thirteen thirty five zero three michael stood so versus international steel group at all oral argument as follows fifteen minutes for the plaintive fifteen minutes to be shared by the  plan they never received the plan themselves and they required employees to read and sign off on these p d s in the hammock name the employer is a plan sponsor an administrator in met life is a claims administrator unfortunately and follows the plan loses excuse me the plan uses your previous ability earnings that is your monthly baby base wage for my s g on the day before your disability starts to determine your income while you are disabled if you continue receiving l t d benefits your previous ability or earnings for purposes of the plan are increased seven percent annually on the anniversary of your previous increase and the summary plan again the only thing that mr stossel received also has a clause when added to your other sources of disability income the monthly benefit l t d plan pays you will equal sixty percent of your previous ability earnings you're pretty disciplined earings are indexed on an annual basis studies so of course read this to mean that his monthly benefits are based off of his pre disability earnings which are increased by seven percent annually and previous ability earnings equals the last base wage  two when the person became disabled counsel it really in reading those two sections of pages six six days seven and sixty eight of the of the s p d i would lean strongly in your direction but the plan itself i guess it is hard to say with what name it is i think it's only one seven which is what sets out the monthly benefits doesn't have any of that increase language it just says sixty percent of the first ten thousand of your previous ability earnings and i don't see anything in the playin that has the same kind of implications of six dash seven six dash eight so as i generally understand it there are two ways of winning under risk one is to say you win under the plan itself which i find it hard to list you can point out some other language the other is you can win because of confusion between the two so are you claiming only under the second or do you have kids or anything else in the plan that would give you any comfort to be to be honest we're climbing primarily under the second that there speedy is pretty clear but the plan that you referenced your honor doesn't really state what the difference what the after lease state it states here that seventeen which is the place you would look to get your benefits that gives you any comfort because that other argument will we can get to that but it's the indexing doesn't work to reduce the benefits it just works to explain how sometimes they can be reduced in fact it helps you over there but let's talk about the confusion between the two if you're claiming under that which is section what five zero three  oh i think it also affects i do serious claims as well as just ranch is written about in one of her opinions the reliance can be actual harm it's not a detrimental reliance as if they see something specifically and do something as a result of that it's actual harm and what what the supreme court said very clearly in the merck a sense that actual harm may sometimes consist of detrimental reliance but it might also come from the loss of a right protected by  or it's trust law antecedents in the present case it is not difficult to imagine how the failure to provide proper summary information in violation of the statute injured employees in it even if they did not themselves act in reliance on summary documents which they might not themselves a scene for they may have thought fellow employees or informal workplace discussion would have let them know if say plan changes what pit what page are you quoting from in america guys i've got it in the in there yes judge mary are you saying that the plan itself as distinguished from the s p d the summary says nothing whatsoever about the seven percent increase and so there's nothing in my in the plame self that would support the new that the s p d takes you know what you're saying i know your honor the plan is generally fairly vague but there is a section of the plan that does mention the seven percent increase judge boggs brought up the issue as to what the plan says is clearly not as specific as that if you did in itself was the plan itself says edition of indexed pre disability right is just indexed pre decimal of the earnings means you're predictable the earnings increased by seven percent the first increase will take place on  the thirteenth the monthly benefit payment is payable seven increases will take place on each anniversary service subsequent increases will take place on each anniversary of the first increase you must have been continually receiving monthly benefits under the plan is much more clear and is talking about increases in the monthly benefit connecting it with this indexing and of course you know that the issue here and i have the same plan provision is the plans never provided to the employees but the s p d but you've got to add one more case that i don't know exactly what it means but it's arguable that manged forget the s p d but i don't really understand how that's possible i don't think that the case stands for that because of the statute which requires as petey's to be provided to employees and it requires them to be for be provided in a clear manner that's accurate and doesn't misinformed employees of any of their rights or obligations what exactly do you say about the argument that on the other side that this this plan in some way talking only about a decrease in monthly benefit that's a minor thing they've got to fall argument that we can say what the plan means because we've got discretion to do that and we say you're wrong about it secondly they say as i understand it that the plan itself and the s p d are only talking about a decrease and i don't understand that but i could say a lot about it but but bottom line number one what they're saying about the plan doesn't affect the misrepresentations in the s p d but what they're saying about the plan and that it it actually decreases rather than increases disability benefits they get to that by extrapolation they're never clear in stating to the employees or really in the plan itself they're pretty disability or earnings like their arguments are now or actually decreased in a return to work situation they get to that by merging things with the the language that we've been discussing is on page twenty nine of the plain document is there any will remind me to please judge transfer if i forget any portion of your question i'll try to remember let's go with the last portion of your question first because it's what i remember best we are claiming both the oath portions of the statute your question i think that's the primary thing that we reference in terms of the plan itself the planet there's really three ways of looking at this case either the planet and the s p d are consistent in promising seven percent increases per year already there's one of our positions yes and it it's one of our positions really in light of the second way of looking at this and the third way is  really the most forceful one but the second way of looking at this is a summary plan is pretty specific about promising seven percent annual increases and that's what the walk away that an employee an ordinary reader would get from that and the plan itself is vague it's somewhat up to say and then the third way of looking at this is that the plan and the summary plan descriptions are inconsistent and that would be primarily the way i think the look at this that the plan says well pretty indexed excuse me index pre discipline pre disability earnings actually decrease monthly benefits rather than increase monthly benefits and we think that's in direct contrast to that speed but under those type of circumstances we think that the ammara principles should take hold and the fact that there is a specific statute a portion of a risk that are intended to be provided to employees and because that's the only document they see they better be written in an accurate manner that doesn't misrepresent any of the benefits that incentives if that is your primary claim and an equitable climate in the stoppel class i think yes your honor that is the primary claim because i think that's the most clear what's the most clear thing here is the the s p d which is certainly talks about increases increases and ties up these previous ability to produce ability benefits to the time your wages were right before you became disabled and then they say those wages are indexed so that's that's very clear in my eyes based on an inconsistency between the s p d and apply and not a consistency well just trying to understand the basis of your client well did the basis of our claim is really all three but that is the i think the most you're the plan itself says indexed british building earnings means you're a produce building earnings increased by december second and the rest of that language i'm not arguing how is that anything against it ok that's really their argument is that the two are inconsistent as counsel isn't and help me here pages twenty eight and twenty nine define predictable of the earnings and define indexed previous ability earnings judge merit is correct reads on twenty nine exactly what he says but page seventeen which defines the benefits does not use indexed at all it only uses the term previous of below the earnings is cert right so you have to define terms the one favorable to you is not used on page seventeen isn't that your problem to address in saying that in their consistent  would be the problem yes in saying that they're consistent but because one clause in the plan does show consistency and that clause does not necessarily show consistency it's sort of vague in my mind and so it's not i don't have anything that is index pretty decisive below the earnings two benefits in the plan itself and the s p d you got lots of good stuff yes sir that's right all right so that thank you and i see my time's up i'd like you'll have however much you and i'd actually like to start with what's the purpose of the plan because that really drives our analysis here and it says administrate of record to your benefit plan has been designed with the goal of rehabilitation and return to work in mind the plan offers financial incentives for returning to work while still receiving benefits so how does indexing really help in that circumstance how does of this guy never did go back to work that's correct your honor but indexing does come up in the disability so parts of the plan that assume a return to work don't apply in this case let me show how indexing would help him because it does help on the disability determination if i may so you pointed out judge biogs that there is actually some some benefit because it looks like indexing does go up and let me explain expand on that well well if i may respond to judge mary's point anderson i do want you to respond but understand that it may decrease in some areas it may have a been a fit in another area but that's not the question the question is what would a reasonable reader of the documents provided understand the promise is to that reasonable reader and just because it decreases over here and increases over here begs the question of what was this reader told well i'm so i don't want to interrupt your answer but i wan want you to address without spending too much time on telling us the wonderful things it does because i think that begs the question well i appreciate that your own or not and i don't know that reasonable expectations is really the right steer the standard is arbitrary and capricious pretty clear on his face as to what any reasonable reader would or would think right i don't know i don't agree with that you don't agree with it when we when we read it and pars it what part of it do you say doesn't mean that well yeah let's talk about the specific paragraph that he's talking about ok which is on sixty seven now what how does what's preceding that ok is at the beginning and you'll forgive me if you look at the previous page i mean if you're reading through this as an ordinary person right you start in the beginning what's the first thing you're told that a d r is one eighty nine six dash six you told the plan works ok so the benefit payable from the l t d plan assures that combined with other benefits you may be eligible to receive a result of your disability you'll have income equal to sixty percent of your previous bill to earnings up to a maximum disability income of six thousand dollars no that's really the definition that you see on page a or seventeen that you are referring to judge box  now read further down that same page will come to what is highlighted as a key term and this is the point part that i was trying to talk about earlier which is the definition of disability here's where you see disability earnings and index filippi earnings that's the first time that you see indexed and then you get to the part on the next page where he's talking about where the plaintiff is talking about and that comes from the two definitions in the plan a r twenty in a or twenty nine the real the problem is that number one it doesn't act as though indexed disability earnings is a term of art it doesn't have it in quotes it doesn't refer to a definition and then on six dash seven it doesn't use that same term index disability earnings as though it's a term of art it says the disability or the previous ability earnings are increased annually by a percentage that uses the word indexed but it doesn't act like it's a term of art so that's why i guess several of us are so insistent that the air bridge reader says the previous ability earnings are increased annually by a percentage on which your replacement income is based now i agree with you that the technical term indexed pre disability earnings is used to determine eligibility and it's used to determine wage replacement in a favorable way right because the more it increases the more you can earn but that's the technical term and that's why in my personal view you're good on the plan because the plan doesn't say anything about indexed in the benefit definition but that's why you're bad in my view on the s p d because that fourth paragraph tells to me any reasonable person that your earnings will be increased for the for the basis of your replacement income how do you get around that easily able let's start with  the earnings are right there wages right so according to this paragraph what are we increasing or increasing wages how much are we creating it seven percent annually for what purposes for the purposes of the plan wearie though you e rest on that a lot but that only appears in the third sentence christmas should you put a lot of on that third sentence because the second sentence doesn't have it the second sentence flatly says after you receive benefits for twelve months your previous ability earnings are increased by seven percent which means that when the third sentence a adds for purposes of the plan that doesn't look to the average reader like you know something that  flag the plan is about benefits now i get i agree when you go read the plan you don't get any comfort but when you read the s p d to me you don't you don't get a a red flag that says now this is all a bunch of hooey what what we just said in the first two sentences well your honor again i mean the for purposes of the plan to direct the reader back to the plan and she had the plan at the time when you say she had the plan at the time your statement i thought was she had the plan when she made the claim as opposed to when the worker began working or was working or suffered the injury is that the distinction you're making i can give you the precise timing but i know for sure that she had it when she did at the time that she may have been he'd already had the stroke and then i would agree with that so if there is a question of reliance or harm or something the fact that she had it later just means that they didn't hide the ball but it doesn't mean they gave it to every worker i see amount of time that a fair statement or any other questions ok so your adversary will or not your every server your colleague but i take it this is primarily just a division of labor of the interests there's no conflict of interest  below we obviously agree with the interpretation of the plan and believe that there is there is no indexing of the benefit under this plan but the focus of the claim appears to be on a theory of a stoppel and i wanted to answer for the cortico in that let me just get through saying when he was asked if he was relying on both theories he did he did and actually i will circle back to that point because i think that may be pleaded in the complaint in the m r a decision i believe it was judge biogs you asked this question of whether o'mara talked about reliance and m r talks about a whole lot of things but it says it one thirty one supreme supreme court hundred eighty one that in the context of a claim for a stop all proof of detrimental reliance is always required said accordingly when a court exercises its authority under section five  two eight three to impose a remedy equivalent to a stop at a showing of detrimental reliance must be made and then of those on and explained what it may it explains for other remedies that the court talks about in this section that there may not be a requirement of showing of detrimental reliance that it may be for example of the claim that was being brought as a claim for surcharges showing for harm is sufficient the court is clear and subsequent decisions have been clear in interpret and reading that language to say that for a stop will detrimental reliance is required if the plaintiff were bringing a different claim against against the defendants there might not be that requirement that the only claim that was completed was one for a stop but what you were opposing counsel quoted was an explanation yes let's assume you do have to have a criminal reliance but those that begs the question of what constitutes detrimental reliance and there's some discussion in the morrow of that if they're not there is not about what constitutes detrimental reliance there is a discussion about what constitutes harm following that which is a which is a requirement for proof for example the court specifically talks about surcharge as a remedy it doesn't say that that this concept the more amorphous concept of harm is sufficient to prove detrimental reliance and this court's cases if you look back at the cases of this court where were alliance has been an issue this case is nothing like those in the complaint alleges that mr steele started working i believe in two thousand and three thereafter received this summary plan description thereafter went out on disability no no act or events happened where he was looking at how many people in your company situation are covered by the plan where this could end up being an issue america faces the two questions there i don't know the answer to how common this kind of language is in the industry i will say that it has popped up in a few cases that have been cited by the parties i would defer to counsel for metlife who could probably give you statistics on how often it but it's not uncommon to have indexing used to increase the it is different than the piece of language because that language specifically talks about the benefit being increased here the s p d never makes that conclusion and i think if you read it it's as mr griffith was sort of walking the court through you read the language it never says your benefit goes up seven percent it talks about the measure that is used to determine whether you remain eligible for disability voter was talking about long term a long term disability you're saying that well how many how many of your own employees are subject to this question we think that there are in total something on the order of seven thousand folks who are in it receiving benefits under this plan obviously this number of employees who would have gotten this same s p d is probably in the thousands and it may not be because this was a this was a company that was acquired by a company that was acquired by a company in this didn't apply to everybody and doesn't apply to all current employees and this is not currently the likelihood you probably change the language and the plan now i don't know the answer to that just in this particular benefit because this is this applies to sort of a close set of individuals under the met life plan six the one that says seven percent or the inflation rate whichever is lower believe that's right sort of makes more sense than another you know seven percent increase sounded conservative when we have ten percent inflation but it's pretty darn good when we've got two percent inflation and the kind of the problem here from from your financial point of view it is and i think if we had a situation in which an interest in ensuring that the plan is applied as intended ammara case as you were reading it as your adversary was reading sounded to me as though it said ok if you're going under five o three  and you're doing equitable stop all you need detrimental reliance but then it says there may be other equitable remedies because those are the words of five o three and then it starts talking about certain things including like loss of rights under would not getting benefits that you reasonably thought you were entitled to be a loss of rights all start with the as i said before the complaint only pleads a claim for a stoppel i think that in this case there's no there's no argument that he reasonably expected these benefits because the the s p d that the plaintiff is relying on repeatedly points back to the plan and his counsel indicated this is head the plan when she was making the very argument that's at issue here so i think respectfully that that situation is not present what kind of loss of right protected by your risk then is the court talking about near the bottom of eight hundred eighty one you think well in this in the m r a cases is an example of what i think the court may have been talking about and there's a lot of argument about how much dicta th dictates dicta but the court was talking about a situation in which cigna had misrepresented the pension benefits and said these benefits in this conversion that we're going through are much better than they really were in the record by the time i got to the supreme court that that had simply not been true and i think that doesn't the s p d at least in the interpretation some of us are giving it a miss represent the plan and at least again in my view the plan is completely on your side with the s p d misrepresents it because of the language we've been talking about what can we respectfully disagree with that in and i think believe the plan is very s p d is very clear when it is talking about the indexing the effect that it is not on the benefit but it's on the total amount to understand those are getting killed at least for the legal point of view if you give me that that's a misrepresentation then does that fit into the window that america seems to open or do you have some argument as to why even that doesn't get in well i think there are a couple of arguments one that this six circuits cases which the supreme court studiously did not disturb the underlying case law in these ecuador mts require knowing this representation there's been no evidence or allegation of that the only evidence in the record s is the plan in the s p d and the communications about the claim which indicate that arcelor middle into knew and believe that the plan did not provide indexing and there's a requirement of detrimental reliance to have any recovery planet repeatedly points to the plan advise people look at the plans as the plan controls and it never says what it has been represented as saying it never says the benefit increases by seven percent so we don't think you get the what the seven percent does that's not accurate so i thought your position was that the only thing the indexed pretty pretty disability alteration impacts other than  the introductory wind with that in the plan is that it is used to decrease benefit because if you go to bring people back to the workforce and so you decrease the benefits in relationship to this in the way that that has been suggested by the plaintiff here the what what the plan would otherwise do without this indexed earnings provision is if somebody makes any money will disabled it would simply offset that and shrink the benefits this provision increases the comparison point that predicts previous ability in the index previous ability earnings go up so that the shrinkage is not as much if they work to encourage and it is used in a reduction section but the index seen makes that reduction less than it twist around i think the purpose of this plan to make it meet some sort of return to work situation and i really think that and i think an average reader of the s p d would say the purposes of the plan is purely to provide an employee with replacement income if they can't work now an ancillary purpose and an admirable purpose is to see if you can get that employee back to work but it just doesn't fit in this situation so for purposes of the plan and this is where the district court erred really to get into that and attach any significance to that somewhat innocuous phrase really is to provide replaced more that is a disability plan yes that's what it overall description and i think that's the walk away you know if you become disabled you're going to get replacement income yesterday and you're when you started talking about the overall purpose of the plan by the time this was done in zero five zero six you know we're running inflation at two or three percent so why would a company promise to give you seven percent increase forever which may be ten twenty  mean in a practical way i guess that's my concern and i think the language is good but i think it was written in the s p d was written kind of stupidly to to appear to promise something that would be no reason for the company to promise or from their point of view i think it was written stupidly because i mean the pipe i checked checked talks about seven percent or more cost of living whichever is less so that makes a certain amount of sense seven percent forever doesn't make any sense doesn't have to because of the industry and the prevalence of unions and seven percent and perhaps with goods it is historical but it's interesting too that they talk about seven percent being too high because of inflationary issues but yet they still want to apply that seven percent increase which actually as a decrease to a return to work situation and then there's shrinkage likely seven percent helps you that way council the bigger that is the more you can earn without any reduction that to me that that's getting nowhere but ok go ahead  exactly your every am i correct that's that's exactly correct and we played both portions of the statute the a three and a one b directly in the complaint and what do you say in the complaint under five zero three do you use the terms of equitable stoppel and do you use any other terms because your adversary seem to say ok even if we get there they only plead equitable stoppel and tomorrow's going to knock them out they are do you do you have any other i'm one of the in the district court deal with all of those things in his opinion it dealt primarily with this stoppel claim which we thought was what the and then there's also the ability to reform the contract itself to make it come into conformity with what the s p d tells employees and so there's a number of ways we can get there your honor but the bottom line is there is a purpose to this clarity portion of the arista statute and the purpose is to make sure that employees are properly informed of their rights and that they're accurately informed without any misrepresentations and that simply did not occur here any other