this case was filed and little known today what we believe discovery will show is that it is p c s after all creates a separate mac which it uses to pay the retail pharmacy so for example the plan might be charged nine dollars for a generic and the retail pharmacy might only be paid two dollars for a generic drug calling both of those prices math both of them sat in the defendant's discretion and mr glanton is charged  dollars out of his own pocket as a co payment and the rest of the purchase price of the other three dollars in this scenario saves nine dollars purchase price will be paid by the plan sponsored so unjust enrichment well in the me in the time being that money has to be kept in trust for the participants and then of fisheries in the participants the beneficiaries get the financial security of knowing that those funds are going to be held in trust so that even if the three case but that was specifically work and i just as the participants feel interest in the recovery which is also been noted in other cases in addition that's not the only remedy that might befall the participants of beneficiaries that's the most straightforward remedy under five to eight two but there also is the opportunity for remedy particularly with respect to the portion that comes out of the participants on packet under five zero to a three four equal either equitable restitution or some kind of constructive trust that could be compensated to the actual participants of beneficiaries of former participants beneficiaries and that type of remedy has been approved drastically if not reduced and even in cases that were cited by the defendants acknowledge the fact that these co payments and these contributions by the plan participants are used to defray the overall cost and there's very little court an employer prospective employer would employ somebody or how much that person would be paid or compensated but we have experience upon which we can draw our to reasonably predict that with respect to pas losses is actual numbers it's actual dollars i don't know what it is standing here before you but somebody will be able to compute that on x amount of purchases this amount of money this specific rates so to speak sounds like that part of your case that you're arguing thing anyway is just a straight argument for damages you did know any we paid too much in coke and therefore we want the money that doesn't sound like an action on behalf of the plan it doesn't sound like anything else well your honor then you're going to argue why it's to look at what they're going to argue i'm just asking you what your best case is that you can actually bring a lawsuit to get back the co know i would say that we're not talking about going for the plan now we're talking about your argument that they have the right to sue to get that some part of the co pay that they may have some time to some pharmacy somewhere   good morning may it please the court my name is williams and i'm representing the united states department of labor and we particular case and i have asked that question it's very fact intensive to investigate this type of case and it requires a lot of resources to bring but because we take the position up plan at that like again we have not seen the contract in this case we do notice that there are contracts between these pharmacy benefit managers and the employers and there are all different things some individual have to have a personal stake in the outcome well as the plan participants and a plan beneficiary they do have a personal stake  state attorneys general can bring these suits on behalf of the plans well the state's attorney generals are bringing in fact the state attorney general in new york is bringing one he may be up against preemption i know the state of court my name's pollen drastic come here on behalf of advanced p c s as the court knows from the papers advanced p c s is one of the largest pharmacy benefit managers in the united states and as a pharmacy benefit manager it offers its clients variety of products and services that are designed to assist the plant sponsor in administering the program and in controlling the cost of those programs now who are the clients that vance p c s service i can tell you who they are not the services with respect to their plans that would be the typical caps in the last few years being brought on behalf of the plans and the plans have to have standing right plans the foot to  they don't allege any personal injury they do not contend for example your honor that they were denied any benefits under the plan they can see that they received the full benefits in fact if you look at page eleven of the  said they have not allege injury to do and the mile of benefits to a payment of reduced benefits inferior care and negligence or a breach of contract they've gotten their full plan benefits here that's not at issue what they're saying is that they were doing the plan beneficiaries could not have the money replaced in the plan even though they have not yet have the money out of pocket are you saying i would say under the harley case of from the circuit they would not have standing in a defined benefit plan care of the beneficiaries from now to eternity and your company has taken five hundred thousand out of it are you saying that the beneficiaries could not sue to have that put back you know if they could show that there was a threat to their benefits that their benefit the integrity of the benefit of promise of something here i question on the time by threats to their integrity i'm talking about those two million bucks there and it's in the plan and the plan is for the purpose of benefiting them and all what they know is a you took five hundred thousand dollars out of it my question has congress conferred upon them constitutionally power to sue to have the produce share we place the five hundred thousand bucks i two million bucks and i'm entitled to some kind of payment from the trust and you're the trustee of the trust when you take out half the money has effect on my payment yet you've taken out half the money and you've done wrongfully or you're investing it like a nut case you're putting it in penny stocks that haven't gone down yet but you're putting in a penny stock are you saying is that manipulation i cannot  normal trust very under normal trust theory under common law theory possibly i would have standing possibly under common law theory but that's not this case because in this case there are  they are not alleging any interest to their own interests when you're talking about a trust fund where they might have some stake in the outcome where that might affect their benefit rice that's a different case of this because and a risk as well for plans are not subject to the trust  of our motions to dismiss below two or the motion for judgment that i'm going to comply and that fifty five hundred demonstrates that there was no trust fund here these benefits are funded out of the general assets of the employer the employer pays for the benefits it's the employer's monies that's it that's at stake here and what we have here is a situation where there is simply speculative that these plaintiffs would have any benefit representative of the plant bring in the action someone who is accountable and who has legal obligations to prosecute that action in an appropriate manner if you have a situation where the natural way that makes a difference of purpose  trustee a trustee has an obligation to the participants of the beneficiaries of the plan violates that obligation for doesn't take appropriate action in prosecuting the suit it is itself subject to students violating its own duties there is accountability circuit but what i'm talking about is in case where you have a participant in the beneficiary who has no suffered no injury they have no stake in the outcome of the case  cut and where does the money go and you know your honor i don't think you would go to the plan in the case like this i don't think that's true in a case like this because these are employed benefit plans that are funded out of the general assets of the employer it's the employer's money that's at risk so i don't think it's a foregone conclusion that it would go back to the plan it would go back to the employer has borne the risk and it seems it's  would not have to have a trust for this type of plan then the question would be how is that money used and it's entirely proper for the employer to alter the trends of its benefit program it doesn't have to sweeten the honor i think the congress can get a statutory standing but i don't think you can confer a constitutional standing on parties that don't have it i think that's clear from the illusion case in a number of cases that we cite in our papers and what we   it's a representation that the employer will provide certain benefits to its employees and that in the welfare plan context arista has funding requirements for pension plans and if you have  promises were made over time congress exempted welfare plans from those funding requirements in section three or one of rest so they don't so what you have here is a essentially a contract that says under certain circumstances  answer your honor your honor but go and i'll give you a yes or no answer because unlike pension plans there are no vested benefits and welfare plans for the employer can terminate that plan as well and it goes no further money it's not it's a different type of that they would have a backup insurance that they pay for in the form of stop loss insurance to cover any catastrophic loss but that would be managing exactly what what is that what is the employer's responsibility to manage the cost of the there are plenty of would get any money back in a situation like this you ask for them or for their authority none of the cases they cited those are pension plans jaysus they were not welfare plant cases and i think what they've done is they've conceded in their papers that any redress that will injury here is just speculative the plaintiffs themselves in their brief that they don't know what to do shoes are going to do with the money they said that below and i call the court's attention to page twenty and twenty one of the department of labor for the quantum of labor confirms that it's pure speculation that any recovery would go to satisfy the interest of the participants in going to fisheries and let me  their brief it's as if the rebates and discounts are returned to the plants it is possible that the resulting cost reductions are monetary relief that the plan will benefit the participants and beneficiaries in the form of lower co payments and less restrictive formularies and possibly a more comprehensive benefit structure although the plan sponsors may take any recovered rebates and discounts and use these seeds that it would be entirely appropriate for the employer to use any recovery here to cover its benefit costs and that is just rank speculation that any benefit would float to satisfy the injuries and the only injuries they alleged that the plaintiff have alleged to their own person is that their benefit plan wasn't better that the doctor bills were too high or the co payments were too high and they're saying that maybe if there's a recovery  plan sponsor the employer who is not here will take action to change those benefit programs in their favor and you know if you are getting into heard today that supplants foster function not covered by research in your view when they get this humongous recovery against your client and it comes back and the employers fallen on hard times can you take that money and say use it to pay off debts to other suppliers never mind never mind the planet all display we paid money in the first place we got it back we're going to use it to pay off our debt to general motors your honor if it goes back and you don't want to it's i think they could do that ok we and i'm not going to fund any more money i'm not going to fund these benefits the money is there we have this recovery as jessica's in space that heredity we don't have a funding obligation for a period of time we'll run it out we're not going to make their benefit program any better that it was before that's perfectly and so it's that five hundred thousand that we believe should be returned to the plan we believe that that should be held in trust and i would note that twenty nine us feel love no three refers to employee benefit plans and it's not limited to pension plans and the patel cookies decided by the ninth circuit for example down these pipes of violations with plan assets and that was a health plan and welfare benefit plan situation not a pension plan situation that's two sixty two s thirty eight ninety seven your honor asked about the best cases for distribution back to the participants and that's particularly relevant in this matters case with respect to mr glanton and the alcohol point under four o nine a enforced by section five hundred two a tool there is a right of the planner on behalf of the planets representative of the i believe that eleven of the statute cited twenty nine us c eleven zero three eight and c one which applies to all employee benefit plans which include welfare plans as well as pension plans requires that once the plan assets are segregated once there are planned assets because the money has been segregated to pay for the benefits that that money will never the benefit of the plan sponsor and in the meantime are giving financial integrity to the plan which is of a benefit to the participants of beneficiaries as recognized in the us and the  i'm not sure your honor but i think it might just come down to human nature in the sense that you're going to have somebody realistically who's in the benefits department of whole who wants to get promoted and that person was given responsibility of dealing with would think would happen would be one of two things either they would feel uncomfortable suddenly just with me and they would hatfield the necessity to make sure that they had a valid release to get the point be sure to sign off on it who are by accepting the money the plants be would basically have any quarter satisfaction situation at least for the race that was in dispute ok thank you thank you very much stronger case case just argu