participants and beneficiaries when it created a risk the decision was health care plans and administrators troof used to communicate and provide the most basic plan benefit information the most basic claims processing information to assignee and or authorized representative medical providers now a risk was created to create transparency in the health care process by establishing disclosure requirements ursus goal was  remains to protect plan participants and beneficiaries the district court's decision effectively removes authorized representative medical providers from a ministry of process and these are the parties most capable of understanding the that's what you are just referencing right my client correct your honor at the before the surgical procedures were commenced the beneficiary signed an assignment of rights and benefits it clearly states that it was assigning my client the right to to represent the beneficiary as an authorized representative which is discussed in and also as an assigned for the purpose of standing before the court but so let's assume that your client was in fact making these inquiries in its role as the authorized representative yes ok i know there's an issue that your opponent has with that but let's assume that's true yes if there were a violation in that respect doesn't have to be the but the patient through the can with the name was the beneficiary to fisher and yes it doesn't have to be that person who is who you would be representing rather than the entity that you're representing now well yes or no your honor and then that's a that's a good question and it is a little confusing as an authorized representative my client was entitled regardless of any anti simon provision for god this of any issue of standing in this court my was a violation with respect to your client inquiries as an authorized representative all i'm saying is that for that violation isn't the proper plaintiff the beneficiary herself not your client yes i mean you are who you are authorized to represent and therefore could come in her in her name correct rather than even so on name and she would have been she would have had the benefit of the information that would have been gathered she's not here that's what i'm saying that's correct is not the problem with that aspect of your of your argument well no that's part of that's only one part of the argument that the part of the defendant's pelleas position is they did not need to communicate with my clients at any point in time because my client was also in a so they refused to provide any of the information that their own plan documents which we did not see until summary judgments were filed that their own plan documents say they are required to provide the authorized representative so my client did not have the opportunity to make a reasoned informed decision about how the plan how the claims were processed or be whether there was an anti simon provision still and i do want to try to understand  argument what i'm not getting is that i'm i guess i'm telling you i'm willing to accept your argument that there was a violation on the defendant part in not providing your client in its capacity as an authorized representative with certain information all i'm saying is that if that's the basis for your claim it seems like your client does not have standing to be here as the plate of the proper plaintiff is the beneficiary herself and she's not here ok and that brings you to the second part and maybe this will be point that you were appointed the administrative representative below and then you respond to that by saying oh yes we did for instance on page four zero six of the record but i'm looking at page for a six of the record and it does say this is what you are you below in the summary judgment motion of defendants were aware that eden is the appointed administrative representative and as signy for the plaintiff or for the patient  i grant you that's there but there's no argument that relates to being the appointed representative all that follows is argument about being an ass signy is there some place where you raise this argument about being the appointed administrator of representative below other than here because it doesn't appear to be here other than in three  words well you see what i'm asking and i do your honor and i appreciate the question first of all i would point out that the court took this matter under submissions that we did not have the opportunity to discuss any questions or concerns that the district court may have had at hearing you know you could make arguments on this issue in your motions below i believe we i mean the whole idea is are there whether you have standing to do this right i mean that's how it got thrown out right and you say now what it seems to me is you say now we have standing as administrative representative but then really they say he didn't really argue that below you are you are the ass signy and we had all the problems with that so now you're in this other thing i'm just asking whether that's a new argument because and if not where was it raised below your just say you didn't need to raise it below it's not really it's not an argument that we have standing because where the authorized representative the point of the authorized representative reference is merely that these defendants had an obligation regardless of the assignment they had an obligation to give us documents we're not hearing where is that argument below that's an interesting argument but district corner of the chance to respond to that argument if you didn't make it so what did you make below i believe that we focused primarily on the antis i mean issue the assignments that were attached as frankly we really didn't understand that we needed to make that argument you didn't needed to make it unless you intend to make it on appeal or point our point on appeal is that we have standing as a derivative standing as an aside any based on the fact that they misrepresented and gave us misinformation the documents were not furnished to us we did not have access on the stand that argument and i thought you were  on the being us and the minister a representative but you're not i'm not saying that you are i'm saying that based on that fact they should have provided us with these documents at the get go ok that's my point ok so the answer to my question d right at the point of that is merely that we should have been provided these documents based on the authorized representative status in november or december when they were requested that's it it is not why we're here to y because we're an authorized represented but if the you know that issue i meant provision is nonetheless and forcible the none of that matters because you would be out any way that's fair i think that's fair ok i think if they're not stopped from presenting that then so the heart of our argument there is that when we look when we look at the record here and when we look at what is necessary first awful and when the district court look to what's necessary first of all we understand that there's misrepresentation we understand that there is reasonable and detrimental reliance and we understand that there is extraordinary circumstances which the courts have defined as a promise that defendants reasonably expected to induce an action or forbearance or alternatively a showing of repeated misrepresentations over time those are the those are the core and then there's two additional standards that the ninth circuit applies has applied in certain circumstances but not to the question of derivative standing and those additional elements or whether there was an ambiguous plan provision that reasonable people could disagree in terms of the i'm sorry as to the meaning or effect of that provision and then the second is whether there was an oral representation regarding an interpretation of the plan so that the first one that's come to the jump in i mean the language is clear and it's not like it's a big price since you may not  sign period now the language is clear your honor however we did not have access to that language until we were filing cross motions for summary judgment but at that but at that point you then knew that you couldn't you could be an ass of me at that point we knew that the plan language contained that language yes but at that point we believed we have come so far down this road that they are stopped from making this argument  or they have waived their opportunity to make this argument because they knew that we were claiming to be in assignee in november of two thousand and fourteen and i understand that the law is that they don't have an affirmative duty to inform us four out of the kindness of their heart but when a medical provider makes a claim and files an appeal and says where the authorize representative not important where the assignee at that point reasonable communication would have called for them to say there's a number of things they could have that they could have said you're in assignee our business pattern our practice is that we don't communicate with signings so i'm sorry we can't communicate request and an appeal on i want to say november fourteenth or maybe november eleventh two thousand and fourteen early right well before you filed suit you knew that there was an anti assignment provision no we've booked or we  thousand and fifteen yes but we did not receive the plan we didn't even receive the one page that has the anti assignment provision so on one hand we've been told by the claims administrator explicitly no there is no anti assignment provision which we then relied upon and filed the suit and then we filed the suit two months later counsel sends me a letter and says well did we need to call counsel and say i'm we received your letter we're really puzzled by this do you mind sending us the page from the from the documents things like that would be really easy to do and i can't imagine any reason why any reasonable counsel on the other side would decline to send you a copy of the page i ver something you could have gotten from your client right how i'm sorry the beneficiary know we contacted the beneficiary and the beneficiary declined to provide us any materials the beneficiary wasn't cooperating with you correct it will that's a bad situation but at that point you probably have to contact opposing counsel and say thank you for your letter this is the first we've heard of this we'd understood contrary would you mind sending us the page from the documents opposing counsel who made his position very clear in his initial disclosure statement short i don't know i don't believe it was filed a month or two later but i'm not positive about that it's in the record and his statement was there are four categories of documents that might be relevant to this case and will produce none of them until a protective order is put in place so then so the answer is no he will not give me that document and then we did not receive a protective order so that that statement  didn't contact counsel in the meantime by by telephone or by e mail to say boy this is this is this is a this is troubling to us this is the first we've heard of it is contrary to what we've been told before would you mind sending us just a copy of that page you know it's very possible i did your honor i just don't remember it because it struck me as odd i've filed a number of arrests a collection actions before and never ever have i not received at the very least the summary plan description after the case was filed they often refused to provide other materials and that's a different discussion but i've never seen counsel refused to produce the most basic plan document that i mean i i was at a loss so i don't i don't recall i wouldn't be have and the district or got it right cognizant did nothing that precluded it from invoking the clause in this litigation in fact had cognizant responded to eaton's precinct demand even probably would have turned around and argued there was waiver based on that response pardons and shouldn't be punished for trying to avoid that trap which is definitely out there when you look at the cases of waiver in a stop vs seems to me just an indication that you're not the proper party might have been courteous and avoided all this i mean it's like we're not going to talk to you i'm looking at the page eighteen of the reply brief where they sort of say they say and sort of shotgun fashion this are all the things they did and what you did they say even attempted to participate in the administrative process but was ignored is that true explanation and that's basically true right he may have reasons for that that's true as well from an ass and you know well we were some some in there and we got through that before when the prior questioning we're dealing with him is an ass and you're right defense also provided false d now and defendants fail to assert any standing based affirmative defense or identify any assignment provision in their answer to the first amendment complaint is that true well there's no duty to just asking the facts that those are all facts right are already i'm just trying to see if that because when you add them all up together you can say well we had this reason for not doing that we had that reason for not doing this and all each one by itself makes sense but when you look at a mall it looks like an unreasonable of business practice i'm not going to argue with that but is a legal enough to understand you legal arguments minute sure looks like you weren't proceeding in a way that's designed to have the whole system work for efficiently if you tell these people look asked the plant participant for a copy of the plan and it's undisputed in this record well that's the only thing they say they have trouble with a plan that they don't communicate well that was only after they filed suit before they filed suit they had no communication with the plant participant about getting a copy of the plan and in fact in january in the record it is your honor i'm just asking that's fine ok well that's partially answered my question thank you but he might in january of two thousand and fifteen before they the plane on the internet as of january they were planning to file suit there was and there was no good faith effort on their part ok to go and i understand that the the thrust of your response appears to be that the that it's treacherous for you to even contact them and i can understand maybe it is split if if if you're indications that we're not going to be in contact with you i don't know if you if you have something which indicates that they're not in assign and you could just attach it it's hard to imagine that that's going to threaten you very much and it would be enormously useful your honor as a business practice i'm not going to argue with that thank you that's what i'm asking but we cited and it's that in our at twenty four to twenty five for cases that have held that there is no affirmative duty to disclose the anti simon provision and so given the cases where people with ponding two appeals you do start down that path of is that possible waiver so that not and cognizant made the reasonable choice here to say we are not going to respond to assamese and it clearly was from the ask me if i may point out the first line of the appeal says and this is at e r one seventy four e the so it's you know it's a big question is whether they had notice that that they could be the s n e and you say well it's up to them to figure it out and i understand that as well but when you know and you know it makes a big difference and you can pretty tell that they're relying on the fact they were lying or they're doing this in ignorance of this and probably wouldn't be doing it if they knew about it just seems like yeah we could have done it but we didn't have to so we didn't so i take case after case of under rule twenty six there is no disclosure obligation you have to serve an r f p in federal court they never did that they didn't want the plan documents this was about setting up this lawsuit to try to get something out of it and if you look if you really look at the timeline you will see clearly that process leading up to the discovery closes that you're suggesting that they they purposely didn't try to find out so that they could so that they could bring in nuisance in fact i can't i can't i can't speak to that and that's kind of what yours but i'm saying if i think that might be the case there is no good faith effort i think we can safely say that if you don't even official about getting a copy of the plan when i'm disputing a twenty four hour access to that plant this is an issue between the plan beneficiary and the provider if you're going to provide services i had the time get the plan documents from them the burden falls here on the provider to make sure that they have the communication with the plan beneficiary but it just seems a little like you're both playing hardball and you know if that's fine i can suck the resources of the courts when y'all do this kind of stuff you know of course your honor if they had at the time we sent that letter you know somehow took action in the district court to let them know hey wait a minute there's an anti spam cause by the way the district court pointed that out in footnote four of his decision where he said i'm not going to get into i'm just saying i understand you're out of it again the district court did consider that issue and said i'm not going to get into visions were ambiguous in order to apply a stop all and that's if you get past the extraordinary circumstances and you can't do that here the plan clearly has an anti semitic clause they raise the first phone call the first phone call had nothing to do with the antis i'm a clause that had to do with us you see our which is a method of calculating benefits whatever mistake was made there has nothing to do with the anti semitic laws and if there was a stop all based on that again it's the plan beneficiary that has to bring the action he did the is it just is there only one time when they were told that the plan did not have an anti simon provision correct that was out in august after i apologized it was in january of two thousand and fifteen correct after surgery demand letter and appeal were filed in mid january phone call ok but it's long after the surgery right correct so you have the issue there's no detrimental alliance because the surgery had already been right so that's what i don't i guess i'm just still a little puzzled as to the basis for their claim they're all to me they're trying to recover benefits under the plan that well just they want their fees for having to file this action and as your honor was pointing out could it have been avoided maybe with you know a different business practice they would have a sort of a double of stock a problem the first one is they have to get past the anti simon provision for which they claim that you gave them bad advice and if they can get past that so that we notify these and i find a provision then want to the question as to whether as to whether they were they were misled about the about what the plan would pay prior to the surgery correct you don't even get there and once they can properly bring that's really there's really two different stop of claims here that yes there's the pre surgery and then the post surgery and the pre surgery one only had nothing to do with the anti semitic laws that is islamic laws and again when you have onion because plain language like that how can you have a stop all from a you know and at no operator essentially making a mistake and getting giving the wrong information when you again you don't beneficiary for a copy of the plan documents before filing suit and again and as to the benefits issue again there's really no argument in the reply at all about it and would be hard to make any argument because it clearly says you use the medicare rates statutory penalties here again even if you can't get to that issue this is not a case for statutory penalties maybe you have you know something that could have happened that would have clarified before we got to this point but that goes both ways this suit was filed pretty darn quickly after that appeal was filed they had their mind made up in january two thousand and fifteen and again you know they're caught in a catch twenty two here a lot of these plans have to be careful that they don't engage improper s assamese before they get a waiver argument back on that so they wisely the concern is that it by dealing with them you will recognize them and ask any cricketer case case after case where arguments are made but anything you say could have a big black things thing we  this piece of paper doesn't recognize you as an assigned me yes and then they had a paragraph showing why they're not in assignee no one no reasonable court's going to interpret that as recognizing someone isn't  it or not and so this is just one of those cases where you know things could have been done before suit was filed perhaps but there really wasn't much time six weeks before they made that decision that we're going to benefits claim anymore so the prejudice is that they have to file suit and the district court specifically in footnote four said that's not going to do it and in fact and i just want to leave with cook one twenty one f three d five forty one side in our papers ninth circuit one thousand nine hundred seven it clearly says if you don't have a title meant to benefits a colorful basis for seeking benefits damages in attorney's fees against apple lees that alone will not establish a recess standing so again there is there is no prejudice years certainly not extraordinary circumstances thank you i'd like to respond to a couple points made by counsel unless the court has other questions i would like to ask first so the suggestion is that my client was attempting to manufacture a lawsuit and i i take issue with that the requests were made for the appeals and for documents on nov twenty first two thousand and fourteen the email referenced regarding contact looking for the plan online in in preparation for a potential lawsuit and again looking for the plan online and not finding it that was december that was january thirty first so that's two and a half months after sending requests for documents and the appeals that were completely ignored so i don't i don't know how much longer my client should've waited before it would seem like an acceptable amount of time being ignored before they would consider filing a lawsuit that ultimately wasn't filed for another month and a half roughly but i don't think that there is merit to that argument counsel suggested that cognizant did nothing to waive its anti assignment provision but in fact our only access point was through at and i where we were told there is no anti sound provision so that's an active waiver right there and then you know as the court pointed out it would have been very easy to send a letter saying we're not going to negotiate with you eating because you're an assignee but here's a summary plan description and that's going to clarify for you you would not have standing to bring a lawsuit so don't do it or you'll lose and then we're not here right now very simple communication that was necessary now counsel noted that we were relied on anti simon provision misrepresentation for filing this lawsuit but prior to that we relied on the misrepresentation that the plan would would reimburse my client according to u c r that was the first misrepresentation which the district court missed and if we had been given accurate information that this was going to pay to medicare rate why would my client have performed two surgeries that would result in getting paid zero dollars did you raise that below they say you didn't it is it is in our brief that we were that they were thought that was the critical thing that we didn't that we were only relied on the anti simon provision which is not correct if that was that the you seem to be saying well when we can are you anything on appeal that we didn't are you below because the briefed as thoroughly as it should have been and that's that falls on me well so i understand the court's position just to say there was a representation and half a sentence isn't really raising that are human as a basis for a stop  understand the court's position ok know your over your time capsule you mate you may want to wrap up i will wrap up i'd like to just make one final comment which is that there's a suggestion that there was no prejudice to my argument to my client and that there is no benefits claim but we filed a motion for summary adjudication because we could not prosecute our benefits claim because we were provided with no information so how do you how do you how do you prove you're right or wrong on a benefits claim when you've denied access to every single piece of evidence so the prejudice is that we were denied the ability to access the court and to fairly prosecute our claims and hopefully the matter will be remanded and we'll have the opportunity to move forward on our benefit claims and deal with the double stoppel issue to the extent the court decides not to it's a wonderful opportunity for the court to determine how the ninth circuit feels about stoppel in light of derivative standing ok thank you thank you thank you also for the argument we submitted