concerns the amount of a true up contribution or final adjusting contribution to a retirement plan for executives of greater bay bank corp which was acquired by wells fargo in two thousand and seven the plan creates a position that it benefits determiner that was originally appointed according to the terms of the plan by greater bay the original employer that benefits determine our resigned and was replaced by a benefits determined are appointed to the by pursuant to the terms of the plan that apply following a change in control and those terms permit the employees acting with the trustee to to appoint the benefits determine are that's an important protection for the employees that is built into the plan their right to appoint the benefits determine are following a change in control that protects them from exactly what wells fargo is trying to do now that is from a successor employer seeking to minimize its contribution obligations to the plan the plan actually  protects its participants benefits in two ways one way is that it protects them against an interest rate decline before retirement by requiring the true up contribution and the other protection is that in the event of a change in control they get to a point the benefits determine or who calculates the employer's true up obligation the plan charges the benefits determine are with the responsibility to determine the amount of payments to be made to the employees and their beneficiaries under the trusts that fund the plan so far we keep talking about are you keep talking about the determination by the benefits determine or is the fargo's contention and you know for example if the benefits determine or did something completely unauthorized by the plan such as saying you need to make a true up contribution of the necessary funding times ten then wells fargo would have a claim that the benefits determine our had acted outside his authority from other words the determiner does not the final say for the benefit of homeowner does something inconsistent with the plan that doesn't necessarily govern i think that the benefits determine a kid not to something that's flatly inconsistent with the plan but the benefits determine or does have the right and the authority to determine the amount of payments under the plan and that's the quote that's what this case is about and who who gets to determine what the plan says as distinct from the calculation who gets to determine whether or not the benefits determine her determination was consistent with the plan the benefits  and then i guess we're trying to figure out whether or not the administrators correct no i don't believe the plan of been a stranger gets to say we disagree with the way that the best planet that the benefits determine or has performed his authority if wells fargo has the ability as a successor employer to overrule the benefits determine our then the change in control protection is an empty promise it's an illusory provision of the plan so we can interpret the plan to contain a provision to just make it more difficult for wells fargo to reject what the benefits determiner has said is doing knowing yes ben i mean  why it's seems like what you're saying is that they can't reject it that is what i'm saying they cannot reach anything like it if they if the benefits to term are does make a determination well fargo disagrees with  then the whole dispute is what is the agreement provides for yes and that's why we're here that is why we're here right and what standard do we apply to a determination  to get any discretion in determining whether to accept the determination to determine they do not because because the plan terms that confer discretion on wells fargo are clear that the discretion is only conferred with respect to the unfunded portion of the plan so the grant of discretion states that it is as to the compensation agreements and as to the what we call the executive plan which is defined as the unfunded portion of the plan this dispute concerns the funded portion of the plan the trust's the trust agreements are controlling over the compensation agreements that confer discretion want works to our advantage regarding the grant of discretion well know in terms of the look correctness of the determination by the benefits of turner sure so the language in the plan that states that the plan  languages that are you're relying on well you know place in the agreement well the agreement the schedules to the compensation agreements and the exhibits to the trust agreements which are parallel set forth funding requirements for the plan and they set forth specific amounts that are to be contributed for those participants and we know from looking at the benefits projections that were provided to those participants that those precise amounts that are set forth in those exhibits and schedules those contribution amounts are the contribution amounts that were projected to fund not only a retirement stream of retirement income but also a de benefit a death benefit you know for example and as i said i have not asked the question again what language in the plan or agreement are you relying on well the numbers i guess are language i don't know i'm by i'm not interested in just the numbers i'm interest where the no one language tells us of those are the numbers we're supposed to look at because what you're saying is that there's basically an independent death benefit and how do i know that looking at the agreement plan you know it from the fact that the plan was originally funded to you know i don't know i keep asking you for language and you keep saying we are giving me things that aren't the language is there no language the good that works in your favor there is language that works in our favor and where is it isn't the language that in the compensation agreement and in the trust agreement that says that there that the trust agreement for example is designed to provide death benefit you have the plan in front of you i mean i'm am i asking for you to put my nose in the language  so for example on e r to ninety six dollars which is the st whereas clause of the burgess trust agreement it states that it is the desire of the grantor to provide funds for the benefit of certain example at the supplemental compensation benefits agreement i'm looking roman to know death benefits are provided under this agreement exactly supplemental benefits provided through a secular trust perfect paragraph roman mind so where is paragraph roman line what does it say paragraph romans nine describes the creation of the set of the secular trust i'm looking at the language that says the employer shall provide to employee or employees beneficiary the supplemental benefits specified in schedule c schedule c is the schedule that i'm referring projection on e r two hundred and thirty one we compare it to the schedules on three on your three hundred and eighty and your for ten and we see that the contribution amounts that are specified in the compensation agreement and in the trust that the net annual contribution to trust that is listed there these annual contributions are the contributions that at this time in two thousand and three were the contributions required to fund from the dollar amounts comparing them to the jacksons for the employee when we're working our way through we start a roman to roman to says no death benefits are provided under this agreement except for supplemental benefits provided through secular trust for two hundred paragraphs romans nine and then we were grown in line and you said well the roman nine incorporate schedule c and i look to schedule c and i don't see either in roman nine or in schedule c any separate textual provision saying that there are definite we are talking about the plan summary  summary that refers to and this is cited in our brief it states that the plan provides one hundred percent of the death benefit proceeds specified in the insurance policies owned by each participant secular trust and in addition to that language we know from wells fargo's own analyses that there analyst concluded that in order to fund the trust in the way that wells fargo wants to do the policies would have to be changed those analyses from n f p a say policy service is going to be required to reduce the death benefits that are in those policies in good morning your arse may please the court jeff sturgeon on behalf of the greater bay benefits plan and wells fargo the central question before this court is whether the benefits plans at issue provide for the benefits that the former executive seek what they seek is a guaranteed death benefit they seek that in addition to the benefits that are actually provided under the plan which is a stream of payments between the ages of sixty two and eighty five i'm holding up the compensation agreement and the trust agreement from miss birdseye who's one of the former executive agreements the benefits they seek this guarantee death benefit are not in here that's the reason my opponent couldn't answer that question realize is not part of the plan all of that but what was what was this the meaning or the signal or the it said at the bottom of the last page of paragraph internal secured plan insurance benefits  then it says one hundred percent of the death benefit proceeds specified in insurance policies own by each participant secular trust so if you were to read them back in the day what was that it's because the way that you have to understand the way these plans work which is a little strange but the the compensation agreement provides for the funding so the bank there's a schedule where the bank would be paying into a trust once that money is paid into a trust and those that those terms are in the trust agreement that's the executives money they could actually take it out but the way it actually practically worked was they bought life insurance right as a funding mechanism right and what happens was is that that life insurance grows the value of their whole policy ally policy ends and it's a little more complicated there are multiple policies in each person and they way they grew varied some mirrored s and p somebody that's a little complicated but that's a side issue so what happens is at age sixty two that individual there's a true up that a curse so the bank has to look at what's in there and apply some assumptions there's no debate or dispute about the assumptions that were or projections but the bank has to say is there enough in that life insurance to spit out these payments that are specifically provided for in the in the compensation agreement between sixty two and eighty five so there actually is a death benefit there so for the it's easy to think about it this way sixty two dollars the trooper curse the former executive unfortunately passes away at the age of seventy those payments which in the case of burgess is seven million seventy two thousand dollars a that they're attempting to capitalize on the funding mechanism being the issue when really the issue is what benefits provided for in the plan schedule c has igs contributions that the bank has to make your early contributions and then the banks on the hook that person turned sixty two if there could be way more money than needed to meet the payments from sixty to ninety five and then there's a windfall for the executives nobody's debating that could happen but what the banks on the hook is if those life insurance policies aren't growing because of the interest rate environment the investments the bank has to make sure there's enough in there for them from sixty dollars to eighty five dollars based on projections and assumptions to meet those that seventy two dollars plus three percent and that's what happened there no dispute about the math what they're trying to say is no no no we are entitled to that seventy two dollars plus three percent plus a guaranteed death benefit in a specific amount it's not in these agreements it's not in these agreements honour's you can start and there so let me your honour's ask about this rush and that's afforded and it's important because this is this goes to the rule of the benefits of term or so the compensation agreements provide that wells fargo's the named in the plan administrator and it says quote that name fiduciary administrators shall have sole discretion and authority to decide all questions regarding eligibility for  amount of any benefits to be provided for under the executive plan and this agreement this agreement is represented referencing the compensation agreement the plan document this courts were beat repeatedly held that that language gives them discretion gives wells fargo is the plan administrator and the named for the discretion the compensation agreements also provide that wells fargo's determination of any claim for benefits will be fahed final and binding the i want to talk about the benefits the term what practically his or her role was but whether there's a change in control or a change in benefits determiner there's no change in the language i just read to you there's no change in the roles in the discretion in who gets to decide what plan language doesn't change when the identity of the benefits of turmeric changes so this the benefits the terminator's is delegated certain duties and that's also provided for in the trust agreement and what the former executives are effectively saying is because the benefits the term honor and this is in the trust agreement can tell the trustee what payments to make to the former executives that the benefits of terminator can now tell the bank how much money it owes into the trust that doesn't make sense that language isn't in there and there and they're attempting to argue that the benefits the termers role is rendered sup it's actually the opposite if the benefits the terminal can tell wells fargo whatever amount it once he or she wants to put into the trust then the language i just read you about wells fargo's discretion is  this for the former executives also rely on the fact that well there's some conflict between the trust agreement and the compensation agreements there's no conflict the benefits the farmers role is really important because if you think about the true up here's what happens your early contributions for ten years before you hit sixty two the banks putting in money as specified in schedule c the true up occurs the bank looks and make sure that there's enough money in those life insurance policies to spit out the payments going forward but then the bank disappears the bank no longer has any role the money's in the trust the executives can immediately take it out or they can let it sit there and pay them the those monthly or those yearly payments going forward and it's a little bit in the weeds but the district court picked up on this in the record that's an important role because if if you take too much money out too quickly you actually can be taxed on it immediately so this benefits the term or directs the trustee going forward between sixty two and eighty five monitors the situation protects the former executives and make sure that those withdrawals from the life insurance because they're technically withdrawals they're borrowing from the life insurance and what the benefits are doing is making sure that th amounts don't result in tax implications so his his or her role is clearly defined it's limited it's limited by the plan documents it's limited by the trust language it doesn't result in conflict  the trust agreement and the compensation agreement so the former executives rely heavily on extrinsic evidence in this case and the district court in a thorough opinion said well the the benefits not in there so i don't i don't really get there in the but let's look at it anyway i'm not going to go to the plants talk about the issue in the plan summary that your honor just pointed out but there's another provision in there that this report wrestled with with this provision and it's it's on top of two under withdrawals and it's in it says quote the plan is designed so that participants can withdraw or borrow the cash value from the insurance policies on a tax free basis in order to satisfy the annual distribution schedule specified in the agreement the only way to read that is you're taking the money from the life insurance to satisfy those exact amounts that are in the agreement between sixty  money from a life insurance policy that benefit goes down it's wasting that's the way to read that language so the district court said look even this plan summary which i can't consider under mara setting all the legal issues aside that we briefed your honor shouldn't be considering this but even that doesn't get you there there's a court also looked at the former executives declarations and that they submit a declaration saying we we expected this and they gave the district court gave that the weight of deserves but then it looked a little closer and it looked at things like what the greater bay bancorp do in proxy statements before wells fargo took over but only old greater bank describe these plans no mention of an independent death benefit of a specified death benefit they describe them exactly the way they exist in the plant looked at projections because the the former executives said hey we were given projections when we were at greater bay back in those projections show that there's a big death benefit at the end after sixty five dollars we get our money there's a big death benefit that's evidence that you're guaranteeing us a death benefit or if you if you really look hard at those projections some of them at the pens on the interest rate environment you don't really know it's the idea of a projection some of them had the death benefit going way below the face value of the life insurance policy which obviously the district court said well that kind of contradicts your point that there's some guarantee amount of death benefit if the if michael  corgan who fully supported wells fargo his reading of the of the plan before he got cold feet and resigned and another benefits of her manner was appointed that shows that mr corgan when he's giving those projections are is saying to you that there's no guaranteed specific amount of death benefit so your honour's i would like the quick pivot quickly with my remaining time to talk about the motion for attorney's fees where where we are the and the argument on this is there's there's really two arguments the nd relates the hummel factors and i'd like the rest of our briefs on that i don't want to argue that here today but the with the issue i do want to bring to the court's attention is that these compensation agreements which were individual to each executive so this isn't like a benefits plan that you're your own or see quite often where there's five hundred and ten thousand dollars participants everybody's and these are individual each person meaning each former executive signed a explain why i think you have to take into account that provision arista has a provision in about attorneys fees that say the district court it's a scratch and may award attorneys fees this is obviously different it says shall these former executives specifically bargained for it meaning it was a they had a individual agreement with their former employee that had a prevailing party attorneys revision and i think what the district court did was it it relied on a very very narrow reading of of hyman's hoff which is a supreme court case and in that case the supreme court said the planet issue had a statute of limitations in it  silent about a statute of limitations on when how soon you need to bring your claims we feel comfortable enforcing that statute of limitations now obviously this isn't silent on the tonys fees it has a provision and it's a made provision but it doesn't conflict individuals are free to contract as they wish there's no conflict between may and shall shall is upping the game so i think when the district court in the beginning of your opinion said it's irrelevant the compensation agreements have this shell provision i think the district court erred i don't i think that's too narrow overreading of comments off and that the court the supreme court in that case noted at the beginning of it question i do think it has discretion i do think that the court could look and say there's something in an equitable and equitable about the situation that i don't feel comfortable warning attorneys fees i think the court does but i think the court has to take into consideration that these parties negotiated for a prevailing party attorneys fees provision let me understand what you just said you're saying that the fact that they entered into this agreement is not in itself determinative as the entitlement of turn two attorneys views it has to be considered i think under which it has to be considered in the context of a recent arista has a may provision and are you saying the district court did not consider that in the context of the entire case she said she noted in her opinion on attorneys fees but she then immediately dismissed it as a problem and my point to the panel is it can't be irrelevant it has to be part of the mix here because it doesn't conflict with the rest and i think that her  you got you've got three minutes now to listen up in terms of time allocation let's have three minutes with respect to your appeal and then a couple of minutes if you wish to respond on attorney's fees and then if you  regarding the death benefit it's uniform the when this plan summary says the one hundred percent of the death pro death benefit proceeds specified in the policies proceeds that are specified in the policies that fund the plan those death benefit proceeds are listed in both an f p s reports and the benefits determiners reports that's where they start  they say what are the what are the death benefit proceeds and do they have to be met or don't they you know it's interesting that you know wells fargo's position is we have to leave five million fifty thousand dollars death benefit in these plans that's not specified in the compensation agreement or the trust agreement either there's nothing in there that says these the the true up contribution has to be calculated so as to fund a fifty thousand dollars death benefit and yet that is what wells fargo wants to do so the dispute is really not whether there's a test benefit it's how much is it is it fifty thousand dollars or is it one hundred percent of the death benefits that are specified in the policies  i would like to respond on the proxy statement very briefly on the other items of extrinsic evidence i mean it's absolutely clear that greater bay and the employees believed that they were funding one hundred percent of the policy the death benefit proceeds specified in the policies the the plaintiffs gave up other life insurance because they believed that that life insurance was redundant of what they were being provided under this plan the proxy statement well we have three pages of sixty two of that proxy statement it talks a lot about how the retirement benefits are going to be funded and it doesn't talk about life insurance benefits in those three pages that we have but that really doesn't help us to understand what greater bay was intending and greater bay wrote down in the plan summary and in other documents that this death benefit was intended may the court has to exercise discretion and this court and every other circuit has specified a five factor test to guide the court in exercising that in the right and you're saying the parties simply cam cannot says that the parties can contract for a statute of limitations because a receipt doesn't provide one so there is no controlling lang there's no controlling statute to the contrary but if the agreement is saying that bene that attorney's fees shall be provided to the provide prevailing party the court they should the prevailing party shall receive fees that is contrary to the controlling a result language but that  ys the court may award fees and it's also contrary to the language of a ressa that says that party need not prevail in order to receive  g as the supreme court said in heart you don't even need the prevailing party to receive fees under this provision and the contractual provision is to the contrary so the contractual provision really doesn't have anything to add to the analysis that less than a minute your honor sir st of all i was in caracas correct that we didn't submit detailed time records but there is my colleague pointed out to me you know my opponent point out there's more than three hundred dollars fees in the record so one of the correct that but the other point just very briefly on inconsistent with the rest and that's my point that this contract thing for a shell provision is not inconsistent with the main provision thank your honour's thank you thank you thank you thank both sides for your helpful arguments the case of black versus