temper seventeen dash one four three one randy pierce versus chrysler group l l c pension plan oral argument not to exceed ten minutes for plaintiff five minutes for me guess and fifteen minutes for the defendant lawrence preston for the who suffers a loss of his pension benefits or worse in of this a country benefits is the result of the pension plans mistake now the district court or first of all this court has found found that i could quit he did not reprove vied any relief in this situation for reformation the court found that an honest mistake which not to me this is a hard line so clearly you don't mean intent to deceive i think we all agree on that at this point but you need frogger and aquittal conduct right or what is the difference between an honest mistake and fraud or an equitable conduct and what do we look at so if we know what kind of common law fraud looks like it seems to me an equitable conduct you could argue and should argue  something less than that but what is it what did you use is to say it's a misrepresentation that we have to find an affirmative misrepresentation because it's the other you should is not knowing but it didn't day right to me mr and you correct me where i'm wrong to me a misrepresentation is you terminated vested person are entitled to thirty yet now that's a misrepresentation this is an omission in my making a mistake there is there a distinction it seems to me there's a distinction between an omission and a misrepresentation i'm not saying you know mission by the way couldn't amount to an equitable conduct i'm just trying to understand what the line is i think you're looking at misrepresentation to there are only the misrepresentation is in regard to what could cause the loss of your benefit and by not putting forward the information what about what could cause a loss of benefits the should is a misrepresentation it laugh at the participant in this case but with an assurance that you if he retired within five years i understand what the brits are clear on that is there a misrepresentation in the sense of saying to your client from the from the chrysler side go look at the s p d the s p d tells you the information and the and the s p d didn't in fact include this item correct in those are details but the misrepresentation is really what you have to do in order to get the supplemental that effect and the s p d by its omission misrepresented what was needed and you have to have a misrepresentation to there must be a misrepresentation and there must be a duty you're either legal or ethical to not make a misrepresentation that's what our quibble fraud  it's the combination of the duty and not living up to that duty what case does that come from all that comes from  because it raises the level of trust that someone has when there's a legal or ethical duty to make an honest representation for example when you're buying a car and you read and had saying this is a wonderful car trip would you take that up with a greater salted understand it may be exaggeration but when they say that the car has seventy two examples of where our obligation to provide accurate information exists that it's the couple of the best representation with the legal or ethical duty to you you are claiming both equitable and stoppel and reformation is that right and do they provide the same remedy or is there a difference in the remedy and the two theories you know i've thought about that and i can't think of as a near you know in which someone would be eligible for referee bage should wear a stop or provide something better for them i think that in this my name is eric shefford and i represent the secretary of labor as and because curia in this appeal as you're well aware the secretaries brief is focused on the intent to deceive requirement that was imposed below i am pleased to hear that the court believes that that was an improper requirement under the law of the equity because the secretary very much agrees would like to address a couple of the questions that you just posed to mr  talks about omissions as being required as being a violation of section one of the to the s p d is required to provide all information that would result in disqualification from benefits as the case was here but also suggests that the panel of the prior six circuit panel that looked at this case to determine based on the information before it which was the administrative record that there was a material misrepresentation here so i  would suggest that the court the courts below in this court here the question is what must the plaintiff show to obtain reformation again from the secretary's perspective whatever it is it is not an intent to  right there the plaintiff must be reasonable must reasonably mistaken as to the plan terms and the defendant must engage in equitable fraud or other in equitable conduct of course now what does that mean you think th fraud here you know that's beyond the scope of our brief so can we then let's focus on the second problem go ahead i'm sorry joe well i would suggest that as well but i but i think there are cases that can provide some  good guidance for this connecticut fire is an excellent example now this case was decided in one nine hundred thirty six that's two years before the merger of the federal court merger the benches right there you did not have you did not have a misrepresentation even if you didn't have intentional deception you didn't have detrimental reliance all you had was a reasonable stake caused by the defendant and then that the defendant was benefiting from that mistake by enforcing the contract terms as written so when you say in equitable conduct and i know you're not trying to address this specific case but what would you say would constitute inequitable conduct well i would suggest that is a factor based test and i know that you know courts and law would like a hard and fast rule but that's not what the courts and what he would that's not how they would analyze these cases i think you need to look if the just record needs to look at factors that support reformation any mitigating factors that would suggest that perhaps the defendant is being held to an unfair standard thing things really the driver is whether the defendant is benefiting from the from the mistake the reason a mistake that it caused but can i ask you a question because this was dealt with on summary judgment and it seems to me in the world of reformation we're talking about discretionary judgments by a district court because it's a district it's a decision of activity should the district court than in the act would be area hold hearings gather facts and do a bench trial i mean how does this law in other words because what i'm used to is i guess what i'd call the a one claims and not reformation claims and so explain to me how that works  think that's exactly right that there are facts that need to be that need to be determined whether a trial is necessary in this case is of course a matter for the district court you know and i think there were some established material facts below that were undisputed but there are facts that have not been addressed by the district court because of the way that it was decided based on this intent to deceive requirements so again what i'd like to know from the district court would be hey was was mr pierce actually mistaken and then too was that an object of lee reasonable mistake and then three did the was the defendant benefiting from the mistake that they caused for will were there any mitigating factors don't we know the defendant benefited i mean right there not paying so isn't that factor pretty easy well from from your perspective i think that's that's probably correct again that's beyond the scope of our brief hypothetically that i pathetically  always be met i'm not sure that's true your honor i can imagine situations where it's the with the plan that's benefiting or the where where it's the sorry where there's  a mistake that is unfairly it could benefit somebody else other than the defendant is that well you know yes or i mean there's a lot of different hypotheticals we could think about where reformation would not be issued for section one or two file ation i guess is what i'm trying to get at and it's not necessarily that you know like just because a plaintiff says there aren't doesn't mean the harm i guess is what i'm trying to get at but when the first two factors get to that so you have was the pla actually mistaken then the second factor was i think objective lee was it ok right what was the second factor yeah i think when you look at the treaties and when you look at the when you look at connecticut fire the  the object of the mistake must be objective yes and then what was the fourth factor i'm sorry well i think any court needs to take a look and see if the defendant did anything to to mitigate the harm that was going on you know it could be that the person was mistaken but the  defendant took immediate action to make sure the mistake was rectified i suppose in this case and i know you're not answering this case but in this case the plan itself had this criterion in it and my recollection from the record is that the plaintiff asked for a copy of the plan and was given a copy but was told to look at the s p d so in that kind of a situation there's nothing that a  plaintiff could do to get the actual language but what if hypothetically the plaintiff was given the plan would that make a difference that this requirement was actually in the plan itself and the plan was given to the plaintiff yes your honor i'm question is it important that the that in this case the plaintiff i hypothetically the plaintiff asked for a copy of the plan where the limitation was and was not given a copy of the plan and was told distinct that would be a factor and it would matter as to what the timing was when they received the plan whether the plan was available on the website like this p d was and also whether the plan was relatively understandable  which i think in this case it probably was but you know we also i think as you're aware there's testimony below that says you know the plan document from the from the company saying the plan document was so legal istic that it we didn't think it would be first person to ask for a copy of the pension plan is there any evidence in the record that the plan was offered to the employees t i want to be careful now answer your question because i don't i don't want to be misleading in terms of the plan was always available meaning if the participants asked for it they would get now available in terms of was it on the website no it was not on the website was there anything on the website indicating that a plan existed well it's the summary plan description itself said that a plan existed and i was very careful when i asked and i took mr pearce's deposition he was adamant that he read the pension plan from cover to cover that he read every word in it and that some reply description says in it not everybody this is in controlling but if you have any questions or if there are any conflicts you need to look at the pitching plan itself mr pearce testified that he read that language no i'm not arguing that somehow the pension plan trumps because of the language but it's certainly a statement in there that lets them know that the pension plan exists and don't forget mr pierce briefed point out this is not an unsavory person in the description of his decision as thought process as to making his retirement decisions he deeply understood the financial runnings of the the standard there's no intent to deceive i agree there's no intent to deceive i did not sure the district court actually required that there was some in our language in the washer and since this was an equitable this is a decision  act and the district court has discretion why shouldn't we three manned for it to consider the factors laid out either in connecticut fire or elsewhere and why isn't that the right result here because i think about how do you define an acceptable conduct because if even if we concede fraud how do you define an equitable conduct and the diff definition i'm sorry to be long my question the definition the department of labor gave it seems to me at the very least there's an issue of fact as to whether the point of could mean that well a more a five is the only case i found that actually defines an equitable conduct in defiance and that will conduct as an act or already been in this room in the panel let me ask you how this works because you all have sat administrate of record to summary judgment which is the way arista claims ordinarily work but we're talking about a reformation right and so why wouldn't the plaintiff be entitled to some discovery it seems to me the playing of could at least depose people as to how this was put together why it was put together this way and find out even under your standard if we were to agree whether the actor o mission was deliberate in some way you're absolutely right and we did do discovery in this case you did the first time around meaning when did you do it post the remain and yes we did when we were the first time around we the case was decided on the administrative record the district court filled it held that there was no inconsistency between the s p d and the pitching plan document because the s p d informed mr pierce that he did not need to be actively employed and that was the basis of the district court's decision was there was no inconsistency because of the word active when when pearce appealed the panel disagreed and they said that the word active did not  shouldn't be used to modify determine ploy and that that we need to look at these other factors it held that there was an inconsistency between the s p d in the pension plan every man did it to the district court we did extensive discovery pierce took the deposition of the makers in this case of the pension plan representatives in fact that's where the testimony you're referring to mr banty you testified about known things not being written for normal human beings to read i took mr pearce's deposition there were other depositions tak room for summary judgment where it could be proper for summary judgment to be awarded to peers it could be possible yes if he had the evidence now the standard for mr pierce to get reformation is clear and convincing evidence and do we view the evidence in the light most favorable to the nonmoving party going both ways i would i think that's i think that's how they would work it's because i mean summary judgment in the arista contacts a little weird because you're usually dealing with the ministry of record but then why isn't there i mean did we all agree the plant was mistaken i'm just using this for factor test if it seems objective that if someone says you're not going to read it no humans are going to read the plan it was objective we ok to be mistaken the defendant seems to benefit and  i'm unclear about the last factor but it doesn't seem to me the defendant did anything to mitigate the har other input the disclaimer in the summary plan to us description what we took as your first factors was not to plan benefit i'm not sort of certain that that's true i don't think that there's necessarily any evidence that this isn't a situation where you have a company or person or your wallet or my wallet that the money's coming out of and these pension plans funds are sophisticated in how they're operated meaning it's funded by the company and none of my by by all means this this is not even in the record but i don't think we can assume that the pension plan itself benefited because there are funding requirements that go up and down and there's a windows that have to be funded in the companies responsible for funding it so to say that the pension plan benefited i don't think as we know that it didn't benefit we don't know one way or the other there why doesn't that factor have to go to some sort of trial even though the let me ask another question i'm sorry and that i'll be quite even though the district court used the improper standard in a valuating that's quite well i don't know that this we're using improper standard you recall the to match the judge said fraud or rather inequitable that the district court adopted it but then you had intent to deceive pretty early but but he also went on to say couldn't explain how an equitable conduct could be found we could point to no no evidence other than a violation of all that said we're certainly with this panel we're in a position or you are all in a position to apply what we all agree is the standard fraud or other neck rable conduct and there is no evidence of an inconsistent that you know the courts already held that but there were there were there were words in that s p d that we can't just forget that existed because you know i wasn't able to to convince the panel you know a couple years ago you know he did say actively employed he was not actively employed and is a sophisticated man mr pierce purports to be you know why he didn't think or say to himself gee i wonder why they use the word that we're actively you know there's something to be said for that now  overturn what i understand i understand that they completely one question that i had that it struck me that the district judge was not applying the proper standard to review a magistrate judge's determination that the overall when you read the district court's opinion as to each of pierce's objections he did go beyond those sentences and address the evidence addressed the magistrate judge's findings of fact as violation of a recipe so you know was a district court's opinion written in an artful way to explain the standard that he was applying it probably could have been better but did the district court apply the proper standard i think they did when you take a look at the substance of what the district court says you read past some of those sentences and make you think that the district courts is doing something that it shouldn't and then go on to read what it said after that and point out you know some of the some points he was pointing out deficiencies in the objections but they would always go on to say something substantive about the objective about the idea about the objection about the evidence so where these bring us to as for reformation is and where i think the district court came out is the same way that the magistrate judge did in her recommendation is that something more than a mistake is required and the only two something more something more would be based on america five unconscientious or violation of good faith that's that would be the something more a something more is also evident from the cases that that mr pierce cites here those cases involve additional affirmative acts to either persuade the participant or to hide the true facts from them there's no evidence this record that anyone attempted to persuade mr peers or that anyone attempted to hide anything from he admits it appears to bits that prior to his retirement no representative of the pension plan made any representations to him whatsoever regarding his eligibility for really early retirement supplement did he ask anyone about he said that he spoke with no one at the company he only person he spoke with about his retirement was his wife plan documents the only exception is a standard set out in boma care which is the traditional traditional elements in three additional ones here there's there's no question that the pension plan is in itself  do so pierce doesn't have element x s may have evidence of the second element of traditional stoppel which is awareness of the true facts which this court interpreted to mean that it contains an element of fraud which is either intended deception or such gross negligence as to not constructive fraud those cases that should be i think we all agree there is no evidence of intended fraud here but in terms of gross negligence those here again pierce admitted he talked in no one about his pension plan except for his wife as for the other woman her elements plan provisions that are now at the participants to determine eligibility that's not present here piers knew it wasn't or would have known he's not eligible here just by reading the plan so that all money does make an extraordinary circumstances is no evidence of extraordinary circumstance thank you  constructed for orders a breach of illegal duty or equitable duty which in spite of the fact that there is no moral guilt resulting from the breach of the duty the law to cures for children because of the tendency to deceive others violate public or private confidence or true or the public interest in regard to your questions regarding whether pierce ever asked for the on what is clear is that when he was first told that he was not going to get the supplement his immediate response not my response but here as was shown me where in the document you give it be it says what you say in response to that while he did ask specifically give me the plane and he said give me the documents were such the us they gave him a copy of the s p d they did not give him a copy of the plan was posted and i'll go right it was posted i hope yes and that he did not is before when he makes his decision not to take the buy out and at that point he did not ask for the plan he asked but it also shows that as of that point in time he was not in his mind thinking in terms of the plan i mean it's something different that the us ph d because he didn't say could be the plan he asked where in the document given the speed so if the s p d says go look at the plan if you have any questions and he doesn't there the two cases disagree and say the act a mistake is insufficient that's not correct in skinner the ninth circuit case the court  did not rely upon this leading information but i mean were there just like here in the ninth circuit case the summary plan description and there was a conflict between that and the plan itself upon the misleading information there were other comment but they did not hold that if you don't have a intent to deceive that or if you don't have something more description that plaintiffs rely upon is not enough to show fraudulent do so well that correct no i don't agree with that region give either of those cases all right  you're unfortunately your red light inside and so we will certainly look at the case itself and appreciate your argument thank you all for your argument the case will be submitted with the c