shontelle case number fifteen dash one four four three john the freight zero at all versus daimler a g and state street bank and trust company and also thomas lasorda argument not to exceed i joined judge moore in fully in her opinion that day and majority opinion could the decision that were made in it and my question you didn't to her opinion address and law the case with dummy decided it or it's something you didn't read at all in the first appeal and why in the world should it be allowed now when all we did was we me and for consideration of the data age going i bet you seemed like the up the claims that we have set forth for violations of the rabbi tribe i think that i have have a right to have those matters heard substantively by a court and not have them thrown out on technic technical those now would you address your age claim or would you wish to unix yes your honor this is jacqueline aaron for defendant before i turn to the age discrimination claim i'd like to make a couple of comments regarding the motion to amend to add the arista cla certainly says this has not shown any abuse of discretion by judge cook in denying the denying them leave to him and if you look at his opinions he very carefully went through the provisions of the rabbi trust they had argued extensively on the original motion to dismiss the claims under rissa and as this court has instructed judge cook carefully considered whether they could in fact state a claim under recent can they could not in the face of their motion to amend judge cook look at their allegation again methodically through the prior decisions that he had made in this first opinion and concluded that it was futile and that he would not allow them to amend and that that ruling should stand as to the the merits of the arista claim just speaking as to die miller in particular mr thompson said that he wanted to enforce a contract claim under the rabbi trust and as we have repeatedly pointed out wasn't a party to the rabbi trust that was named in the rabbi trust in any fashion the contract was entered into before time learn even acquired and interest in chrysler in addition with respect to the alleged impermissible use of funds he refers to the two hundred million dollars that was in the rabbi trust at the time the time of the relinquished eighty point nine percent current trolling interest in chrysler and then sometime after that they said that it was dissipated and they never explained how but in any event monetary damages under subsection eleven thirty two eighty three the fact that it rose in a different context really not relevant to the statement of what the court said which is actually claim is preempted by a risk by the broad preemption provisions and section eleven thirty two a they argue that it is saved by using this clause in eleven thirty two d on the ground which itself only purports to say the federal laws not state laws and it's prior in the courts prior opinions the court held that the age discrimination claim was in the category of claims that could be exempt from the preemption under eleven thirty two d and then remounted the court for further consideration of the issue and interestingly when we got back in the district court the plaintiffs immediately moved to amend their complaint to add allegations that true that unfortunately for them those allegations were not sufficient to save their claims as both judge cook and judge come on reconsideration determined the interests they are trying to preserve the age discrimination that looking at the face of it there are particular state laws that are specifically referenced and they're specifically the provisions that provide for joint state and federal enforcement age discrimination cla e is that if for example ohio has an exhaustion requirement built into a deal where is michigan does not this claim would not have been preempted if there were no higher claim but would be if it's a upshot if they would both the judge and or the standard under a deal on what's necessary to allege a claim and if they don't i understand i don't just make i understand that but i'm just making the point that apparently michigan does not hav exhaustion requirement whereas federal law does but you could have the same fact pattern we have here brought under ohio hypothetically and i'm just making it up but assume ohio has an exhaust requirement seen cooperated into the federal scheme i guess that they have the option to do that that would mean this the very similar state law claim would be committed in ohio but not michigan that michigan state law regarding age discrimination is preempted in its entirety specifically recognize that there could be partial preemption and in this case we have an instance where they have named as an addition to their failure to meet the limitations requirements of the administrative filing requirement which the sixth circuit has held or substantive parts of the idea statute they've also named defendants that each defendant has argued that they are not subject to liability under under the if as shock clearly held is that if there is conduct that is prohibited by idea that's also prohibited by the state law statute and that it's not preempted on that ground but if you're going to reach that conclusion you certainly cannot hold that the state law is somehow saved even though it brings in a dditional defendants that are beyond the purview of the dia this is judge moore the question that i have is whether your rule then would mean that only state and only to the extent that  thing what the court held in shaw was that the state administrative the laws that provided for a state agency to hear claims was not preempted because that was specifically referred to in the statute and that was and if you took away that piece of that of the state law then the federal law would be impaired are you saying that the state must hear the claims and do exactly what the federal court would do in an idiot i can't speak to each and every possible nook and cranny of how the laws are applied but certainly the issues we have here which related to administrative exhaustion the limitations period for bring in claim who can be sued those are all major elements of of an idiot claim and to the extent that you have varying state law requirements there is no basis under the statute to give effect to those because it's a savings clause as written and as the rationale of the court and shaw explained was intended to preserve federal law and it's it's not really enough to say that well we have state laws that serve the purpose of the age discrimination statute under federal law because they're all working towards the same general goal and that's not enough because it's under the statute it's federal laws that are saved and the federal law is not just its ultimate broad goal it is the goal as constrained by specific specific features such as the very those by allowing you know as long as the law is something that prohibits age discrimination then we're going to give effect to all of the state laws regardless of whether we have all timidly this incredibly difficult and next good morning it please the court you've got a number of briefs and a number of issues i want to point to only one that's specific to state street so that it does not get lost in the more general discussion and it has to do with the age discrimination claim against state street that state street is alleged to be an agent with responsibility for administering the plan and is being sued under the michigan discrimination law as an agent we have spelled out in our brief it page forty three and forty four why that approach to michigan law is different in substance than the federal a d e a and here's the reason they d n a does allow agents to be sued and there's a very limited definition of when an agent can be sued state street doesn't fit it that's discussed in the brief more importantly the a d e a imposes no financial liability on agents who are sued that's the a six  approach in your decision and watson versus general electric agents can be sued if they're the right kind of agent on a responding superior basis to bring everyone into the courtroom but they cannot be sued for a recovery of money now in this case they didn't sue to bring chrysler into the case they had fought against chrysler previously and the reorganization proceedings and lost  but what they are doing with respect to state street is pursuing a claim for money damages on an agency theory that would not be allowed as a federal aid clam because of that do difference between the substantive law in the state and federal court this claim is preempted we also discuss in our brief why stage street is not the type of agent that can in fact be sued under either federal law or the impact of michigan state law didn't we address that in the  your opinion said that the law allowed michigan law allowed suing an agent but there was no complaint before the court previously the complaint before the court now spells out what they think or their agency allegations and state street doesn't fit and we've addressed this in the briefs judge sudden state street is not to use the eighty eight terms in your case is someone who serves in a supervisory capacity in the company and has control over hiring firing and conditions of them want to so this is an issue that was not addressed with a complaint before the court   had been precluded by your by your one sentence ruling saying that state street could be sued as an agent and what we're saying is that the district court should have decided t point and this court can decide a do can affirm on any grounds and the correct ground here is that when you read their first amended complaint we're not the kind of agent that fits under either state or federal law and more importantly they clearly asking now for money damages recoveries from state street that are not allowed under your own jurisprudence watson vs general electric plaintiff have responded to that only by saying well state street should be deemed to be an employer instead of an agent but that's just abandoning the field on which they've argued before previously ok i think her three minutes are concluded thank preemption because the a t f a in no way depends on the opposition of individual law billet he for it's in force on appeal the plan is number of argument against preemption they argue that the district court  also applies to small employers while the aviator's not employers with fewer than twenty employees are not subject to day to day at all and under playing at the construction claim against the small employer would be saved from preemption by a weapon forty forty even though that employer is not even subject to the a b a i would also obviously applied individual defendants like mr law sort out and that construction is completely at odds with the arrest of savings clause and what the supreme court decision and shot finally the plaintiffs say that the district court got it wrong because they sued under michigan state law so the fact that federal law does not allow better clear that they were cherry he was the one that decided to impose this practice of securitizing benefits with the trust fund for active employees only he presented that to the dime or board of manage away the rule that defendants why they are imposed and in this preemption argument it doesn't even advance the interests of goal of creating standards of conduct because people in control refer plans and ministers and producers too we're garbus of whether an individual can be held responsible they start prohibited from discriminating and that's exactly what the court in the shah case sad if you look at the whole thing which is the framework stated we hope that your human