sherry standards which parole time didn't show but i believe this case will that the court will find an equitable remedy for the violations including because he received the balance in me that was allocated to the participant as of the date of distribution however because the plan then automatically or do you have to sue under eleven thirty two would be no you should be paid automatically of but there's become a money judgment basically no it doesn't because just as in matthew's judgement is for a section under the plan the idea that right would be enforceable under section five of two a one b if it had to be judicially in force but there is no reason to believe that it would have to be honor mr gore's rights under the terms of the plan even if the result of an order to modify the clam records could be characterized as a money judgment that clear that in in courts of equity in the days of the divided bench this remedy payment of the loss of value in the trust property due to a breach of the judiciary duty would have been finally recognized as a beneficiary it was paid out but his interest in the plan as of the time of the participants that was not a doubt that a substantial portion of that was lost due to to your question about the prior decisions all of the decisions three of the decisions that you cited mcleod far and fast create great west and they didn't undertake the historical inquiry  distinctively in equity but not the run of the mill typical equity case well it was not available in an equity case other than a case by a beneficiary against would have been available in a case where there was a prior agreement to pay money and an equitable mean arose out of that agreement in particular that remedy would not have been available in a case such as this one arising out of an express trust so to say that a remedy must have been available in any case in equity absolutely any case that could have arisen in equity is to say that there is no remedy and we know from you say you were owed a million sex or something like that and we paid you five hundred some one thousand why didn't you sue right then and there under eleven thirty two a would be say you only give me half the money because he be  able as a result of the breach of the terms of the plan so that the account is to be valued as of the date of distribution and that occurred if you count with value as the date of distribution the date of distribution was simply injunction ordering the plant to correct its records and if you don't agree with that that's what you think we can do i do think that's one possibility i think the more typical remedy under equity would simply be ordered that the fiduciary directly pay the beneficiary the money just yes but your honor sara boff clarifies that simply because it's monetary does not mean not mean that great west looked at the all possible universe of all equable remed court my name is kim zeldin and i'm here on behalf of the pallies swap defendants i'd like to begin by pointing out what has already been pointed out by this court which is that all of the  considered that argument before for example in the case of bath which involved much more sympathetic facts yes it involved much more sympathetic facts for example in that case there was a woman who died of cancer and suit involving that claim and that i would say is a little more sympathetic than this particular case in terms of whether there is a remedy for money damages might also point out that the statute itself does allow for money damages five zero two eight two allows for money damages in claims on behalf of the plan here under five zero to a three there is no remedy for money damages  about money well ok i think that the main thing to understand there is that here we are involved with a four one k plan and individual account plan at the top partment of labor knowledge in its free the only way in that's if the if they're asking for an injunction to fix the records what's what's your objection to an injunction to go back and fix the records it would be varying in equity does not allow of an act it would be there would be no point to fixing the records the records would be fixed they would denied because there is no we could not pay the money that's their problem if they lose on the second step they lose on the second step but i don't understand why they wouldn't be entitled to an injunction now that says go back and fix your records and wherever that takes in the takes of they may when they may lose if they get rained out i mean you know you just don't know we can't ask for a remedy that doesn't accomplish what you say well it remains to be seen whether it would accomplish anything or not just because you say you're not going to wait in the second step maybe they're more optimistic and you are less let me clarify if they actually if it was the case that they actually made the modification of plan records happened where would the money come from ok there are two possibilities the first one is that it would come from the plant cannot come from the plant under the law that would be a prohibited transaction the fiduciary is cannot allow the money to be coming from the administrative account that's what the department of labor pointed out a camera from each the other participants account there's no other place for it to come from so therefore the fiduciary would have to put the money in the plan with us in the charlie different argument than say they can't get a they can't get an equitable order here well the plant but the producers wouldn't put the money in the plan there's no reason that you would need to order that the producers put the money in the plant that's what i'm saying and in order for their image to be affected you have to order that you have to require the fiduciary to put the money in the plan which is why the d l l is arguing that and if you put the money in the plan that this guy was the beneficiary as of that date yes then it would be up to them to make whatever hay of that they can make and they could make a claim for benefits but we could not correct according to what they want would like this is my understanding of their argument they want to modify the records to say that there would be instead of getting the benefits and i'm saying two thousand and four that he should don't earlier you know absolutely correct your honor but that's their argument now and i actually agree with you that is not a modification of plan records you're right that's not what they're asking for they're asking for money damages just as you said so the court has in order to rule in the favor of mr gore's here you would have to contradict great west merton's you'd have to overrule macleod far and plan so that's why the benefits could the distinction is that that's why the benefits naturally flowed from the changing of the records of the reinstatement into the plan what happened in matthews is they put the people back into the plan them into the plan and then automatically the benefits flow from that in a defined benefit plan your benefit is determined by a formula it doesn't matter whether the market fluctuates up and down it doesn't matter if the plan is losing money or gaining money mandates that because the plan has to be funded then there has to be enough money to pay the benefits so it was you just get your benefits depending on your terms of service you don't get your benefits like you do in a four one k account according to how much aptly is really not a modification of plan records there's no record to be modified that's not what's happening here they're just asking for benefits on it on a different date that's not a modification of those who have asked to be reinstated i ask for a correction of the records they could they would have to reopen an account that no longer exists for him and there would be nothing in the account what would be the point of that again there's no i mean asking for a remedy that doesn't have any doesn't give you the consequences for which you see seems to me to be completely the thing it doesn't seem to have any point one of the reasons that i think that the deal is wrong about the distinction is that i think that judge reimer pointed that out but that there's a distinction in the law between a primary right and a remedial right and the supreme court focused on the remedial right not on the primary right and the supreme court looked at remedies and actually pomeroy one of the treatises that has been cited by the department of labor all damages that could have been awarded in a court of equity by for douche by beneficiaries against fiduciary is would include direct consequential and punitive damages that shows the fallacy of their argument because obviously under russell consequential and punitive damages were not recoverable with respect to their argument about what then this is limited to some kind of make whole relief and that was only available in equity against fiduciary that's just not true want and then i fell to understand why that would be in fact a remedy that is that what opal it doesn't actually get you the remedy that you sink of so you don't have to use the interpreter i was just going to say i think i'm done now thank you very much appreciate honour's we've heard a lot about legal damages here legal damages as the court wrote in great west refers to money that is awarded as reparation for injury resulting from a breach of legal duty there is say that instead of the the account being valued as of a date in two thousand and four it was that it would be valued as of a date in early two thousand whatever the district court determine those cases where the plaintiff's asking to be put in the position that they would have occupied but for the preach particularly in peralta the breach as you pointed out is the failure to notify the participant that and peralta is for the benefits under the plan that she alleges she would have had but for the breach but she wouldn't have had any benefits under the plan but for the breach it's a sympathetic claim no doubt about it but it's not one that can be remedied by putting her in the she would have occupied but for the breach because but for the breach she would have had better information she wouldn't have had a plan the plan was cancelled the same is true of other cases that this court has seen in the past for example what can be westinghouse hanford there is a misrepresentation about the amount of the benefits that are showing under the plan but but for the breach the participant would have had better information he wouldn't have had the higher benefit the same is true in peralta in bast we have requests for damages for such things as emotional distress loss of consortium and so forth while those are very sympathetic claims it's not clear that those are