this case though in complex in ways in many ways taken down to its basic parts is quite simple volves simple terms and i think can be resolved by a simple analysis and perhaps even common sense or common now also because you could before you do that could you please help me with the standing issue in this matter and and what was the injury and facts here to require discord shipment of undue profit made by a five this year you'd be the same thing if a lawyer took funds in his trust account and speculate in the commodities market and doubled it the client found out the lawyer would have to give all the profit to the clot but if the lawyer lost all that money in his speculations his client stress spawns lawyers would still have to make up the money do the crime it's simple commonsense common everyday thing when we talk about payment if our two hundred seventy five dollars home up power bill and i pay it i have two hundred seventy five dollars left and the power company has two hundred  five dollars more the fact that i'm a zero zero bank money and even have sounded the man though the bank can call it anytime does not in the relationship they didn't borrow money from her they are money under  case they acknowledged we owe you ten thousand dollars on that your house yes and we're going to set up this retained asset account here's your checkbook here's how it works when it's not a  haven't they haven't they concluded their responsibilities the department of labor would not say so in not opinion they said solely because a specific plan gave no discretion in the midlife situation but required that there was no exercise of discretion therefore no five five do shiri action in selecting that vehicle but i case say to a client i settle the case agree that in some circumstances you could use this vehicle as long as you are doing it investing their money consistent with their best interests rather than maximize your own was that source ok with the yeah i think that the first step is it was an exercise of discretion because you can read this policy it doesn't require it just an exercise which makes them if i dish year and it is subject to the debts of credit as if they put it in a separate account which they could it would not be subject to the debts of the general creditors of the insurance company but they chose not to do that so you know and this is certainly n judge wrote a fairly thorough and exhaustive opinion on the motion to dismiss dealing with the standing issues and we chose to just focus on the two issues and there are two issues the jets rookie raps like there are two issues before the court and  why there is no injury this is edmonson got everything to which he was tight she was entitled to ten thousand dollars the group policy and we spelled out the provisions of the group policy in our brief provided that lincoln could pay that  the booklet well lincoln told mrs and miss and that when she got her check book or draft book at doesn't really matter what you call it that she could write a check immediately for the full amount of her ten thousand dollars and they placed the complete unbridled discretion in her hands for how and when she wanted to be see for a month and in fact if only to go to set up a secure line account next well it's an exercise of discretion but the question is whether it's an exercise of recent discretion and which is decided by the supreme court and merely decided under section four zero six of us but there are three cases which make it very clear that once you set up a welfare benefit plan and you structure it including how you choose to pay the benefits you have to look at the actual activity that you're dealing with when so so the plan here permitted permits pressley permitted us to do what we did sure but when you say it permitted us to do isn't that and just another way of saying we ha you have to look at the particular activities not all or nothing so you have to look at the activities of this one line of cases which say that if you structure it the plan the way you structure and you give the discretion to and you give the discretion to a player to mi is what we were in this case and they exercise it consistent consistent with their lawful obligation under their plan that's not a nurse a violation now the second that's the state that's the state that you benefit in a normal what the docs routine way is a ministerial act that also does not violate of us or this this is i'm not sure you can have it both ways if this is a ministerial act isn't authority if you look at the case more you'll see this one set of authority and i've stated in my grief that it's under section four six of us and not one thousand two that says you can structure your plan the way you want as long as you appear to it and there's discretion that's fine because another line of cases that says it doesn't depend on whether you've granted the benefits or deny the benefits but where you are in a scene when all you do is you apply  and joined in by judge decided the issue and that's one answer and i'll get my second it's a moment that that answer is that if what you have is money on deposit with somebody that's functioning as a back and somebody else has the right to  te checks were drawn those funds as anybody else would in a checking account situation that that's not a plan asset and that's not governed by risk and that's what that's what this court held an opinion written by judge fischer joined in by just making the mushroom transportation is now addition to that you have the department of labor because the department of labor has the right and i'm going to cover some issues here that they've raised in their reply because i didn't have a chance to respond but the department of labor has the right to define what a plan isis because if you look at the definition of plant assets and research says as prescribed by the department of regular the department of labor which regulations and the department of labor's opinion brief which we p full in the record as a supplemental appendix is in from the faber case makes it very clear that when you set up a retained asset account it is not a planned asset and it didn't depend in when you read that if you will see it doesn't depend the second issue the plant asked a question as addressed in department of labor's opinion creep you will see that that that belief does not depend on the fact that it was mandated mandated that that th is faber get a retained asset account you will see that it's based solely on the nature of the retained asset account itself and that's because as department of labor has said this is all dependent on ordinary property ordinary notions of property rights and in fact in fact business court and the secretary of labor versus the well case a very recent case in this year this court said that when determining what a plan as it is you look at the ordinary notions of property  talks about what a plan as it is and if i may just just one issue if i may that they raised in a reply brief then in their reply brief cite the supreme court opinion in christopher and they say that christopher this is a very recent opinion by the supreme court christopher was critical critical of the department of labor filing amicus opinion piece to express its regulatory posture and that is a complete mischaracter performing the way they were before me and second of all it was flatly inconsistent with with with the regulation with the with the statute you hear here first of all and it let me just say this at the time they said this in the same opinion in the same opinion anytime she wanted to withdraw the money she could in a fact after three months she took it all out there's no dispute about that after three months she wrote the check and she took it all out complete unbridled control once it was set up it was no longer in the plan it was within her control and by the way  have this account you're no longer in a trust trust the situation you are in you are in a beneficiary turned account holder with with the insurance company and it's a creditor debtor relationship and that's what the you are in a creditor debtor relationship it's not a trust trust the relationship and it is no different than a bank the bank takes your money invest it and you know you don't know what's going on with that money the bank invest it you write a check you get your check on precisely precisely what happen here and it's not true that there's no interest in coverage there's no coverage because you have staked errancy laws that cover these up to three hundred thousand dollars of losses in these kinds of accounts so so it is not any really not different from the if they had paid the money with the department of labor's assertion the department of labor is jealous on one concept and it's a lucky case will states and that is the senate will function they want to encourage employers to have employed benefit plans the settler function particulars to welfare plans based this is you can do anything you want if you were put in your bill fit plan that all employees who stay with the company twenty years get a brand new pink cadillac and that's on the benefit plan and somebody hits twenty years and they get a brand new pink cadillac the department of labor would say fine and they're jealous because they don't want to micromanage what's put in the plan in the the creation state by the employer when a comet insurance company that you know hired to provide the benefits and the manager thing it exercise discretion but they want to encourage it and that's what they say happened in mid life should accurately and simple describe it but the governing document is the plan itself and in most cases where you've got a group policy it becomes part of the plan itself is not to speak but even given in this deference is appropriate these these gentlemen i'm in a very good will they spend their life in it and as i just mentioned they are militant about trying to preserve  lincoln's right to just do anything with people's money but the right of any employer to create what plane he wants and it's just like a court in maryland to say that if they said it will be  originally you could you have disclosure between the kariya that we've got a way to make money and it's a bargaining right and you could bargain between different carriers for the best rate for your bill or fisheries here they just do it i cases because there was no dispute they were analyzing the wisdom of the five exercise a loose lanes and they said they've got to preserve assets for the plan they can't waste plan they have to recognize that if they gave i'm not sure whether he's trying to throw that issue to this body because he i think genuinely and honestly anguished over the faber on one side and mogul on the and the lack of clear guidance from third circuit decisions he he asked does boat an argument where the bird circuit cases that i should be looking at and we've got you know such as the bricklayers and other cases frightened of others a rule clear about would have given him the answer he thought he clearly an argument in the end in his decisions that had not been answered by this court that this discretion takes on five d c duties and extend all of them and whether or not breached i think issues he has not resolved but there are other issues that we could resolve and still affirm on a different basis we hope you don't do that that she was on notice and understood you can write a check for the full mouth the second but oh she knows that and and she's in a position to make that choice the minute it comes into her hand