one reason it believed that participants cannot obtain make all monetary relief to remedy a fiduciary breach under a recess but after significant mara that's no longer true participants can obtain in essence money damages monetary compensation to remedy a fiduciary breach that's what every circuit has held following cigna including this one so we ask this court to correct that clear er vacate and remained for the district court to rest to address the remaining issues whether a produce share breach occurred and if so what the relief should actually be the defendants kind of merits arguments on the remedy issue we think really are just totally wrong following we think their only real argument here is waiver and so i'd like to go straight to that point and just say there's absolutely no way but here it is unquestionable everybody understood exactly what ms sullivan the stack he was asking for before the district court she was asking for payment of the full remaining have said no absolutely you can get what kensit actually just calls money damages under a surcharge theory so we think that the answer on the remedy issue is clear and that's the only one that this court needs to address your honor can leave the breach question for the district court in the st instance which is actually what ended up occurring alternately in kansas and guilds in the crave but of course that is the other aspect of the claim that will need to be addressed a t some point so i'd like to say just a few words about the breach issue to start at the beginning and credential agree that their fiduciary with respect to the policy and that means that they had a duty to act prudently and communicate accurately with miss ellen and i don't think just taking that baseline standard those baseline duties that one can really look at the facts here and draw any conclusion except that the rise in and prevention all failed in those duties to you're going to be liable for providing her a one million dollars bill that would be i think there would certainly be a breach there now you might in some factual circumstances have to have a discussion about correct and eleven theory i thought was that equitable stop might occur here because she plainly wanted to have sufficient life insurance that's exactly right your and by being told that you had sufficient life life insurance time after time when she was you know not really equipped to give into the it all the details of the cause of the contract of the policy she obviously for  reformation any of the three theories for the reasons we describe described in the brief kind of we think can get us there but we certainly think a stop make sense and we think that surcharge is even clearer because but for essentially the same reason she was told repeatedly she had this policy in sort of official enrollment materials that she received from from the fiduciaries themselves and then on the phone on multiple occasions and so in reliance on those recreate the drugged right is correct and tell us what in your view that means going forward well so at minimum we'd ask that you're honest correct the error with respect to the remedy issue that's the only one that the district court the only thing that i think we've only gone to sort of been we've only had all that intentional misrepresentation rise to that level well i'm not sure that that's that that's correct i think that there are a number of cases that don't necessarily involve intentional misrepresentations if they're coming from the fiduciary themselves and the state of backer and goddess cases they're talking about unintentional so just a couple of quick points about delegates so we there are two of them st what is derek got to actually stand for and nd how it would actually apply here so we don't think that it stands for this incredibly broad proposition that as long presentation in the briefs even argues for that broad of a rule because i think it be a massive departure from the way that a recent works and would in effect eliminate that independent duty to act prudently and to communicate accurately but i just want to alive that's exactly right your honor and you know that only changed once she died and it was time to pay out on the policy it's remarkable if you look at the note that the prudential employee sent saying could we please double check this to make sure that the amount is right following her death it's virtually identical to what the employees were saying internally while she was alive when she was calling to ask questions but now that it was preventions interests on the line they apparently discovered this mistake and i mean i think that just illustrates that that's kind of the opposite of how fiduciary duties are supposed to work and one more quick thing about gary got us if i may even if your honour's think in light of derek goddess that the summary plan description has to have some kind of we absolutely have that here i'd direct your honor's attention to page three hundred and forty three dollars of our appendix it's the summary plan description that horizon and credential extensively cite and quote from in the briefs and it specifically says and i'm going to quote now the plans may be amended by publication of any s p d summary of material modification and here's the important part in roman materials or other communication relating to the plans and that is exactly what we have here in rome and materials and other can you occasions relating to the plans that expressed lead tell of and she had the full policy i mean the st thing she got was a quote retirement enrollment worksheet from horizon so at minimum at bare minimum a person who had received that s p d and seen that language and had in her hand something with for eyes and stamped on the top called retirement enroll meant retiree enroll meant worksheet that said full policy would be reasonable to make a phone call to the people that the plan directs her to call and at that point and this is kind of the court teaching of of derek outis they had an obligation to defend its to make sure she got accurate  the appeal in this case does include an appeal from the part of the district where judgment denying the claim for benefits under section five a two a one b plaintiff pretty much agrees that there seems to be an abandonment of the claim for benefits under five a to a one b or that claim is not really seriously being pressed so turning to the five a to a three claim your honor i think there's a continual merging of the parties involved in this case when we're talking about the defendants caught on doctor plaintiff plaintiff's mother ms sullivan was enrolled in the plan it's conduct in mistakenly enrolling her to begin with was compound did by a doubt a entry mistake that occurred in the twenty years after ms sullivan left employment where her eighteen thousand six hundred dollars annual salary was employed did as a weekly salaries olding in an annual salary on the books of nine hundred thousand dollars so even if she had been properly enrolled she should have been ruled for eighteen thousand dollars not six hundred and seventy nine thousand dollars all that conduct all those misstatements that are alleged were by a oh i knew it all i knew it ironically enough is no longer a party in this case confirmed that it is not appealing that adverse judgment dismissing you it so in terms of you its status you it is a no one for you it was our client's was agent just like the employees who were alleged to make misstatements arising might have a malpractise action but bluntly against you and you could rd party them and if you're not out of time and that's but the cannot support a claim for breach of fiduciary duty under five a to a three unless there are ambiguity zur lack of clarity in the plan documents so we don't have any parroting what your adversaries the enrollment materials were all prepared by you it and so that would be a way to bootstrap your way around the holding in dera guidance if you can say that the you hit  ambiguous i mean that's the question if it can be amended and i'm not sure that it is it's completely well and those in roman materials by the way your honor that are in the record they enrolled her for coverage out one times pay and then they iranis sleep went on to say six hundred and seventy nine thousand dollars so where do we go with that her it's undisputed that her pay her annual compensation which is the benefit that she should have been and rolled in if she was unrolled at all should have been for eighteen thousand six hundred dollars not even meeting all these plan documents signed what about the fact that your agent or not was making representations to her that she had a certain amount of coverage which she relied on to her that i i view those alleged misstatements by you at the same way i view the alleged misstatements at issue and dear god yes there are goddess had planned documents that said if you have questions go to the benefit department and they'll go clarify things misrepresentations occurred by non fiduciary agents in the court upheld dismissal of that claim the other companion case the documents were viewed as unclear and so the misrepresentations were viewed disappear sufficient to form a basis for a finding of breach of fiduciary duty so we don't have to really go too far to figure out what happened in their guidance because we had those two results the only distinguishing feature being that the plan documents were unclear in one case where liability could go forward the plan documents were clear and unambiguous in the other case in the case was was is dispositive of this case ok thank you your honor we ask you a question about that but there are a goddess amount for a moment is it not the case and there are goddess itself and other circles have suggested the possibility that there might be a basis for equitable relief in circumstances like these not perhaps under the terms of the one of the plan itself but on the basis of other equitable principles your honor to answer obviously the starting point with that question is a mara and if you look at all the postum are decisions in this circuit they always involve situations where they were truly awarding equitable relief even though the effect might be the cause the participants get some money for example in the in the case the footlocker case the employer had changed from a defined benefit to a cash balance plan and the remedy employed to two they had actually concealed the effect of the out and the remedy was to impose a new formula that eliminated that where way resulting from the u from the conversion from a cash a defined benefit to cash a morrow the same way it was a i think the remedy alternately imposed was a plus b i think it's important to note that  did not overrule knutson it refined it a little bit it articulated some standards for determining what is equitable relief but at least in the post i'm our nd circuit cases it almost always involves class wide injunction of future conduct as opposed to what judge fears steen characterized as a rehashed claim under fifty dollars to a three which is in reality a claim for payment of money damages under five dollars a to a one  benefit bearing age which was missile of in salary at the time she went out on disability eighteen thousand six hundred dollars rounded up to the nearest one thousand which was nineteen thousand dollars reduced to a certain percentage based upon her age at the time of her death that was eleven thousand four hundred dollars in this case miss sullivans beneficiary received eleven thousand four hundred dollars so there is absolutely unequivocally no five o whatsoever that prudential somehow had some duty to come in and detect this error before she died in fact prudential was the claims is a fiduciary in this case they were the claims administrator what does that mean they come in once there is a claim a claim has to be made so in this case prudential came in and the only thing we did wrong wrong being in quotes was com realize there was a mistake and fix it that's what professional did wrong prudential had no duty to detect this error any time before that in any event definitely duty here certainly prevent did not make any intentional misrepresentation to any beneficiary or ms sullivan herself as to any changes in any plan now and i want to point out with respect to and an intentional misrepresentation which is obviously what this was and i understand i'm talking a little bit out of school because this isn't however in a state the that to impose liability on if they do sherry for an unintentional misrepresentation there has to be unclear plan document plus a misrepresentation by the agents well we did make a misrepresentation we found the misrepresentation exactly what we did and with respect to even if there was a breach of fiduciary duty i just want to point this out because i have a minute left so why not use it even if there was a breach of duty let's just say there was the enrollment as one times pay i understand the number was wrong because someone imported incorrectly back in one thousand nine hundred and four but it said says they're one times pay and in fact that's exactly what she was entitled to even factions properly enrolled i understand risings make making the argument on appeal they determine that in fact with only eight happy years of service she wasn't even entitled to be in rolled in the plan however they weren't going to take back her eleven thousand four hundred dollars so they let her keep they let the beneficiary keep it but in this particular instance the very very most she could have been entitle to under any interpretation of the plan whatsoever was eleven thousand those are fiduciary communications they say delivered in the corner in the corner and as delivered by a few it the question is what would a reasonable but reasonable beneficiary looking at those communications think she was seeing she would and i would just note that one of those communications is from prudential itself after she died that's not the st time that credential got involved they sent her a notice i believe it was december st tw and it says your policy your existing policy is going to be reduced five hundred and ninety seven thousand and one one hundred dollars so i don't think that prevention can say well we were a fiduciary but it wasn't our problem if there was a mistake they bore through sherri duty now they may say well we were relying on horizon to get that right but that's a problem between prevention and prize and that's not a problem for ms solomon or mis sold in here and just quickly on the one time pay point including it's a one time payment of six hundred and seventy nine thousand dollars that's not some kind of an ambiguous description of the plan terms and quickly on goddess even if you did think that these were somehow communications from hewitt the whole point of dairy goddess is that when you have something in the s p d in the summary plan description that could lead a beneficiary to reasonably but incorrectly think that she was entitled to the pot to what they were telling her then there's going to be liability and that's absolutely what we have here and light the language saying that enrollment materials and other communications can change the plan and one final point the idea of these remedies is not to just give the beneficiary what she's entitled to under the plan the whole point of these equitable remedies is to give the beneficiary what she was promised in the misleading communications and that's what we're asking the court to do here so for those reasons we've asked that you