read elements are three aspects to the appeal that i wanted to talk about the first one is of course the age discrimination the second one is the what they did with the accrued benefits under the plan and the third one  on september the fourth everything the judge murphy identifies as being wrong with a cash balance plan for i b m is applicable here in spades my clients basically were people that were vested in the c v s defined benefit plan the traditional defined benefit plan and c b s changed the rules and put them into the cash balance plan and rather than leaving the accrued benefits which had been defined as a certain amount per month as we pointed out in the briefs they basically reduced that select they contended was the lump sum value and started everybody out with that in terms of their opening balance in terms of this of this particular a seven percent factor and we're going to conclude this is what your benefit is worth and this is what we're going to start you with basically took away what was in a crude benefit was supposed to be if you look at page one ninety five there i that's about a half truth has nothing to say players can't eliminate their pension plans they can they indeed can for the planets cancel they still have to pay let's assume he your position that they have to pretend you're there for ten years and and look at your situation ten years later or is your crude benefit whatever you've accrued as of now and of course reduced actuarially back to current values you know my my contention is crude benefit means if they projected that you've accrued seventeen hundred dollars a month in pension benefits when you're sixty five they have to pay you seven hundred dollars per month when you're sixty five you're saying and then it is it is illegal to reduce it to present value and pay out the account it's a violation of the law yes i say that's that's a violation the use case which basically is the u s supreme court case that says that the accrual means that what it means in a defined benefit plan is much the benefit i think when you retire yes and the present value that monthly benefit is that well it can be actually or can be why it depends on who calculates it to depends on the discount rate of course but let's say it's correct and you're saying that the supreme court in the other and other law that you can point to and the lump sum of that is that now you can argue about whether discount rate should be seven percent ten percent three percent two percent of course you can argue about that presuming for a moment a discount rates not wrong and you're saying you can't do that you can't do that you wanted to present value can't do that about the same thing what a crude benefit means but what does it what does happen if they terminate the plan you have to give them what well the term they can terminate the plan for the future and what do you do with the perp people who are there who are going to be eligible in ten says well but there's all kinds of reasons for not doing that you can have it's good credit as a tax payment or something like that and i b m didn't do it and c b s didn't do it instead they say we're going to take this cash balance equivalent which is basically the same as a defined contribution plan but they it's part it's a defined as a defined benefit plan and we're going to put this element into our combined plan in lieu of what we have the same thing that happened in i b m fact i b m is a is a better case for the employer than here because i b m told all the employees hey you can choose if you can stay in this in the old plant or come to the new plan it's your choice and if that choice had been made here we wouldn't be here because i would have told my clients you have no standing if you have to if you have a right and say in the old plan i don't understand how how that how we got got to make that decision freeze in  in the accrued benefit yes but how do you know what that is and if you just pay if i can define it as reduced at the present value right now ok but i think when this case when they say we're going to reduce it to present value that's a reduction when they say we're going to use seven percent well if you look at look at the x or for the record of page one ninety five which is a document that factor of seven percent which is different what the i r s uses to come to a lump sum the money to pay the seven hundred dollars a month or am i going to get the eight million dollars as a lump sum calculation of seven hundred dollars a month in ten years which i don't understand what if the employer said that the employee would be dumb if he said i won't accept it right well that's a qui sum of eight million dollars this is worth by any reasonable calculation double what seventeen hundred dollars a month is ok no i don't think so ok is there any amount that might be equal to what seventeen hundred dollars a legal no i think that's wrong judge because i think if you calculated the seventeen hundred dollars a month out from the present value based on present let's say actuarial stuff currently and didn't reduce  gave it to him that today i don't think that would be a reduction but if they bring it back to present values on the theory that that the income that introduces the new crew as it does now at least one percent if they discounted back on the theory they will change had on lease crown these people which i think risks basically conceded by this by c b s and the last aspect of the argument was the rule sixty motion which the denial of which prevented us from maybe developing some of the evidence that we could have gotten as to their motive the motivation and what they knew at the time we adopted this plan in terms of what effect it would have on various groups i asked about just murphy's opinion i gathered that his his name point was that so i just have so i think everything else is in the briefs thank you very much sensed that when as a result of making this change the accrued benefits of these planned participants will not be reduced and we see that in the introductory language to the plan as well as in plan section three  retire ok if it is lower when you retire so that the lump sum value increases you will get the higher amount and because take cash balance plan is in the fine benefit plan if they want to take that in the form of an annuity when they retire they will get it in the form of an annuity and if it was worth seventeen hundred dollars a month when they retired previously they will get seventeen hundred dollars a month ago in retirement age  percent does not turn out to be a realistic discount factor it will be adjusted it will be adjusted to reflect as the law requires to use the interest rate at the time of the distribution and if you were into there isn't vironment with the interest rates down you would arguments that were made in the court below was that there was a violation of six twenty three eight of the age discrimination in employment these are very different issues are there were a lot of issues that had to be briefed before this court and frankly we didn't address what's not clear to me is additional percentage put in the if you for if you will five argument is well if they put in money when your thirty five it has longer to to reach sixty five they put it when you're fifty five it is ten years ago i was opposed to having thirty years ago there ago it turns out to be just because just because it only had that on whatever reason now you folks say well but we're putting in anywhere from an extra half to six percent with it depending on who was picked to have percent ok we're putting in this number disagree with my interpretation that six twenty three only applies to pre normal retirement age homes are close to normal retirement age approvals even if you take that next step and say we need to measure the rate of benefit a call to make sure that's correct but we're not measuring agent has to be because of age what we're measuring there is the difference in years to pay out well that's that's and that's very interesting in this and it sounds right ok i understand that i'm writing this as i understand that argument that it's like the ninth circuit case so you've got to be keen on age for it to be a violation but that doesn't tell me why i should describe any significance credits plus the transition credits and you compare in a cash balance plan the paid credit plus the additional transitional credit and you will see that those who are older always got more couldn't through their accounts than people who are younger  treasury issued those proposed regulations they suggested that what you do is exactly that you focused on the rate of benefit accrual by measuring the pay credit because everybody gets the same interest credit and so the only issue that we're dealing with the number of years you're going to get an interest credit and you know the nature of says don't i dr stigmatizing stereotypes by assuming that somebody who is fifty isn't going to work another thirty five years or do you know that it happened and if they do if they do work another thirty five years what you find out is that that employee is as nobody will be larger than the thirty year old who waited thirty five years because by the time i reach thirty five years in the future i'll be  the fifty year old will be larger because the life expectancy of the fifty year old is small all of these alternatives for measuring the rate of benefit of cruel especially hold years to pay out it was just about in the district court i believe that is correct it was dished out and frankly i would tell you that we raised the fence under section six twenty three apps to which is that we can follow the terms of a bona fide employee benefit plan touchstone here is the showing of good cause and the good cause element requires a joining of diligence the record is quite clear that plaintiffs were not diligent in their discovery efforts and that even if that discovery dispute