one point where we have agreement i think on both sides it doesn't really provide any clear guidance to the district court about how to deal with conflicts of interest or recognize what a conflict of interest really is it's really beyond human capacity to have a level of judicial scrutiny that's calibrated from one to one hundred based upon the perceived seriousness of a conflict it's really no guidance with whoever and the courts that have adopted a sliding scale test have themselves expressed dissatisfaction with it almost things i think that if you look at more recent pronouncements by the supreme court you'll realize that the courts are focusing too much on that one word you might say they're putting too much weight on way approve or at least present evidence tending to show that conflict of interest aspect of the claim decision so the burden of showing the conflict is on the participant and of course the participant doesn't have interest and it's really started by the differences between the channel majority opinion and just progressives dissenting where basically the panel majority was willing to will probably base its decision on the administrative record but here there's a reason why you may want to go beyond the ministry of record which is that in its final denial letter all to raised a new reason for denying the respect to the dispositive question of whether or not this form was actually filed the evidence isn't going to change and even with the grand stand what's the state well we're going to do where a participant is fierce and i knew reason for denying claims and not given any opportunity to get her own evidence in rebuttal that can't be harmless error in fact the fifth circuit dealt with the same issue just ten days ago i bred standard of review if there's some problem caused either by the conflict of interest itself which of course is the test we're proposing winter brown or by that conflict of interest causing or breach  standard the court would simply decide in fact an hour was reasonable i'm assuming your hypothetical that the court has decided that this claim did i was wrong but the next step in the brown test is assuming there's no conflict of interest which there isn't in your hypothetical resources department records show that that written request was sent to home life insurance which was the insurance company at the time and then there's notations and that was done in january ninety four according to the notations and then there's a notation with therapy it became clear that he was not going to recover sufficiently to return to work it wasn't until the summer of ninety three that they were totally disabled and so the forms were sent in january ninety four there was approval from home life was received in february ninety four and then his name stays on the roster into all these nine hundred ninety seven so if you with your permission your arse i'd like to reserve the remainder of my time for rebutt first are the issues specific to this particular dispute between the plaintiff and alter all addressed those questions including the choice and application of the standard to review in this and then there is the new issue in this case raised by this court's order calling for supplemental briefing the question of whether this court should over rule out word and adopt a new methodology without having gotten reserves i mean it's looking to its own interest isn't it when it says that well the point of course your honor is that as part of this transaction alter received a was arguing that all three had suffered no prejudice as a result of that a failure to give notice and this would be an aspect of the prejudice that all to experienced as a result of dr body's failure to comply with the twelve against the insurance company attempting to prove that a waiver of premium application had been submitted notwithstanding the fact that both the clinic and the broker admitted it has not now with respect to issue that was allegedly raised in the decision at the appellate review stage of the administrative review now what's interesting about the plan of course required in order for benefits to be payable policy required proof that doctor body had remained stable totalling continuously until death that was not known to the claimant and the claimant had the information upon which all to rely this was not an instance where also made a decision based on evidence that was not in possession and not known to the plaintiff in fact the pla to us we never heard this we didn't know this was part of the case nor did he say oh we now understand this is part of it we want to stuff that the record with additional medical information neither of those things happened which undercuts the plaintiff's contention that back and get de novo review we want to supplement the record to meet this this contention so if they thought they needed to put in supplemental information they should have suggested there seems that now they are saying something they didn't say at the time would be fair to say that when the final denial came you didn't invite any supplemental information no we did not invite any additional information and they didn't offer any but now another interesting point that the majority this then we're only holding it against them because they said one thing then and they're now trying to convince you of something else now i don't think this is anything that's that this was a requirement to get coverage and knew what the record was your honor where this has arisen i'm not aware of any case where this is arisen in the administrative review  as an insurance company necessarily specifically insurance company paying benefits out of its own funds i don't see why we don't assume what's obviously to be say we grant you discretionary authority those words aren't in there what's interesting of course is that while the dispense at the panel level found a lot to criticize that wasn't one of the said it had an ambiguous lease for his discretion so obviously some insurance companies write their policies that way that if the insurance policy says crabbe or test the discretion and authority and responsibility that strikes me is different from saying the insurance company has the authority and responsibility because that means south park before the end of the express why doesn't that matter well i have to differ a little bit with your reading of jordan because we have two different plazas there one dealing with the interpretation and construction of the plan another dealing with factual to have the word discretion we're looking at weather but in summer substance the plan confers power authority discretion to make these decisions and so we use your ira if you're going it's a roster of names here but it was before the court it was before the court but it's a roster of names we don't very little about it it's in the record it's a roster of names it appears to be people who are insured and doctor of bodies and it's listed right there along with all kinds of other active employees at the medical clinic doctor a body wasn't active in one nine hundred ninety seven that roster is erroneous that roster which the depositions deposition testimony establishes that the way these rosters were prepared was that the clinic would go through a prepare roster of who's an active employee apparently the hospital must have thought doctor a good morning your honors from wal mart flips and for all to to tell before turning to the precise question as to why this should not be preferred to the atwood standard nor in fact any other pointed out at the outset of his argument that congress imposed fiduciary obligations for the benefit of participants in beneficiaries and obviously the protection of participants in beneficiaries rights was an important aspect of what congress was setting out to do however as the supreme court has reminded the courts and the parties multiple multiple times there were and plan sponsors and employers for the purposes of promoting the formation of plans and the funding of planned benefits for the courts of recognize that congress understood that without the formation of plans and the funding of the plan benefits in the first place which is entirely voluntary under federal law there would be no benefits to which a participant or beneficiary would be entitled now by plans the remainder covered by insured plans now there are a few other continuing legislative and regulatory is that as well bear upon the setting in which this court find itself in considering whether to adopt a different standard of review most importantly the department of labor in two thousand and two put in place new claims review procedures and process those are very strong stripped there there is a tightening up of what was in place previously what was in place and indeed at the time of the events in this case now those have been in place for just a few years and have not worked their way through the courts  as of yet are you arguing in some way that those are inconsistent override ground and i don't see the relevance yet no your honor i'm i'm just pointing out that since the facts in this case and since the developments in this case there are continuing developments with respect to protecting the interest of beneficiaries and participants one of which being the department of labor's rules and regulations and i don't i don't see the relevance ok perhaps a more direct relevance in circuit and in this state is recently the california department of surance has revoked its approval of disability insurance policies that provide for discretionary review of benefits claims should they be protected as if there were no built in conflict of interest well at the time a risk that was passed most planned benefits were paid through insured play hands yet at that point in  time congress did not impose such a standard and in fact we have to go to firestone to understand what standard was imposed at the time in fact at the time a risk it was passed the default standard was an arbitrary  capricious standard of review now what firestone what firestone held was that in the event however a plan was silent as to what standard of review was to be provided the default rule would henceforth be a de novo standard of review but the court was very clear however that as well the plan sponsor would be able to in the plan provide for an abuse of discretion standard now in the firestone case interestingly i think this is directly responsible to this point the department of labor argued for a de novo standard of review when ever the plan administrator had an economic interest and the department of labor asked the supreme court to consider in its ruling the alleged impartiality of the plan administrator you sound now brown was with the dictates of a recess in fact in this issue in this area which is interesting because what it comes down to is an issue of common law under a risk what the supreme court has allowed to happen is a proliferation of right or wrong based on the fact that the supreme court is not to date decided to resolve which of the standards to no other standard is appropriate if i find your comments on fifteen and i won't pretend to know what type of hint that they were dropping i don't believe they were addressing this issue clearly what the supreme court has allowed is for a financially interested  sherry and this is clearly provided for under specific provisions in a receipt that a financially interested for do sherry may wear two hats and may act under any of a risk has provisions as  obligation to act in it in accordance with plan documents for all of those produce yury breaches what standard of proof have the courts apply the traditional burden of proof is on the plaintiff who claims any of those provisions have been breached by a potentially conflicted fiduciary even that the plaintiff must prove an actual breach of those provisions and they must prove a loss that has been approximately caused by that ministry in its own policy it certainly does and that's one of the problems with brown brown has been applied to any situation in the eleventh circuit where the plan or claims  financially interested in to differ with mr feinberg with respect to how many plans that affects first of all it affects all insurance plans but let's look at the non insured plans the self funded plan well those planes have a much more direct financial conflict where the plan administrator is a member of these plant whether to pay benefits to that plan's employees the ses means and those determinations go directly to that employer's bottom line so indeed the potential conflict extreme difficulty in applying a sliding scale test however ultimately it fails to acknowledge that indeed a risk to allow those for potentially respect fails to provide meaningful standards for a court to review but ultimately the difference the critical difference between brown and atwood and why atwood is right around is wrong all three tests we're talking about be applied first of all it requires in every case the dino test the be applied and then after that it requires eleventh circuit and finally you'll see in that six part test is that ultimately end of the day the court applies sliding scale t nine now counsel has told us that that roster is mistaken that roster is the work product of home life insurance the original insurance company it's not a hospital record medical clinic record it is the insurance compan anything to me at all it shows five hundred thousand dollars worth of life insurance coverage for him or i realize that you know reading a chart of like this is a little tricky but he look at it carefully you'll see that it shows that he's got dependent coverage and that he has life insurance coverage in the face amount of five hundred thousand dollars now if the insurance company made a mistake about this could very concerned about not having received reserves on this claim that's not a fiduciary that's not the way to do sure he thinks that's the way the insurance company operating as a business thinks and so the way we should account for that inherent conflict of interest we have to affirm the district court at the last week without the brown standard or something like that no your honor our brief shows that even under the atwood test this panel the panel decision with wrong we've come forward with material communist trust if i have a financial conflict of interest it's always a conflict of interest i can't say oh it was only an apparent conflict of interest because i didn't do anything bad i can't say it's only a minor conflict of interest because i have a big business and this dollar amount isn't very substantial if i have a conflict of interest in the courts and that we will always intervene to protect the rights of beneficiaries and we're not asking for anything terribly dramatically to simply asking the courts to say to the insurance companies yes we will review your claim to make sure they were correct that's a standard of review that we've had an insurance claim for the geisha for hundreds of years we're not going to create any turmoil in the insurance industry by saying to the insurance companies that if you deny claim we just want to double check and sure you're right certainly the ground standard has been lived in the eleventh circuit now for one on close to twenty the supreme court by the way denied cert in brown so they didn't think it was a horrible mistake at the time and we haven't read anything about people in southern states being able to having insurance or people i think in southern states not having employee benefit