today the first topic begins with the understanding that the risk is primarily a notice statute a cornerstone of the entire risky is that substantive plan terms must  forth in writing the purpose behind that is one so the employee knows what her obligations are and secondly so the plan administrator knows what its obligations are and in that vein plan sponsors typically an employer great have great latitude to draft plans virtually unfettered now given the foundation of the law coupled with the freedom to contract that leaves the the plant sponsor with the opportunity to set a pretty soon appeal deadline in the plan and if an employer or plan sponsor wants to set a priest suit appeal deadline it needs to be in the plan it's no different than a contractual limitations period and let me say this it's not ministerial as the district court concluded incorrectly of the second area i'd like to address  thirty three the employer has to have some procedure to provide full and fair review suggests to court if it's not in the plan such as putting a contractual limitation or putting a pre suit appeal deadline it can't be enforced as a stat but to answer your question directly it's not in the statute the statute really leaves the plan sponsored with great freedom to drop a plan  provides very little about what has to go into a plan so we're the procedures or it's a material term of the plan all material terms of the plan must be in writing in the plan what would i call material term this is a long term disability plan how much how much in dollar benefits will someone be paid what what is the time period the benefits will be paid those are all contractual limitations those are all let me go back and just give you a quick little rundown how that how this claim worked in the real world in typically a claim works receive benefits for about eight years until her claim was terminated six of those were paid by met life after she live in gated the claim out in nevada in round one in january two thousand and seven reliance standard was substituted and is the insurer for met life when  s received an adverse benefit letter plain english for benefits or determinate in december of two thousand and eight i wrote a plan i requested three things that i normally do one produce the claim file produce the  ernst and young that by defacto it had stepped into the role of providing a copy of the plan and it i don't think it really makes any difference if we start dividing the duties so definition in terms of who may be liable for not producing documents administrator lots of courts have read into that that term really means clan administrator but that's incorrect if you look at the text it uses the term administrator but the administrator is the one who has the plan i mean you know if you want to find a plan you know one place that has to is sometimes by default it's the plan sponsor the employer right so the first place you go look in the plan to see who the administrators are is it tells you if it tells you someone that's it if it doesn't it's the sometimes but it's not essential let me explain why it's not essential for example in this case if reliance is administrating the claim i would expect that reliance has a copy of the plan if reliance doesn't have a copy of the plan how could it in ministry to administer the claim it couldn't were alliance wrote back to me within weeks insead here's a copy of the one nine hundred ninety eight plan if reliance didn't want to produce it it might have said we're not the plan sponsor don't rely on us get it from the if you ask them for something and they give you something that isn't it the navy they have breached a producer jerry duty to you and might have some liability if you've been harmed and i raise that before judge you know the district court you're asking for sanctions under the statute which are applicable only when you asked plain administrative for a document and they don't give it there's no negligence standard there's no you get the sanctions whether or not you can harm i disagree with them or your honor because the statute uses the term statute is an absolute statutory obligation to provide the plan if you ask for it but it depends on what we're using this term claims administrator that doesn't exist so i take back what i said if  with no requirement of causation harming or it's that very penalties on the administrator now you telling us i did wasn't the administrator no reliance was an administrator reliance was a fiduciary courts have read into the penalty section which is not the primary claim here that there is some duty to show prejudice i think on my quarrel with that and see it's an incorrect reading but that is how the law has developed in certain areas the real problem here is we're alliance spoke and misled my client so let me go back to so i asked for the plan within one hundred eighty days yes the the time limit to file an appeal is not in the ninety eight plan and this and it's in the two thousand and five it's not in there what it says is we incorporate precision it was not produced into we're mediating the case and what the s p d says is if you want to appeal right to metlife it gives a p o box in lexington can kentucky the plan that s p d dates from january one two thousand and five technically the plan sponsor of the plan is in violation of section ten twenty four b of a ressa for failing to provide a material modification update to my client so when you look this was not one of those cases where the s p d will say it was incorporated by reference into the ninety eight plan and that's the plan relied on if the two thousand and five plan had been produced with the s p d which i asked for because it would have had to have been produced if we're alliance was producing the entire plan arguably it was with thank you plan this is an insurance policy plan and metlife was the administrator of claims under it and then it became the line standard was an industry when it was under so when he's saying that my client should have had the plan documents and sh all this stuff this isn't your typical situation with an insurance plan so we was with the employer once with a limited and council house copies of all those documents the receipt have were only was he never asked for them and that's the big problem here i think it's funny he says in the two thousand and five s p d it says well you could ask metlife for the appeal well if we provided him with that information and he appealed it to met life and we said you didn't appeal it to us within one hundred eighty days then we would have misled him but there was absolutely no misleading here and any point in time judge karen you would ask counsel now what is required of a written instrument and that's twenty nine the deadline to file a lawsuit was seated in the s p d but it was not stated in the decision letter and what judge thompson said and i think quickly saw was that they're going to you might say that there's no prejudice because they got a letter telling them what the hundred eighty days were except for the fact there's a reg deemed exhaustion reg which seems to say that if you don't get notified of the claims procedure that has to be is one forty five or twenty eight and recoup are overseas new england telephone and telegraph one thousand and thirty one twenty first circuits decisions both of which say that in the absence of prejudice even if there's a procedural irregularity and this case we're saying there is none but for argument's sake if there's a procedural irregularity you have to show prejudice and those cases constructions of this ray they deal with this specific regulation you have to be  all under twenty nine c f r two five six zero point five zero three dash one there are different subsets terry did discuss exhaustion and the claim was i didn't have to exhaust because you did not provide me with a detailed enough letter on telling me what i needed to do to perfect my it is you're saying here is you don't have to take it because you did not ever establish the claims procedure because the only way to establish it is in the written instrument the point well wrong with that i guess as well the if you think wrong it doesn't have to be in the plan itself in this case it is though so there's no harm no foul but it doesn't have to be you look at all of the cases that have discussed this issue when we talk about it being in the summary claim description because why because that's what the statute says the procedure has to be in the summary plan description the regulation to that statute says it has to be in the summary plan description and that's again twenty nine c a part two five to zero point one zero two talks about what the plan summary claim description must include and it includes remedies available under the plan for misled by the s p d so they'd be a ally on the plan the plan said two years i believe so but we don't have that situation here isn't the argument that is just one step move if you had a plan that was entirely plan if it's in the s p d you get it even if it's not in the plan if you detrimental it relied on correct but here we're positing that there's nothing in the in in in recent planets self vested in the plan under which when you become to single women in her case was that i need plan that's why we have a copy of the ninety eight plan but procedures a risk of procedures changed in two thousand the department of labor changed the deadline to submit an appeal from i think was ninety days two hundred eighty days might have been sixty days but with a change the deadline was ninety the change the deadline so that's why the s p d changed at some point along the way too but the point and again i don't mean to keep harking back onto this but the issue is prejudice and that's why we submitted a rule twenty eight chain letter to the court and that discussed the tenth circuit decision called homes and in that case what happened was the speed was deficient and i think it's important again that case least of all these decisions the d c circuit the second circuit the fifth six eleven all the circuits say even if you don't win the s p d if it's known and there's no prejudice to the claima we're not going to excuse your failure to exhaust and i think those are important for the specific reason that they all talk about it being in the s p d or not none of them none of them say you have to put it separately in the plan home specifically says only you didn't put it in the s p d same with arteta you did put in the s p d but it doesn't address the issue of whether it should have also been in the plan because it shouldn't and what's the significance of metlife being named limited plan would have misled them and i would have said yeah that's that's a prejudice there but in this case everything said to them you have a hundred eighty days in fact four days before that one hundred eighty days expired they wrote to my client saying we will be appealing and we all know that's not sufficient in my kind immediately wrote back and said no you have to do it on time two days before the deadline if they didn't send that letter then maybe there's is you said in this case equitable tolling might be an issue if there was undue delay lack of diligence but there wasn't in that case in this case let's look what happened he said i'm going to feel it is some point in weeks eleven months but when you look at what the appeal involved all but two pages out of twelve hundred were in his possession by the deadline to appeal one hundred eighty days those two extra pages arrived in july two thousand and nine one month after the appeal deadline nothing prevented him from saying here's my appeal here are the eleven hundred ninety eight pages i'm trying to get some more records in and i'll get them to you because frankly by the time he got those the decision would not have been it was within forty five days so there's such an undue delay then he has to show he's asking this court to equitably extend a deadline and there's no equitable basis to do this in this case because everything was told was factual i do have to clear up another couple points that i think are wrong that were mentioned one is you know the section five o t to see the penalty section refers to the term it ministr we were told that it's erroneous lee referred to as the clan administrator but let's look at the definition of administrator in the statute itself that's twenty nine u s c one zero zero two sixteen a and it doesn't say plan administrator it all says it means straight or the term administrator is the person sews was this person specifically so designated so even though that's consistent consistent here and i have to before time runs out because this is real important is addressed the law case because absolutely it does not support his claim that my client can be the plan administrator what happened in law was the the employer set up the separate committee and said near the point mr within the employer's control though the employer did everything and with this court said in law which is nine fifty six second three sixty four in three separate places referred to the fact of the relationship between that entity the committee and the employer in fact on page three seventy three the court says that we're an entity of which the administrator is a part in effect holds itself out well that's not the case here rely scanners are part of the limited then it also talked about on the next page three seventy four the closeness of the two entities that committee and the employer and then really different than these cases which should play insurers cannot be considered de facto plan administrator and said that because these entities were are clearly distinct from the plan administrate or just like reliance standard is clearly distinct quick point in the marine case and erroneous lee said it was the plan administrator when it was and the court said you still can't be held responsible for penalties because you're not in this case counsel says you responded to my letter we did respond to the letter because he said pursuant to the recent regulations which were quite to the claims decision maker so we were responding as the plan administrator we never said we were the claimant straighter we're responding as the claims administrator the district court correctly held that there was no prejudice we provide the deadlines in any event everything was included in the documents so there can't be any prejudice here and the defacto plan ministry  thank you i heard my colleague me a very important admission he said my client's claim vested under the one nine hundred ninety eight plan for claim was governed under the one nine hundred ninety eight deadline under ohio law she had fifteen years to bring suit and when the district court decided that the appeal deadline is quote mis ministerial and not substantive it had the effect of turning a fifteen year statute of limitation into one hundred eighty days with the effect of foreclosing her claim on the merits forever that was just plain wrong as the sprint pointed out repeat well in america very clearly summary plan descriptions tell us about plan terms they do not add planned terms unless of course the one instance where the plan actually incorporates the s p d by reference the nine hundred ninety eight plan does not incorporate the plan by reference i also heard my friend mr bacharach say repeatedly there is no prejudice with what lines produced of course th was prejudice it produced the ninety eight plan if i had been given the two thousand and five plan with the s p d i would not have taken any chance of not filing the appeal within one hundred eighty days because at the same time a litigator in this case i litigated a case against prudential a judge barbara darrow in new hampshire decided because the claim deadline was in the s p d only under life insurance company of boston plan again because there was an absence of proceed your old deadline in the plan liberty tried to bootstrap it in from the s p d prudential tried to bootstrap it in from the s case on appeal before from judge judge judge tomorrow should have reached the same conclusion because the ninety eight plan there is an absence of the hundred eighty days and saying i was saying that the point it was bound by the two thousand  plan was prejudicial because reliance standard had failed to produce it preceded thank you