question is cases whether or not the plan administrator abused their discretion in concluding that mr langley fell within that exclusion there's five reasons why they answer that question is yes the plan administrator did abuse or discretion the first reason is there is simply no concrete evidence in the record that mr langley was compensated by special fees there's not a single document in the world that opposing counsel point to that says at any time prior to their seizing on that phrase in order to deny him benefits that the company ever perceived him is regard as being compensated by special fees as you know a whole market of an abuse of discretion is if there's no concrete evidence in the record to support the plan administrator decision there is no concrete evidence in the record to support the plan administrator conclusion that mr langley was compensated by special fees what does the record show about how he was  compensated the record shows that he was compensated as a normal at will employee receive normal paycheck receive bonuses the one thing that they seize on to try to argue that in fact he was com special fees is exhibit six to the record excerpts was it two thousand and six members from april two thousand and six before the plan ever existed before the howard hughes corporation bought the company he worked for and what it says your honor is that specific as to the issue here is that there's two country clubs mr langley managed at the time and says if you there are those country clubs are sold he can get up to a one percent bonus that's the word they use in the actual document itself and bonus turns out the next year one of the clubs was sold and he received the one percent payment and when they paid it to him as reflected in exhibit number seven to the record excerpt they called it the commission my point is at no time did they ever refer to the very payment that they're relying on to claim he was compensated by special fees at no time prior to his making a claim in this bonus well i mean i think we could one thing is we can go by their plain language they chose the words it's not unfair to hold them to those words especially because of this point your honor the plan this is critical the plan express addresses bonuses and commissions which is how they refer to the payment in the actual document and when they pay them and what the plan says and this is an article three point two is it says in calculating the severance amount a bonus or commission is not included in the calculation another words it does not as they allege in this case not mr langley out of coverage under the plan only together it just means if he gets a bonus or a commission docked right there they're not going to get in the base rate his his calculation of severance is based entirely on his base salary and any other compensation like a bonus or commission is not included in it and we came up with the amount of these oh two hundred fifty five thousand dollars  him ok well that that they had to your question i think ultimately turns on this cold or case your honor as you say well what does a special fear really mean how do we know that it's different than a commission or a bonus or one thing is it does seem odd that using their own language bonus or commission he says he wins right because the plan says he still gets his severance we just don't include the bonus or commission calculate his severance it's awfully assume that they're right that if the second club that he managed was sold here to guide the one percent commission as they called her a bonus they got suppose that's right well that's a future possibility that never occurred remember the clamp plan language is any person who the ministry determines is is compensated by specialty is a present tense term so he sees you know on a payment he got seven years earlier or a payment that he supposedly i don't even believe  let's let's go with that supposedly could of god if something else would happen in the future that is not such a person who is compensated by special fees but when i bought he used both a operating company and the resolution cancel the whole bonus plans so it seems kind of i couldn't you talk about bad faith that's one of the things you look at there was a plan how they conveniently say well now is standing that resolution somehow this but my position is more than that my position is even if that was a special feature which it's not consistent with a fair either plan to call it a special fee in zero seven even if that was true the plan administrator would have abuse or discretion if in don't ever mention this in article three point one b of the plan expressed lee says that a payment of separation benefits under any other contract or arrangement merely acts as an offset against the plan it doesn't knock him twenty five million which is two in fifty thousand then according to their own argument he'd have gotten five thousand into the plan pursuant to article three point one it would not have been entirely not to out of the severance plan so their argument is not consistent with  and liabilities contractual arrangements and everything or was it an asset deal or what my own there might be a but i'm not sure if that's answered correctly that might be a better question for opposing my understanding the holy acquired the woodlands operating company and they did not integrate it into howard hughes it remained as a wholly owned subsidiary so it's a distinct company it just has to be own back howard hughes and the plan if you look at the plan it says the woodlands operating company employees are covered by this  plan administrator works is the director of human resources for our teams howard hughes funds the plan so one like in your holland decision it goes directly to their bottom line but it's more than that it's a lot more than that specifically they make a big point swore this under oath and it's in the record at page two thirty nine and it's undisputed testimony he said if you want to fire me you need to adhere to the company severance policy mr lane replied that he did not know what the company severance policy was and asked mr langley what he would be entitled to under the policy mr langley told me be entitled to two hundred fifty five thousand dollars which is accurate mr lane became visibly agitated and upset and said bill i'm only going to ask you this one time what would it take the next day they fired it off from forty two thousand five hundred dollars now my point is this do you really think if anybody spent time in corporate america you really think this juror ector of human resources is going to essentially  overrule these high level executives at the company who are already on it provably told mr langley he's not getting anything out of the severance policy that they didn't even know about that is not just a structural conflict that's a personal conflict and it's deep now was it cured by the retention of mr brennan riley which the plant administrator referred to as my attorney an attorney for the planned it ministry or not attorney for the beneficiaries of the plan well that's all we know the plain language of what i just said is that there is a conflict and this mr reilly was the attorney for the plan administrator not the plan beneficiaries now they say well that's just loose language and we don't really need it well who has access to mr reilly and who has access to the evidence that would actually show whether or not he's truly independent his retention agreement his e mails with the plan administrator an affidavit from mr riley i don't have any of that the defendant has all that and they chose not to include any of that in their records so it's reasonable to infer that in fact there is a conflict and remained unmitigated if the recent plan explicitly requires a second parachuting answers yes but this plan did not explicitly require one of top managers get to parachutes there may not be enough parachutes for everybody else to go around and i used the annual cash bonuses that covered through two thousand and eight and those he got an explicit notice that said that's withdrawn there's nothing in the record that says the sale instead of award was ever withdrawn plus he's already they didn't say that specifically but did they did say they did withdraw it certain bonuses where did they expressed recently that all of the bonuses remained volatile they didn't say one way or the other but they took over the company it wasn't an asset sale it was they bought the company and so the contracts been partly performed he's there and i use the term golden parachute because of the context there's an ironic twist in this case the gold ord from guess who howard hughes and the guy wanted some guarantees in case he was the one that got kicked out of the airline instead of howard hughes and i suppose that scuzz it was an airline that's why golden parachute  it became the term of art the golden parachute is look when you have a change of control event then the one employees are not all going to be fired goes in there's usually some of them maybe but the top management almost always is because you want your own people in their control and this guy was the boss there was two clubs and just like the woodlands corp howard hughes corp is not in the business of running country clubs our business is real estate development so everybody knew including mr langley when he started we buy or build a country clubs and golf courses and developments and then we sell it we're not in the business of running country clubs so to attract somebody to manage a top flight clubs like that he needs some guarantees that when we sell which everybody knows we're going to do he's going to get something when he leaves and that's what this award was  only an unsigned copy but of course and two things unsigned copies you don't have to suck contracts don't have to be sent contracts can be oral they can be written and not signed and once they're performed on one side which he did by working and selling one of the clubs they're binding but second thing the deal is the play and administrators discretion is to consider whether this person has a special fee or a special contract or a special arrangement and this guy had a special arrangement and did the administrator confirmed it so yes it's after after he was terminated but he can see confirms that and of course the answer is he's already gotten three hundred forty thousand yes before we took over but he got it and there's not as dense usage as was his major compensation the base salary are by shoulder bonus compensation well i mean this was a well did he have a base salary and that was what he was good getting at and he got some bonuses on top of that or was the arrangement that we're going to specially pay us special fee wasn't the base salary that the just the regular salary that he was getting here he got both he got a base salary which there's nothing in that did not change when howard used to go he kept getting the same base salary he did get we did change the bonuses but he kept getting the same base salary that he was before we didn't rewrite everybody's contracts and didn't change everybody's stuff we took over the company he kept getting two hundred fifty five thousand dollars in his last year plus another seventy five thousand dollars bonus plus a deal if a change of control event a golden parachute that he gets ten a one percent special arrangement she says it's not a special contract for the national review but the specialty and special ranks are indistinguishable they're the same thing but it's whether whether it doesn't have to be a contract it's an arrangement been if that's so if that commander forty thousand he would have got he got and the two hundred fifty one thousand he would have died if he hadn't messed up if that's not a special theory what is the administer furthermore the plan says the administrator at the plant excludes anybody who the administrator determines is compensated by special fees or employed pursuant to special contract or later so mr langley's counsel says well but the three hundred forty thousand dollars check didn't say special fate what the plan has to play has to pay is determined by what the plan says not what the previous  previously determined by the executives of the company if the administration made the decision that simply indorse what they have earlier seen it in a heated discussion   that's that's just the way it works so the separation of benefits is only going to come up when the guy has been terminated so that the administrator doesn't overrule that fact it is it's always a factor but holland says this court's holland opinion says you consider two things because this is almost always the case this conflict th structural conflict almost always exists one do you have any history or pattern there's nothing this record about history or pattern and there wouldn't be because this guy this was a one off contract the steward at the country club or the gulf call whether it existed not this court second of all there's no evidence in the record it did all of his evidence as they said somebody at the company said he didn't know there was no affirmative evidence that  that his pay was dependent on what his opinion was langley hangs head on two things she refers to him as counsel to the administrator at one time or another place she says if you have any questions call my attorney well independent counsel is counsel to the administrator that's why you hire it missed an independent counsel to give counsel to the administrator and when she says please contact my attorney that's like me same please contact my secretary that doesn't mean on and it doesn't work out a scale or well but you know there's i mean this is what i say the head of that when the head of the company you know and to the contrary langley has written a complaint said i want to get discovery from that guy because he's not her attorney this is in his original complaint that he filed it's not she's this guy is attorney for the beneficiaries not her so he surcharge if you're misled by the summary and i'm not clear with the boundaries are when you've gotten to the point where we're using breach of fiduciary duty to write to rewrite the plan but i will not i did notice all of the cases that say the summary might give you a breach of the duty duty claim there was an affirmative misrepresentation in the plan summary or the employer that was not true so in cigna summary affirmatively sa we're yes we're switching from a defined benefit plan to a defined contribution plan but it's not going to cut your benefits and is not going to cut our contributions while it did both so if you firmly tell them in the plan and the summary we're not going to do something and then the plan does it i can see a good ground for what he's saying you can't do that the jurors case gerald's versus energy services from this court in two thousand and thirteen seven zero nine if they're for forty eight plan not going to get paid or you are going to get paid and then you don't that's a place for equity to step in this is he didn't say we never affirmatively told him he could get both severance benefits and the his a complaint is just the opposite you never told me i couldn't get both we never told him he could get books his argument is the plant the summary was silent but if if that's enough think if the plant if the summary says that and you're an average employee at the club you might not be unnoticed if you're in a special classification but this was the boss the boss knows or somebody will notice and mine is special group right and the buck and the boss knows that there's we all know that you know judges don't get paid for overtime for work and mortar for errors and neither do junior associates or a lot of clerks because they know they're not regular employees they they no special rules apply to them and this guy shouldn't own the stuff i'll just one thing on attorney's fees he says you know our fees are too well into skirt the fees are pretty high i'll admit that but this is and has to be for clear error and opposing counsel had this case on a contingency fee which at this point means he would get fifty percent since he's so in for two hundred fifty five thousand minus forty two five that we offered him his client when he left his contingency fees over one hundred thousand dollars two so this is in the tone of reasonable unless the court has another question i'll close briefly with one brief analogy so for twelve years i've lived in austin and i drive twenty eight miles down from georgetown to downtown on i thirty five and i've learned to kind of drivers in a traffic jam there's kind and forgiving drivers who let people cut in line and there's all the rest of us who are behind them think they don't let that guy hit and the problem arises because the person who's being kind sees the person they're being kind to but doesn't see all the people they're not being kind to because they're tiny little bits in the rearview mirror part of the reason a reason to risk a fiduciary is have discretion is because they do oh duties to all clan members you can't just look at one applicant you have to consider all the future ones and if this isn't a special fate if this isn't the arrangement if the administrator or the foreman's if the administration has to decide that this guy would get two golden parachutes there's not going to be enough parachutes left for everybody else understand his argument is well but that was years before but if it's not a special fee it's not a special feat it was the day before according to his argument if we sold the second club and on one day and terminated him the next day their argument has to be the same it's not a special fee he gets two hundred fifty thousand dollars twice that's what their argument is and th victim there's no double recovery here he didn't get any recovery he didn't get the payment for selling the club is the club wasn't sold that i didn't even you know and then the question my mind is if it were to get it then that would be a special arrangement what you're on are two things one it would be a special arrangement i agree but he leaves out the full clause that the language that the a plan a ministry is to apply is any person in the ministry a determines is compensated by special fees or employed pursuant to a special contract or arrangement or write or employed pursuant to a special contract arranging he wasn't employed in that pursue it right but he wasn't in there same does a special arrangement for a special fee that would be caught employed there would be compensation a special arrangement about compensation the language of the plan requires them to show that he was employed pursuant to a special range would he was not survived the purchase and their resolution to cancel the bonus plans if you look at record page three forty four three seventy one did ministry or just says well i've talked to the plant sponsor they've confirmed it survived that's entirely conclusionary and pretty self the he's wong with what he finished with our argument would be just follow your plain language if the club was sold the second club was sold right before he was terminated are you will be follow your own argument which is he would get the two hundred fifty thousand dollars and sold for twenty five million and then pursuant to article three point one of the plan that says any other payment of separation benefits under any other contract or arrangement is an offset he wouldn't get both sides if he has the money that he would get for his commission so to is it really an offset under that language well it is i don't there's an argument that it wouldn't be i'm just saying if you follow their position that's exactly what it would be so he be entitled to is it a separation i don't think it is no it's not it's good i mean you can read it's plain language there's nothing about it i'm just saying if you agree and then the district court agreed with them said this really is a separate separation agreement so i'm saying let's assume that's all correct i still win because their own plan says it's merely offset the last point i want to make your honor is on the issue of koehler all right koehler's a case that says if there is an ambiguous plan provision and that's what the case turns on you look at the summary plan description in give it the interpretation as close as possible to the summary description nobody knows what a special fee is in the history of jurisprudence i couldn't find a definition ok a reasonable person if told by a potential employer you'll be compensated by special fee if you get a job here with say what does that mean contract labor as an independent contractors he's saying that the boss should have known that he was a contract labor or independent contractor as that's all the boss had he had the summary plan description that excludes contract laborers and independent contractors he knew he was in either one of those things ok now it also says or any other employee group or classification not eligible to participate in the plan so their argument is well can i finish this point even though i'm running out of time their argument is reasonable boss would have said move any other employee group or class classification not participate in the plan hey can i get a copy of the plan he didn't have it and then they would see someone compensated by a special fee and they would realize that they're not eligible well no the whole reason under colder we're looking at the summary plan description is because the plan is ambiguous so the follow their logic and just go from the summary plan description back to the plan would result in a never ending loop of ambiguity in