judge cole may please the court you have been presented with three interpretations of the phrase employment with the control group is in voluntarily terminated in this case the plaintiff's interpretation gives full an ordinary meaning to every word in that phrase and only every word in that phrase the district court's interpretation page twenty two of its decision refers to some other job with some other company that's not only on reasonable it's nonsensical and houser bush's interpretation gives violates the m b excuse me violates the standard contractual interpretation rules by trying to subtract words that are in the phrase and adds words that aren't in the phrase because the plaintiff's interpretation of the phrase that section one thousand point eleven f is the only reasonable interpretation as a matter of law the district court's decision below must be reversed paraguay the district judge got the notion that this was some kind of unemployment compensation  provision where did that come from was that it was at the defendant's argument or did that just come out of your somewhere well i think there's two i think there's two things and one is i do think there's some of it coming came out of air i mean i don't think there's any disagreement that this is a pension plan and some of the cases that we're going to talk about here today are severance cases but that's not what's going on here this is a retirement plan case but i do think that if he got confused at all it may have been very well because of the argument that the defendants are making as we pointed out in our brief the point that they seem to be making is that job loss is the trigger but job loss isn't d issue here the issue is how many credits do these retiree's get when they retire be it whenever that age whenever that day comes and do they get  agent service credits towards that that's what we're that's fundamentally what these plaintiffs were terminated from there's no real question one of the things about this case is that there's so little that to actually in dispute in this case that everyone agrees that the plaintiffs were in the control group on the date the change in can or the date the change in control happened when in bev acquired and house or bush and everyone agrees that they weren't in the control group after the sale of these four plants to paul and everyone agrees that in section five that that change was involuntary and everyone agrees that section five point one of the plan which is determination provision was triggered which was triggered when quote employment with all members of the control group terminates for any reason unquote and so the only question in light of all those undisputed things is what does employment what the control group is in voluntarily terminated mean at section one thousand point eleven f the other thing that should not be in dispute in this case is the standard of review which is did novo initially you review the district court's decision to novo and the question that we think starts and ends this case is does section one thousand point eleven mean as a matter of law which is a to no vote review i think part of the problem here is that the argument for man house or bush and bridge and the decision of the district court sort of flips those things on its head fall did not take over anything with respect to the pension system that's correct leon and these people kept their jobs with the new employer that is true and did they get and they the next day they were day one employees with the new employer that's correct that's right what they were terminated from was the controlled group the family of eight of and house or bush companies which practically speaking for them meant they have a new employer with a different benefit plan and the credits that they were earning and the age that they were earning credits towards this pension plan were cut off why did why did the company i'm in the plans of the guy because well that gets us to the intent back in two thousand and it appears from  record that they were trying to protect the employees now they didn't intice a paper that this scenario would occur that's one that's in the record as well but what fundamentally at the time the pension plan was over funded and so there was a mix between fear than an acquirer would get the over funding aid they'd want that but they also wanted to ensure that the participants were protected that's how this provision comes along then to what were they afraid that they were going to be taken over were they afraid that a division was going to be sold i mean what what was the fear at that t pension plan was over funded it just was passed in two thousand and if you remember back that far the market was doing very well and you had the internet boom and so the pension plan had like one and a half times its assets and so i think that they were concerned about those funds being going to an acquirer and that somebody could take over the thing somebody to come in and acquire it is that it i think that was part of the i think that was part of the issue your honor i think the other part of it was and the notes read you know that are in the record reflect this from there and hauser bush's committee's interview with the person who they interviewed was that august busch the third the o at the time didn't want that money to go to anybody other than the participants let's say for them is the purpose of argument that the court were to conclude that that phrase is ambiguous that prevailing anyway because even if we could cobble together some sort of some sort of interpretation the shelby county case that we cited is a case where the court concluded this six circuit concluded that there could be an am big there could be ambiguity within the phrase that was an issue that was a subrogation provision in the health care plan the point is that you have to be presented with a reasonable interpretation and you don't have one here from the district court and you don't have one here for man house or bush and so my response directly do you judge cole is to say that shelby county tells us that just because we can create some sort of ambiguity here does not mean the plaintiffs don't win was there extraneous expensive evidence on what the parties meant when this section one point one one employer doing essentially the same work for i think the other evidence you may be thinking of is the board resolution i think it was yeah and there's the board meeting minutes to talk about this and my response to that is very simple a ris if a risk is about one thing you know i'm going to risk the lore of get these questions all the time and i try and tell people for risk is about one thing it's about plan documents it's about what the plan says and so i think at the end of the day what happened here was that in two thousand the board passed whatever it passed and it was implemented into the plan and the plan now governs and the plan says employment with the control group is in voluntarily terminated well ok but the other interpretation that they put on it is that employment with the control group is your job and so if your job isn't voluntarily terminated you get the benefits and why is that not one plausible reading it and judge white i have two responses to that and the first is that by adding the word job or position they've added those words in a way into a provision that that doesn't have them the second is you know no one is saying they're adding the word you saying what does employment what what does your employment with the control group mean it means everybody has a different employment with the control group this is your employment with the control group this is yours this is yours it means your job it and i just an added words i see them out of time i have you may thank you i think the answer to that is found in section five point one at section five point one that is determination provision and there is no dispute in this case when determination provision says employment with all members of the control group terminates for any reason that happened and they got also when the record benefit statements after they were terminated from the control group that say the date of terminations from employment was nine thirty zero nine and so this notion that being terminated from the control group means something different in one thousand eleven f then it means it five one or that is commonly understood in the cases that we've cited like international paper and bending house in the other cases that have that specific language in it i don't think it is reasonable as a matter of law good afternoon to please the court i'm a crane representing the plan and i would like to start with one to one area of disagreement with the court's permission and that is the standard overview because i didn't think that there was a dispute that the plan documents here give discretion to the administrator in the planning committee to exercise discretion to interpret the plan and to decide benefits and in that context a wrist law is clear that the standard of review for the administrators decision in this case the appeals committee's decision is the arbitrary and capricious standard of right that we review the question of and thank you judge white and it as judge graham did in the district court we would suggest that the review be conducted the way that he conducted it which is to look at what the committee did look at the plan look to see if it was an unreasonable construction and then look to test the ambiguity point which he did and concluded that the phrase was ambiguous on its own the key phrase shall i say and also it was ambiguous in the context of the overall plan and that was his conclusion well can you look to the overall plan if the meaning of the term is clear and not ambiguous i mean i don't i'm struggling to see what's ambiguous yes about the question and i'll try to help thank you it's my privilege if you look at the change in control provision which is one thousand point one one that was adopted in two thousand and the language in their plan a specific excuse me specifically in sub part f says employment with the control group is involuntarily terminated that's what it sa if you look at a provision earlier in the plan which is three point one a which deals with service credit how long you are in the plan three point one they has language in it that  specifically says for that purpose solely for that purpose that if there is a sale of a business unit or a sale of assets and that employee is terminated in connection with that that for the purpose of his credited service that that would be considered a terminations it doesn't it does not have that language in one thousand a level nuff in the plan administrator when it looked at the plan said no wait a minute in one thousand point eleven out it says in voluntarily terminated in three point one day it specifically divides specifically addresses the circumstance that we have here with these employees and it says that for three point one they that's considered determination but it doesn't say that for nine hundred eleven up what it five point yes terminate all members of the control yes plan that are not the enhanced benefit that we're talking about in one thousand and eleven up that's exactly what judge graham found and he was correct in that interpretation so five point one deals with the sections in  eleven that are a through d i believe in one thousand and eleven d judge white deals with the a crude benefit of the employees that's whatever they did crude up to that point in time and all the employees got that benefit there's no dispute about that but five point one does not address the enhanced benefit that's in one thousand and eleven and that's why that language in any event one of the most important things we believe here is that judge graham in his review concluded there was no abuse of discretion and he said that the decision by the committee was based on a deliberate and principled reasoning process resulted in a rational decision supported by substantial evidence untainted by conflict of interest considerations that was his conclusion in a fifty page memorandum opinion and order in the course of that work in applying this most deferential standard to judge graeme conducted thorough rigorous and times of painstaking analysis of this plan and the evidence in the record to support the plan and in fact in many respects i would submit respectfully that judge graham's analysis track that of what the appeals committee did when it addressed this decision because it followed a process that considered much evidence and interpreted the plan in accordance with that outputs and i think that's important for the court run let me see if i really understand this so you're saying that these enhanced benefit do not come to retirees unless they are terminated from the control room and do manage to get another job they have to lose their job they have to get those and that's what the committee concluded and that is our position all right so this is that they lose their job with the  let me say this judge the best record evidence of that is that the plan did in fact pay out enhanced benefits to more than twelve hundred employees of an high is there bush who were fired from their jobs as a result but they didn't get any money at that point they all they got was money down the line when they when they became qualified for the retirement part no they know they got all of the accrued benefits that were in place that years of age they got all of that at that time ie i'm really totally confused now somebody is working for the control group and they are in voluntarily terminated when the sale goes through somebody showed up and paid them money they got the enhanced benefit under nine hundred eleven money that they did they put it in their pockets and walk oh i think it was optional for the employees was that they i'm sorry i think that they got either a payment lump sum or they got to hold on for pension benefit and see if it were thirty if somebody in that situation were thirty five that person maybe wouldn't have gotten their benefits but they would have got a crude years i think that's right but the point i was making judge daughtry was that were two people were actually fired from their jobs they were given the enhanced benefit by the committee by the plan administrator but it was not given to employees whose jobs were transferred to other employers to any other employers or just the person who bought in that in this case to the ball corp kept their jobs with all corporate ok so but if you didn't keep if you weren't hired by ball and you went out and started working for coors they they  wrote you a check again i believe they had the option of staying in the plan or taking a lump sum distribution ok and they could but they didn't get the enhanced benefits are they did they get if they were if they were fired they did anybody who didn't go to ball anybody who was fired from their jobs got the benefits but the ball transaction was one transaction so those people did not lose their jobs or other transactions as well where people were transferred to the success for an employer and they did not get the rewarded and the people who went to work for ball would not be rewarded this is not making sense at this point one of the questions earlier maybe this will help judge daughtry i don't have apparently i'm not helping very much but i am trying to  sometimes i'm a little slow on the up to him as well but let's let's just say this one of the questions before was what evidence is there in the record of the intent of the change in control provision and i'll answer that question now the evidence in the record is that in two thousand and way back in the year two thousand and what a difference fourteen or fifteen years makes the pension fund was indeed this is the salary employees pension fund was indeed over funded in august bush the third who was employees in the plan to get the benefits they're in but the record evidence is that although this is a pension benefit in terms of the plan that at least in that sense  both the pension committee of the board and the board of directors looked at it as almost a severance event and said we want this enhanced benefit along with these other changing control provisions to be available for people who are in the words of the pension committee of the board displaced that's what that's what the pension committee said in the in the full board resolution that's also in the record the board said we want this enhanced benefit available for people who are terminated who are involuntarily terminated as a result of a change in combat ok you know when ball took over that was the end of their involvement in the c pension plan and they were now in the ball pension plan starting from square one how is that different from the guy that went to work for coors he's no longer in the a b c pension plan he's your one in the chorus line because the guy in the in the guy going to work for coors was fired from his position today and i was a bush while the people who were working for well were not they kept their job with the transfer isn't fired he just wandered off and decided no no no no no no no this benefit notice is in voluntarily terminated involuntarily terminated but he was involuntarily terminated because the serial went through or he was involuntarily terminated because he had a job offer with ball was happening here was an overfunded pension plan that might have lured take over a hostile takeover and the best way to avoid having that huge amount of money look like the body who wanted to take over the company was to obligate it to people who would get the benefit of it in the event that something happened where there was a takeover and they were therefore terminated in voluntarily or there was maybe a sale that was they were trying to put a fence around that money so that nobody was going to be lured into trying to take them over what's wrong with that interpretation of what happened i don't dispute that interpretation the question is what benefits flowed from that and if you look at the changing control provision one thousand alleged and a through d everybody got the benefits the question is whether people got the enhanced benefits under one thousand eleven f and the record evidence shows that at the time the board adopted the resolution that the board's intent was that that enhanced benefit because everybody had gotten their accrued benefits in the plan that enhanced benefit would go to people who actually lost the job if that was their intent then they then one would have expected that they would have articulated it in a fashion that was even a little bit that would give just a little bit of a clue that that's what they meant i mean anybody reading this i would assume it means you're terminated from the control group i mean you really have to i understand that argument but i'll tell you it's one that you don't see in till someone makes it and it's not if you gave this to ten people all ten of them would say what it means that it terminated from employment with the control group you know you have to sort of come up with this idea i mean so if that's what they meant that look we're going to give this to the people that lose their jobs and don't get transferred over then you think that's what they would say terminated from who lose their job by virtue of this change of control my red lights on me i this is what the administrator determined it's what the appeals committee determined and it's what the district court determined so i don't see it is any sort of an reasonable interpretation and in fact if you look at the case law in the circuit that deals with the phrase involuntarily terminated there are plenty of cases in the circuit that say the decision by a plan administrator which requires the phrase in voluntarily terminated to require a loss of a job  a perfectly reasonable construction and i'm thinking of the blakeman case i'm thinking of and i'm also thinking of the row case by the way which which was decided under both standards the the row case first time the six circuit you addressed creates ambiguity so quick question and hopefully quick answer if we were to find no ambiguity in terms of that phrase yes that leaves we win if we win no ambiguity we win under the nov incorrectly the answer to that is in order to come to that determination you'd have to have to ignore all the record evidence about the intent of the drafters about the ambiguity in the plan documents you'd have to reconcile it with  the enhanced benefit gets paid up i think that's why i make why because i believe that that phrase means people have to have lost a job in order to get the enhanced benefit i think the fundamental problem here in this case is the fundamental problem that you just heard from counsel for and house or bush yes he thinks they didn't lose their jobs right and the issue here is did they lose their jobs with the controlled group right and they want you to look at extrinsic evidence as he first pointed out in his very first point to you and then backtrack to the plain and unambiguous language of section one thousand eleven f to try and then say what it means they intend and what they want you to do is to take arbitrary and capricious standards and look to extrinsic evidence and then decide whether or not the phrase is arbitrary or we've got it would you agree that in deciding whether to approve vision is ambiguous you can at least and should look at the four corners of the plan not necessarily just that clause but you look at the plan as a whole if you can if that is helpful because when it leads to an ambiguity then you have an ambiguity perhaps that and i don't disagree with that general point but i did not understand their argument with respect to section three point one because as sensually they are asking you to say that there's this clause in the  severance provision at three point one which isn't in section one thousand and eleven f well the problem with that argument is section five point one which is the term in nation provision which doesn't have any of the things that mr crane was talking about and no one has any doubt at all that these people were terminated under section five point one and so judge white when you look to the four corners of the entirety of the plan there is nothing inconsistent at all with plaintiff's interpretation of section one thousand and eleven f in fact it is consistent with section five point one and the section three point one problem is essentially what i was talking about  when i was up the first time they're never going to earn any more credit age credit service credit in this plan that's all the two dish you hear there's nothing in the record about people getting money and getting lump sum zz kevin jones who was thirty four on the date of terminations one of the name plaintiffs in this plan is going to have to wait a very long time until he's eligible for retirement the other three named plaintiffs have a good least five or six or ten years to go before they get that i don't know where this people got lump sums sums argument came from but it's certainly not in the record here the case law confirms that their interpretation is wrong if this phrase said in voluntarily terminated period like the meade case did that i thought i heard counsel talk about were some of the other cases that they cited we wouldn't be here that phrase standing alone may very well be ambiguous but the point of those cases is to say ok it's ambiguous because we don't know which we've been terminated from is it terminated from anything is it terminated from all positions is it terminated from the specific company that's why wolf was ambiguous that's why easterly was ambiguous that's why the mead case was ambiguous the they were terminated for the control group and they simply don't like the outcome which is why we urge you to reverse the district court's decision below and order the case back to the district court to enter judgment