these two fundamental reasons we believe that there are two primary issues in this case that can be distilled down to this the st is if a collective bargaining agreement provides increased benefits to all retirees who received home court seems to be to have addressed this decision what they explained was this different workers who work at different times under different policy provisions can be provided different benefits you're only guaranteed the benefits that w promise to you while you are working however and dick the joys of court recognized but that does not give you the right to go back in time and dissimilarly treat workers who work under the same policy provisions at the same time because if you give life annuity recipients additional benefits and you leave out the actuarially equivalents you're actually violating your risk because you're creating different classes of retirees and that is  anti cutback rule was designed to prohibit in the actuarial equivalent will you have to treat all workers the same at all times throughout their retirement if you give something to a life annuity reset be it you have to give it to an actuar because otherwise the retirees are not getting the promise of the same benefit discordant as then recognize that right the court in lightfoot recognize that right the coal and coal recognize that right in each of those decisions usually it applies to when a retiree receives a lump sum distribution and then the plan does something to increase the additional benefits in all of those cases every court said  cola wasn't accrued benefit and it was promised while the worker was working if you give it to the life annuity recipients you have to give it to the actuarial equivalent recipients also i r c section one point one four one five example three that we pointed out it's specifically recognizes that just because you receive a lump sum distribution that does not destroy your right to receive additional benefits after that time if the plan provides an accrued benefit after you receive a lump sum distribution you're entitled to additional benefits that's what the i r c recognizes now if you received your maximum the maximum money under four  fifteen the secretary of the treasury's cola just because the secretary of the treasury increases that four hundred and fifteen limit each year that does not give you your right so if the secretary increased the cola for five years that does not mean every single year your lump sum distribution would increase but what exactly three recognizes is that if the plan trustee at year five does something to give you an accrued benefit then the their collective bargaining agreement and they gave every single retired player an increased benefit for those life annuity recipients that was an additional benefit that was in a creek benefit under the plan it was negotiated contract it was not gratuitous the problem is that the plan did not want to pay it to the actuarial equivalence they only wanted to pay it to the life annuity research b s and that's where it violated wrestling forever in permanently really require a forfeiture of that right in the answer to that question is no and this is why the clear were puti ation rule was specifically designed to address when a beneficiary recognizes that they have an injury or an abuse if you take out the cola night from anyone and rissa required the plan to identify a scheduled and date so if there was never any letter yes ma'am and because it doesn't say only that the benefits are scheduled to cease july st it says that effective september st one thousand nine hundred and ninety six his monthly benefit was increased to a certain amount pursuant to the collective bargaining agreement to the extent that the district court or your adversary think that that put your client on some kind of notice that there was an increase so as to require him to complain if he thought the increase was not accurately calculated what's your response to why that wouldn't make your claim on time here so if you look at the p cases where the clear repeat were p d ation rule is applied in every one of those cases there was the plan either stopped paying the pension while they were supposed to or they didn't pay enough points one the increase clearly would not put someone on notice that there is an abuse you wouldn't think that someone is abusing you by giving you an increase number one number two is we never allege that during the ten year window the payments were we've always been what i told the district court is that when that letter was written what it said was true mr aziz is benefits were scheduled to see on august of two thousand and one but the saying is that everything that was paid during the ten year window upon information and belief was appropriate the problem in this case arose because in two thousand and two on the benefits commencement increased date i think that's the official language that the plan uses that's when sometime in two thousand and two we don't know what that date is they increased the normal retirement benefit for all life annuity recipients nothing no information no documentation nothing whatsoever was given to mr zaid of doulas east to put him on notice of this one and what is the fact that exactly the effect of that is that it violated a reso because of the st point i made earlier when when when the n b a in two thousand and two elected to give life annuity recipients increased additional benefit but they left out mr aziz or anyone else who was an actuarial equivalent that issue here we we allege that it did not if you read cole and if you read as than those cases are very clear that just because you receive a lump sum distribution that does not in your right to get additional benefits after that date i was receiving a lump sum distribution he was receiving distributions periodically up kids to life st two thousand and o a distribution scheme that ended in july of two thousand and one see i had thought your complaint was that given the increase they gain in the modified collective bargaining agreement that they had to recalculate his benefits and give him an increase not just to two thousand four hundred and seventy nine but to account for what the future increased i thought i'm not addressing the merits of that but that's what i thought you claim was instead are you now telling us you think your client was entitle to continue benefits after two thousand yes ma'am the defendants have tried to say that we're claiming that the payments made in the wrong what we're claiming is that by the n b a agreeing to give of life annuity recipients every single year increase in their benefits in accordance with section fo fifteen they created this similarity in the players who worked at the same time and in the policy provisions let's stick with the statute of limitations and i'm more concerned because then i have a real problem with why you weren't on inquiry notice you knew that you were getting an increase up to two thousand and one you warrant on inquiry notice to find out exactly what that increase provided so that if you were if your claim is well we were entitled to keep getting paid after two thousand and one the document that would have told you that was the collective bargaining agreement you could have received gotten a copy of that but as soon as you got notice in two thousand  onus on the beneficiary to figure it out when the clear repudiation rule the onus is on the plan to notify the beneficiary of his rights and that is a critical fundamental distinction in this case but the de vito case recognizes that you can expect retired basketball players to be a risk the watchdogs and to figure all of this out it is the plan's responsibility as the sophisticated trustees of these pension plans to in plain language notify the beneficiary of their rights and in this case what we factually showed the court was that in one thousand nine hundred and seven when mr aziz as benefits increased he did not that allowed you to get more money but your benefits are scheduled to see that's the problem there right tall that in one thousand nine hundred and ninety seven in a letter that i yes ma'am you're at least told that the collective bargaining agreement is the reason you're getting this money and you're saying that that doesn't put you in a position where knowledge can be imputed to you that there's enough information to provide a basis for a claim you're getting more and more was ever a collective bargaining agreement that he was expected to end in one thousand nine hundred and one so they basically just played on his belief and led him into a low in a state of believing that his is a benefit should have ended in two thousand and one but that's the problem is the fist akkad of lawyers and just a free bar came into this case st i came into this case nd and as not being us an expert in a wrestle law it was extremely confusing trying to figure this case out and how everything played so my my up my fundamental point is this the mere identification of the schedule in date by itself should not be a basis on a clear repudiation rule to eliminate a beneficiary use additional right to benefits that would violate estan it would violate kohl it would violate judge of because you're basically saying that as soon as you receive your lumps on distribution or as soon as your five year or ten year is done that's it you have no more right to any more decimal benefits and that is not the law and moreover in this case from a statute of limitations standpoint you're basically saying mr aziz you received more benefits than ossie they didn't pay you enough so you should have known the follow lossing in this case you're going to a foreign minister corps ruling that basically says well they were paying you more than what you thought they should but you should have filed a lawsuit  be a question for the trier of fact to determine which is what is the reasonable interpretation of how the scheduled end date should be applied and in my opinion the district court applied  extremely broadly and said well it said it cut it off on this date so you were cut off that's not the law but my argument is that rule twelve b six requires a district court to give all reasonable inference is in favor of the plaintiff and that the scheduled end date by itself is not sufficient notice of an injury because because that is what is it is required at the beginning when you sign the documents you could you would  trial well i believe that there are there are some gaps in the we performed an exhaustive internet search to try to find any collective bargaining agreements between the n b a the record is so voluminous because we tried to attach all of those please the court my name is myron remailed of the proscar firm co counsel for the apple e national basketball association players pension plan this lawsuit was commenced in november two thousand and seventeen more than seven more than sixteen years after the plaintive as he's finished receiving his retirement benefit payments from the pension plan in his complaint as these contends that he should have been allowed to receive additional benefits that were awarded to other participants who elected to receive a normal retirement annuity but were not made available to participants like aziz who were elected to receive their benefits sooner and had finished receiving all of their benefits before these new benefits were even provided for on at least five occasions before two thousand and one as these was explicitly told that by july two thousand and one he will have received all his benefits to which he was entitled and that he would receive no benefits after that that was because he had specifically chosen to receive a form of payment called a ten year certain benefit which means exactly what it says that he's entitled to receive all his benefits in ten years rather than to wait for a normal retirement and moody like other participants may have elected to do now by virtue of these communications the district court correctly concluded that as these knew or should have known by two thousand and one at the very latest that any claim to additional benefits after two thousand and one had clearly been repudiated and those that as these claims from now as this is contending that these communications could not have repudiated claims for additional benefits that were implemented implemented by the plan after two thousand and one we believe that the unequivocal occasion that all benefits would cease and that as these would receive nothing after two thousand and one makes it pretty clear that it encompasses all benefits including future benefits but as the district court recognized any doubts about that about the unequivocal nature of those communications or resolved by two additional significant pieces of information which i think your honour's already pointed to st three of the five communications were received after the plan started implementing these benefit increases including for mr as east the us as these new or should have known that the unequivocal statement that he was not going to get anything after two thousand and one was so applied to benefit increases because he had started receiving some nd despite the increases that commenced did way through his ten year his benefit payments did exist did in fact cease in july two thousand and one exactly according to the original schedule so is the district court concluded the plan's repeated written warnings throughout the nine noteworthy that these post two thousand and one increases were the same types of benefit increases that mr as these had began to receive beginning in nineteen  and ninety five collective bargaining agreement point in place a process pursuant to which each time the maximum benefit permitted by the tax law was increased the collective bargaining starts getting that benefit the nineteen one hundred and ninety five dollars collective bargaining and the plan document also made very clear that those increases would apply only on of course back to basis and only for the period of time that a participant was otherwise scheduled to receive benefit increases on a pointed out in one thousand nine hundred and ninety seven as eases attorney sent a letter of inquiry as to what the source of these benefit increases were and mr and he was specifically told these increases worker soon to the new collective bargaining agreement and your benefits are still going to cease in two thousand and one saw st of all the statement that the benefits will season two thousand and one as i previously said was an lawyer was told these increases were made pursuant to the collective bargaining agreement he could have obtained the collective bargaining agreement and he would have seen exactly how these increases were going to work they were not going to apply to anybody who were already received their benefit payments and they were going to only apply on a prospective basis increase the benefits that a participant was otherwise scheduled to receive you referred to mr do the seasons more did you know that he had  were some norah sent to his lawyer well for purposes a motion to dismiss we only know what's in the record that was attached to the complaint was so what's attached to the complaint is the correspondence that's written to his attorney  so that that's what we know i need your honor i had question before what would happen if the case was we man did i certainly hope that's not going to occur but what if the case were mandated it seems to me we already have enough evidence t aziz was you knew or should have known about the claim by virtue of the five pieces of correspondence that we identified that were in fact identified in the complaint the only thing that could happen with discovery is additional information showing that mr aziz was on notice of his claim maybe had access to a summary plan description for example which would have told him the same thing but i don't think anything in discovery will subtract from the documentation that was already identified in the complaint or not which we relied on me and we're trying to understand how do you understand the factual situation in two thousand and one the maximum out allowed by the law and then said each year if there's a cost of living increase we will again make a benefit increase and this is artfully done because contrary to i think what my adversary was implying you can't accrue these increases in advance that's the point of those regulations he cited so for example of a participant aleck's alarm some his lump sum can't reflect his future increase is if it's going to cause his lump sum to be worth more than what an annuity at that time could be worth so if the maximum annuity that somebody could get is for example three hundred dollars a month and you intend take along you can get a lump sum that's worth more than three hundred dollars a month even if your benefit was supposed to be three hundred and fifty dollars so you lose out on that by taking a lump sum so what the plan what the collective bargaining parties agreed was since they can't accrue it in advance what we'll do is we will see only a man the plan to provide these benefits as we were able to do so so in one thousand nine hundred and six there was an amendment everybody up to duration of his ten years and each time he gets the increase he gets told it's ending in two thousand and one and in fact it ends in two thousand and one which is exactly what the collective bargaining agreement con the the issue with the seventeen years is that again it's not on what mr zeta doulas ease did the reason why there's a seventeen year gap is because the plan treated him as he was no longer a participant when under the law he should have been treated as a participant but the question for us today is not the merits question it's when he knew that he had such a complaint and i am just perplexed as to what more he needed to know beyond what he was told in that october thirty thousand nine hundred and ninety seven letter i alluded to that letter told him two things one he was getting an increase and two his benefits were going to see s as i indicated i think the issue is that the plan did never addressed unlike the case in dix the plan never talked about colin's whatsoever it told him what he was getting now want to talk to his benefits were going correct as of that time his benefits were here's here's the problem is the increase that that was the basis for your claim that those increases had to continue here is here is what i explain because if there was never any cola increase after two thousand and one then his visits would have seen east in august of two thousand more and it was possible that the collective bargaining agreement provided for increase benefits up to two thousand and one but not the year after no ma'am i'm saying that the way that the collective bargaining agreement was written it did provide for benefit decimal benefits after august of two thousand i understand that but i'm trying to figure out what your client reasonably knew when he got this letter well if when his lawyer got this letter well the law is very clear we're not supposed to extrapolate what my client knew or didn't know the law is what do the documents say i understand that and the documents seem to be pretty clear so the only thing i'm asking you is what other reasonable interpretation could there have been so so here's my answer to your question the increase in benefits does not suggest an injury or abuse let's say let's just so that the increase in benefits as as discussed in october of one thousand nine hundred and seven do not provide a foundational basis for the cla amendment to the policy there was no issue of colos there was no there was no discussion about polos and how they would be applied either during the ten year period or after the ten year period so my point is this if you are going to have a ruling that says the scheduled to end date of an actuarial equivalent for ever forfeit your right to additional benefits that is a fundamental change in the law over rules as overrules all the cases that discuss an additional benefit being available after payment of for example a lump sum for instance the to draw an example if you receive a lump sum distribution then technically that would be just like the end of the ten year period after the fixed payment period or five years right that's when your benefits that's when you receive your benefit you say that the scheduled in date negates your substantive right to additional benefits then under no circumstance the statute of limitations is going to operate as a substantive bar to a beneficiary receiving additional benefits after that time and that is what the fundamental changes here under the clear were pretty ation rule you're supposed to look at it and go was where the plan documents put the person