through set off recovery in a counter claim and recovery through set off is the same thing the same thirty three thousand dollars instead of seeking a judgment against which to disco they said ok we're going to take your future valid claims your money and we're going to set off against up to thirty three thousand dollars in fact when they got to the first time we just left there was no need for a judgment they claim it was the us supreme court decision they had already set off sixteen thousand dollars the amount that they had actually paid directly to her is reimbursement and the court said you cannot recover in a judgment the seventeen thousand dollars that was paid to her doctors so h  by this overlap in the claims and fact i don't even understand what the whole basis of this secondary coverage language is that is they they are now claiming that it doesn't matter i was standing with this course that it doesn't matter how much went mr desk those employers plan would have paid if they'd paid it if they'd paid claimant they could have just said their policy you know what this is not secondary coverage if you're covered in a primary plan by your employer we are going to pay eighty percent of your co pay so could you help me just what do you want us to say the sixteen thousand dollars two things number one is they have not proven what do you want us to say the sixteen thousand dollars that they set off is mr best goes money they've got to give it back because they have not proven what they did not when they apply the subtraction provision they did not prove how much with the death goes plan would have paid they did not follow this court's mandate which was tell us how much mr death those employers plan would have paid on every single claim they have a list of the claims they didn't do it they came back and said no or give you twelve so she gets paid every cent and they can't go set off against the other seventeen thousand dollars that is the set up that they cannot exercise their right of set off because they cannot improve they haven't proven it probably cannot prove they did when they didn't have a chance exercised a set of rights under the plan so it's the same thing whether they whether they say we're going to recover because you can issue a judgment thirty three thousand dollars or we're going to cover exercising set off under the plan the same thirty three thousand dollars even though we owe you money we're going to keep sending it off until we've recovered thirty three thousand dollars the recovery is the same thing whether it's an unlawful set off or i mean that's not already been done they've they've said off sick they've they've acknowledged setting off the sixteen thousand dollars that was had been paid directly they could set up the seventeen thousand dollars depending on what this court does all right so now what do you want us to say and to home well to the district court that the district court should enter judgment for the sixteenth or the sixteen thousand dollars that was unlawfully set off by the extent to which the plan with drew sixteen thousand dollars is either appropriate or not appropriate depending on what the payment by the employer's plan would have been that's right so you're not necessarily tied sixty thousand dollars this after all is your client not their client and you have to show that the sixteen thousand dollars was in appropriately with except that it was if they want to set off as they have to show this court said they've got to show what to disclose plan would have paid that if they can't set up a dollar until they say all right mr desk your employer's plan would have paid five thousand five hundred this cla so we're going to deduct five hundred they haven't proven that they haven't shown it they haven't tried to show they were given the other two opportunities you lost this claim but you're saying that the panel decision allowed you to go back in at least for about how much of the sixteen thousand dollars they really got right on the first guess we lost the first the very first time it doesn't cost us is if you won and they are they have to give this sixteen thousand dollars back  well if the panel says that you have not proven your right to recover a dollar under your own subtraction provision then it would follow that the sixteen thousand dollars that they took from her was we can go to this record with that decision we go to this record i think it's it's going to be handed to figure out how much and i think the funding shown their evidence in their title is zero there's no expert testimony there's no testimony from from the employer's plan there's nothing to show what the plan would have paid a dollar were not paid but they're saying it doesn't matter but there's nothing song selling what the fund would have paid one dollar on any single click they haven't done it had opportunities the first time around and now the second time around they've never tried i mean times you have to come back and forth on that issue they've had ample opportunity to screw their own su requirement of bad faith in the chambliss factors i have to say requirement but it's a factor that can be considered only well it's alternative you need only show bad faith or culpability you show culpability you need not s against one party or less well let's look at this case then we have a lets look at culpability this case we have the fund did not provide the scientific basis for their decision to deny coverage they didn't even give her a copy of the expert report until after the appeal had been made they didn't apply their own definition of medical necessity which the judge forrest acknowledges in her latest decision and they didn't base the decision on the particular individual character six of the decision which resulted in your surviving dismissal and therefore getting settlement which i understand can be viewed as a favorable outcome for you but i think the judge didn't view it is one i just listed the i mean the truth is i believe we established the standard but we didn't have to because this court didn't make us but i've just laid out no so how is this not culpable they didn't they didn't set forth the scientific basis for th the arista regulations were promulgated in year two thousand and they flat out say as our brief shows that they're not entitled to two to deference that is exotic claims are deemed exhausted if they don't follow their own guidelines and so that's the part of the labor regulations established that back in two thousand and you know i'm going to so i had to come back and say you know judge don't you this is in a recent case i think we all recognize that and i have and i emphasize that because this issue of the third cause of action on the offsets raises the letter they said you violated the coordination of benefits rules of the plant as a result we have a right to recover amounts that we paid improperly by offset and with the letter was several pages of spreadsheets showing how much was due that was never appealed to the trustees we come to this court and so the district court says you didn't exhaust what's the purpose of exhaustion so that you go back and you say to the trustees these numbers are wrong you've calculated to them properly that never happens it comes here and he gets decided and as you may recall your said that regardless of exhaustion even if we assume exhaustion because it didn't say because of halo but i think that's what you are saying the claim fails on the merits what were the merits the plaintive was claiming much like he's being claimed today that you can't do it you can't figure it out that issue was decided when this court said it fails as a matter of law because what do you read us as having done when we issued to desk one let me get to the next part of that's exactly where i was going there is a difference between in a receipt case and offset claim which is i hate to use the term but itself help the trustees the the administrator makes a decision and there is a process to go through to contest that so that your honors and the district court for that matter doesn't sit there with one hundred ninety pages of record which we submitted describing how we can how we calculated the amount due and have to figure it out when when we filed our counter claim we filed it to attain the court to impose an equitable trust on mr that's goes assets to collect the money once again the judgment the supreme court rules in mountain alley that it's not enough to just attach those assets you have to show the specific amount that's still there when we file a counterclaim we're fine we need to show the amount that's due because we want a judgment so that we can go attach that account we can only do that if we have a liquidated amount but when we do an offset that that's an internal process that's the failure in the suit the confusion was because the original decision at that time when when judge forest granted a summary judgment we still had the counter claim and that's why it yeah it got mushed together somewhat after monton ali came out the judge decided in october of two thousand and fifteen summary judgment for the defendants mountain alley came out january first january tenth so we was drew the claim because we realize we couldn't show even if we got a liquidated amount we didn't believe that we could trace that in this mess that to claim exactly that's why when we went  w when we went back to the district court we did two things we said judge here's the proof you need an expert to figure this out you look at the plan that we got from the  we looked at their coverage this is what the fun does all the time look at our coverage their coverage figured out what we would have paid what they would have paid calculated and said it before the judge but we also pointed out that there was no case or controversy at that time why was in a place a controversy because the counter claim that would have required the court to impose a judgment a liquidated amount was withdrawn and the plaintiffs had never appealed to the trustees to say get the wrong amount calculations are wrong that's not the amount that that would have been paid under this insurance policy from the employer the case was so intense and purposes over exactly was over even when we remember exactly anybody tell us that i'm sorry buddy tell us that well i didn't know that you we argued that yes but we did not know that the court was going to remand at that point we didn't know that until we got the court's remand order otherwise we would explained it as we have now but i didn't i did not understand i did not entitled to attorney's fees is done title two attorneys fees because all of the arguments that he's made thus far about they didn't do this they didn't do that they didn't enter first second is not the default position in a risk cases that unless there's some problem attorney's fees are would have to encourage this kind of litigation is that true i think that's true with title seven actions i don't i think with the rest of two especially with  well and people vindicate their rights there were no rights vindicated here and i can explain why they were in the right indicated here there were five causes of action for were dismissed outright at the district court actually all five were dismissed on the first go around actually met mrs to tesco got many more services for her illness for her condition because of two causes of action that were appealed one was a first cause of action over taining the benefit of the treatment the third cause of action was the one on the offset with respect to the first third cause of action and went back down the judge ordered nothing the first cause of action dismissed because she got the services aren't they dismissed because she got because you gave her the service now that she was asking for the first cause of when when the case was remanded on the first cause of action there were two parts to that one was a claim it was half of the first cause of action one was a claim of the right to continue treatment with her treating psychiatrist the district court reaffirmed her decision now under the nouveau standard firmed her decision and dismissed that claim to no right to continue treatment the way she wanted she continued to receive treatment which she was supposed to recertify that was part of the dispute the other issue dealt with the social worker what was at issue at that point were what we computer was about ten thousand dollars worth of services years from two thousand and fourteen we said ok we have to bring our psychiatrist in the judge didn't rule against it she said they're going to be dueling experts here we'll have to bring our psychiatrist in we looked at ten thousand dollars i we said let's settle the hate are we well know well that you got the services didn't she she had gotten the services before but now we we said ok will reimburse the service provider and or her ten thousand dollars thank you didn't achieve and this was a settlement was settlement yes it was a settlement your honor but she was she got more services because she brought this law t well your honor if we're going i suppose part of the argument that we rendered is we could have gone to trial and we might very well have won it was ten thousand dollars are we being punished now because we settled claim rather than punished you being caught is because when i said didn't she get more services you looked me in the eye and said no when you just admit that she did and he didn't get future services or he got she got a fine for future so well as as she could always apply for to get those future services there's nothing that prevents any beneficiary from applying seeking those services but we said ok we'll give you those services  got paid for services that originally you were not willing to pay for is that correct that's correct that would satisfy the heart part of the test that is a degree the next issue is well we were we culpable the judge hell we have to be culpable for him to get fees no but the but as you have to be culpable that's correct here i did violate the rules otherwise we wouldn't be here at the time at the time we made the decision we didn't violate any rules it was hey you know after the fact that resulted in the case being set down we got summary judgment below under the existing rules at the time that we made the summary judgment motion it was after that that the rules were changed so the call is culpable because all you're going of looking at is that after halo we understood that the rules were wrong not that they were true well but at the said no she was the judge that's the good news about us having here she was shit i don't know what's good for me she was the judge who saw what was happening and the question is is this  deciding whether to exercise its discretion to award them the court can consider various factors including the degree of culpability the degree of bad faith judge force thought those w judge forrest identifies these factors and concludes that in the end she's not going to exercise her discretion to award them and is there error in how she reached back pollution that's you're saying no i'm saying no it was not not just ara but this court has said many times it's an abuse of discretion she used the right standard heart and chambliss the facts upon which she relied really weren't in dispute we won all those we settled that one piece the only thing that she was basically taking the view that unless you were culpable unless you were in doubt unless these other factors were shown that the plaintiff could not be covered feeds and your response to that argument is one i don't think that's what church forrest did i think what she did issue a plot she looked at the five standards she looked at the ones that that and her applying the facts of this case  those standards determined that the most important ones did not support a claim for the plaintiff they tipped in our favor and the other ones that she didn't talk about didn't tip always concerned about deeply the risk you know the answer and we did argue this the answer your honor says that this is an insured claim so the insurance company will be paying the fees however our insurance rates for the subtraction provision applies the plan applies whether they're seeking a judgment in a counterclaim where they're seeking a to recover through whatever the self help or right have said if they still have to apply the subtraction provision to look at the funds letter from march of two thousand and fourteen which is a four zero six first of all the letter says nothing about subtraction nothing about penalties what they say is every dollar that we paid you an overpayment then they were back i said oh wait a second we forgot to duck the twelve dollars per claim because we're going to pay eighty percent of your co pay but their position is right up front every dollar was an overpayment your adversary something else that was not i'm sorry so was was the argument you were making to was made to the trustee back at the time that  got the letter indicating what was going to be offset that's a fair question and so why ask what's the answer well this too is to ensure i guess the answer the one word answer is no with an explanation with the trustees put this issue before the court in a counterclaim so i think at that point where intitled to fight the counter claim at the same time and all the issues all are merged together casting that by making the counter claim to get to your plus in just a second but by making the counter claim they somehow waived the argument or waive the argument that it should have been made to the trustee and therefore judge forrest was wrong in saying you never argued this to the trustee and therefore you waived i think well no i think them watched twenty fourteen letter which is a for a sick suffers from some of the same problems that we had in the lack of medical necessity how is she supposed to appeal their decision when they don't provide a calculation or a basis or even cite the portion of the plan that says here's why where these were overpayments these are over payments because we subtracted what your employer's claim would have paid were applying if the traction provision from our plan and therefore this is this is our calculation if they don't provide a calculation if they don't provide a basis or any kind of explanation other then every dollar we paid you is an overpayment then what does she have to appeal from there's no the explanation is no decision was this argument the one that you've just articulated now made to the district court back at the time when you filed the first one hundred don't have the all that in front of me right now in fact they need to be re managed to the district courts of the district court can do the analysis of whether there was a basis or an adequate way for what the employer's plan would have paid they they put the same and in fact the defo the administrators affidavit that they submitted i believe the same affidavit that he submitted in the first summary judgment to it so say she had just gotten a piece of paper which said look we're subtracting twelve dollars or sixteen or whatever it is for every every claim that you're making for the use of the social worker services right what's wrong with that because that's not much as what i'm appealing this that's not right right because that's because if you read the subtraction provision they have to subtract what the fuck what her employer's plan would have paid they were not employees plan wasn't paying twelve thousand sixty somehow and we i understand that but the trustee for the fun from which she is receiving payment which is claiming the offset says but we're not you we're going to pay some of this but we're offsetting this per visit right she got something that said that there's no document as they had they wanted every penny they were offsetting all of it so what they gave her was a breakdown of all her claims and then showed her where paying zero in all of these claims because every amount that we paid you prior we're considering an overpayment right that's pay if if i were insured by you what would you play out pay under this plan that's why i suggested they would have needed expert on this or were taking testimony from from the from the employer's plan they didn't do it but she can see  miscalculated and is it the reason why it's hard they were there a separate plan she could have chosen that's a whole other level of confusion that's your client was found not to have done what she was supposed to have done which is go  into her employer's plan and i'm not sure i understand why you didn't have the burden to say well you know i understand that i'm at fault for that but you can't ask for the whole sixteen thousand back because they're not looking for that you are looking for part of the sixteen thousand back so it's now you show how much of that sixteen thousand you may be entitled to know where we're saying that they unlawfully took sixteen e argument that because they didn't do it right we said to you last time or they didn't follow the rules you got another bite at the they got another bite at the apple the fun had another bite at the apple t establish for the district court and ultimately for this court what the fund their subtraction vision what with the funnel her employer's plan would have paid on any particular claim that's their bird their contract and you made this claim to the district court this last time before you are one hundred percent argued that is the burden of proof is on the fund the argument that you're making to us now to the district court when you were last in front of the district court justice law yes the burden of proof is on the fund to establish the subtraction provision it's their contract they want to force the contract is their burden of proof and  that was advanced in a memorandum in a memorandum yes i will i don't have the memorandum handy but i with one hundred percent certainty will say that that we made it i could i think mr smith would acknowledge that we place the friday of this week would be can you do that i'll do it today is even better thank you thank you to just put online filing no direct online filing yes thank you thank you powers will reserve decision