court is now in session ok thank you very much welcome counsel i'm sure you all are now familiar with the video conferencing but just a reminder that when you're speaking you should be i mean you do that when is speaking you should be muted please also remember you should not take any pictures of this or any recordings audio or video also please your call that when you reference the record we would appreciate a record site and th materials and all the documents that were relevant to the climate no cost just as the regular waters if if the climate appealed we typically follow it up to see if there was any additional evidence that he wanted to that the failures of the building trades to comply with all the rules could lead to one of two arguments one argument is therefore they lose on the merits the other is shot i just want to i'm trying to kind of summarize it's my understanding that your argument is not that their message mean cases over they lose on the merits it's of their message to be now we get to get to the and you're just saying we had to get that case decided it was corrupt but you're open but that questions importance of the remedy though who decides the merits there's there's significant law that would also allow her to be  back to the administrator and then to get the final administrator view that she didn't try really in other words if not necessarily deems it deemed exhausted end of story i've seen our case law in most other circuits say the alternative is just statement but the difference i think is that the letter there are sort of indorsed it whereas the letter here is in tension with it and i notice judge eric below the district court didn't say that when we look at these we look at the full set of communications so is is that sort of black letter law that we aren't just looking at the attachment and the plan itself which is usually the linchpin of arista but we're also looking at the letter as to how it might interact with the plan call the district court said well this quote discouragement argument is best understood is the of the plan simply protecting its position not trying to confuse her or create uncertainty as to notice i know there isn't much law in one thousand one hundred and thirty three as you stated at least as it pertains to no full and fair notice of exhaustion requirements but no my me from your brief what is the best case on this that where  circuit court has looked at it and said you know a reasonable interpretation wouldn't be understood by the beneficiary this isn't enough  f it doesn't directly come to mind and we've got your brief i just was wondering if you did have one because they're you know there's a lot of they receive a lot but i did i like you i couldn't find too much on  what's substantial compliance as a matter of law when you have attached a plan that does clearly stated in the attached whatever section twenty three dollars but then the letter accompanying it discourages or even says you can't are defined to be those participants who are still working and contributing to the bot the section goes on to say and active participants benefits been determined  discouraging argument that so you understand my question because if i remember a footnote in judge average reconsideration order he said this was not even raised until after i dismissed the case is is do remember incorporates the two thousand and seventeen right the whole premise of the march th jean letter is the you don't have standing and you're out of time to do anything because you were denied a year ago what the dunns just a fiduciary and we look at how would a lay person interpret the communications and so yeah i said i may have agree with you that if it had been just the two thousand and eighteen letter but that letter couldn't even have been written as it attachment is even mention is on page two at the top and it's attached not saying here's how you can exhaust its attached to support the plans argument that she has no remedy anymore she's sentence after it says this forecloses the ability so why wouldn't a lay person think ok i've lost it it's too late they think i was over within two thousand and seventeen and they're attaching proof to show reservation of the funds the pension fund that you do that in order to preserve the defense the judicial review you would most forcefully resist deemed exhaustion but what's the real resistance to allowing her to have the administrative review that had she been alert if we assume your letter and all your communications were substantially compliant she would have gotten went to the heart because  why can't we just go back to where we should have been had everybody got what they were supposed to do which like  and i'm saying that's not what they're doing here they're not saying we now get the money and send us to chat they're just saying we get to be heard on this on the merits so why not that it seems to me what we should send back that question because it seems to me the way they all phrased it to her she would think that when she asked for it she's entitled to it but then she doesn't that's not the reason the the the the reason was to explain to her where pure rights work that's why the full appeal procedure was at happened do we look at the concept of council or do we look at the actual council and my experience it is most lawyers are completely unfamiliar with rissa and does that matter mr stubbs or alluded to that does that both about courts looking at the full set of communications to ask would a reasonable interpretation by a lay person and understood there's an exhaustion deadline do you favor either of those two cases do you have any other case where a court said you know this letter should have been clear enough to this the average layperson what's the case you think is most factually similar it would be within the th and certain way there was a remaining value to be calculated at the top with respect to the issue about changes of councils so when when this level rocking it was sort of the end of recess or council's representation i received the case i personally being a very experienced aggressive counsel did not know no you don't get paid any and all the reasons why