise and they said this didn't say for life for example so this one did issue why why under you know why is this wise miss miss argument so inconsistent with tack it well if you look at it again sprague your honor this court reconcile those two concepts durational language and lifetime promises it said this court said that in that case the benefits were provided for life provided the company chose not to terminate the plan and that's what the seventh circuit said in auburn here that's what the third circuit said after  circuit and then crown cork from the eighth circuit and i'd say that the most explicit discussions of that coming in in all bring here were specifically talking about the reconciliation of lifetime language and in  case to racial language in exactly the same way that this court addressed it in sprague so i think that you know to answer the question yes lifetime certainly in some circumstances could be viewed as something more than just the knowledge ability criteria but i would say that the way it's read here is exactly how it was presented in the cases i just referred to you with respect to the expiration of the contract that was in argued below but there's there's no dispute here that the ninety eight contract in particular the provision that plane just rely upon was superseded by the two thousand and four contract so in syria pheno this court was looking at language that says this contract expires in x date or when the new contract comes into play and the reason there is a delay the did the date reference that the council refers to is that what we call the two thousand and four contract actually had an effect of dated january tenth two thousand and five which is the nature of contracts not always bucking up against one another so there really isn't any any ambiguity there goes to when the new promise went into effect asked for spread your honor this is the supreme court twice cited that case with approval so whether it's a non collectively bargained case doesn't detract from the force of the interpretation in that case regarding lifetime language at surviving and terminations language with respect to the the discussion of the time limits in these various agreements and you were think that that's on all four squares when you're talking about lifetime language it's an open ended promise and i think analytically it's no different than a sixty five language i just also wanted to address they are different right i mean if you pick  number sixty five or you just say why i mean that's the whole judge cup which is a question from tacky i mean they seem to suggest that there is something different about saying for a wife again you really mean this is going to be for white if  if you cut it at sixty five then it does make sense that maybe a few women did of an agreement six years or something that you would have numbers in there and that you wouldn't intend to give somebody a benefit fair point your hon language with only references to vesting then it necessarily becomes the overriding principle it seems that one difference between this case and tack it in reverse is that the benefit itself is provided in durational terms not true not true in packet not true in reason not true under all the yard man stuff but here here we have a benefit whose provision is provided durational terms and you know the rule about the more specific provision cover over a more general one and i think what we have to struggle with in this case is whether this is a many durational provision as to this benefit and it's whether it's if so it's more specific than even five point one you have any thoughts on that yes your honor i think again if you look at the cases i mentioned earlier all of them grapple with that same concept in and reconcile and harmonize these these provisions because that's what this other case as you mentioned yes your honor and again another example of that is this court's decisions and would first is to treat diesel there they were harmonizing for life a language with a financial cap and again the principle the operative interpretive principle is that we have to give meaning to the entire contract and so in that case they found that the four life benefit was subject to a financial cap so all of these cases are taking these concepts and harmonizing them together they're not giving pr significance on the other and i think particularly in light of cooper and fletcher interpretively the principles they lay out they're looking for an alternate date were garlow so what the benefit is whether it's open ended or has a specific da