it said that but that was never communicated well no judge please said that it was not communicated to the people in this one subsidiary of a two hundred thousand person company ok but that's what we're talking about this we're talking about but this is important because but there's an argument ok well that's the major difference then why would you still be a claim under burstein if you want to have primary difference here is the fact that the plan and then you're not trying to strike the plan amendment you're just appropriate it may decide to terminate that a substantive remedy was available that's trucks and you don't care about that as long as you don't pay a lot just under the terms of the caylee dictates that the written plans terms have a large company running a large plant there is a summer and a three man description and a summary material modification actually had no trouble that they had in fact been prepared and they of distribution to mrs already and her testimony that she didn't get it he was well entitle to go find that as to that particular distribution of violation her the one going to her and he extended that to office it's where they don't help people in this one facility when they tell everybody you know i'm not sure we have to get to the issue of extraordinary circumstances under the disclosure violation why isn't this just appear in simple burstein approach where there's no issue  need to prove reliance no need to prove anything about the disclosure it's simply a case that the two thousand plan controls because it could not be modified by a substantive change that was never communicated to them wasn't that different than the than the look we can look at this in a way that's very different from the way you want us to focus on i understand why you want us to focus on that because you don't come into this case until after the plan was changed and the company was sold through the takeover not sure if we  and how could be applied here i don't know why this isn't any simpler than whether or not the tooth the terms of the two thousand summary plan and plan under which he clearly would have been covered still control because there was operative communication to him of any change in the way we view the importance of somebody's plan descriptions conclude that if the summary plan description was not communicated to him whether the two thousand plan now that may or may not answer your navigated to pay any of it is it a burden to ask them to do that was they agreed to do is that a burden you're saying no it's clearly not a burden to require them to hear that the law does allow some know that argument makes absolutely no sense let's assume the person doesn't get meds the person dies and that they're covered under the plan the payout for the plan is exactly the same we're not talking about imposing a punitive penalty here we simply asking the plan to do what it's contractually obligated to do and you're saying that that's burdensome well maybe it's burdensome but that's what the concept requires i would respectfully if you take a look at it is you know let's look at how this would play out down the road a little bit if that  problem that should the burden be put should the burden then be placed on the person who builds a life insurance portfolio based upon the assumption that they don't have to go buy more life insurance because they're covered twenty four seven from a five hundred thousand dollars policy should that person pay the and accepting that we're not going to require perfection what are the consequences of not being contagious position but i'm not sure that's accurate if the two thousand plan is the one this operative in that's the issue that is the issue but argument i'm making in terms of the administration of a plan comments that there's no reason why in the record this occurred and surmises that it looks like that it was an administrator's are a small group but a very large company recently acquired he does not specifically say as some cases that the remedy of failure to notify in this context and its context is everything yes in a very large way where there has you know there's no reason to think that most people didn't get it and one seems to me on the face of it i think there is an important distinct embarrassed him the summary plan description was a summary plan description that or it could describe the plan  like this is the absence of notice meant that there are no benefits even though the benefits that were last described in a summary thing document were benefits that is substantially greater then probably more than she thought she was going to to get and the only reason that the person is not covered is because of the screw up not on the import of the employee even the part of the either the company or the plant or the person the plant hired was on the scent of the notice is now why should the beneficiaries estate take the hit occasions that one of the compromise was that since congress decided that we're going to stick with some of voluntary employer plans there we're going to have to be still safeguards so that a company knew it wasn't about affirmations that's kind of it's a different kind of case and this is maybe a bit of a strain to take the the law that arises out of employees who never lost their employment who are suing for then if it's that only accrue the last employment doesn't relate to would have to come in and we'd be relying upon an s p d to provide benefits in the plan that it would hardly have to relate to wasn't even existence that we didn't plan why isn't that a problem for you cases in the s p d should the mr should the faults of the consequences of that clerical error if it is a clerical error rise to that level that the employer is penalized and respect that kind of profession and if it's a large that this well well then if you're right there's nothing left of ackerman because whenever you have a situation like this there are always extenuating set or extraordinary circumstances with a reliance that we said in burstein is not necessary you're saying is not necessary because it's always there and if you think it seems to me you're asking us to do is to take an action which is tantamount to striking the plan amendment that's a lot more difficult to prevail i think than just simply saying that you should