wilson the plaintiff here a true retiree's who worked for decades for northrop grumman and a company that became part of north roe and who carefully planned their retirements based on information that they were given year after year by defendant here at acting on behalf of northrop this is information in the form of pension benefit statements that are risks are requires fiduciary is provided to plan for jessop and so that they can know where they stand with respect to their retirement but the information that defendants provided was not accurate it's not even close and these really agree just misstatements were not uncovered until hewitt handed off its responsibility or was cut by about fifty percent and mr baffert by about sixty percent of all i have great empathy for your clients i really do but we're trying to construe the law here in the court and prove what we got let me ask you vick involved actually involved i'm somebody who worked for a company called parker pen that merged with gillette when that merger happened but that that was given detailed incorrect information about his benefits and some letters later on he received some incorrect information from a human resources person and the court relied on an interpretive bulletin from the department of labor to conclude that that person was not a fiduciary because that was just a mere calculation of benefits and that wasn't a fiduciary act but there is no discussion of whether that person had discretion area there were eighty and in fact that discussion makes it sound like that person did not and the st circuit also and i think this is important distinguish some cases from other circuits from the th circuit in the case called bauer men and from the those cases were distinguishable because in this case in that case and live there the participant had been given clear and accurate information at the outset so you know i would say there are sort of two bases for distinguishing levey you know that in that clear and correct information that that live a cad number one and number two the fact that you know there is no just gosh i know of no discussion of an allegation  that the human resources person was exercising discretion here to the contrary what we have a lad is that hewitt was given and exercising discretionary authority in preparing and distributing the pension benefit statements because it was doing so of course two requirements documents that are prepared itself and these documents essentially interpreted plan  let you know let human have carte blanche in preparing these benefits statements let me follow up on that question the how do you would exercise discretion if the calculation differ farmer according to the plan and pre determine formulae but it requires there's a there's a formula for sure but this wasn't a mere clerical or mathematical why not check well it didn't applying a formula for sure and there were imports from from the participants basically when they wanted to retire and when they wanted their pension benefits to begin and those were  sort of the x factor is that were imported by by the participants what he wanted needed to do and what it did do was look at multiple plan documents and decide how to credit what what what what the and cetera and they put it all in and came up with an answer not turned out it was wrong but the question is is it if and do sure responsibility if you have a matrix or a formula and they faithfully applied that actually employed by northrop in the nd go round as opposed to still being on the earlier company that was merged in and having whatever benefits that did that d is when they push the button the your people have told them i'm working for north of and they believed it and it turned out under the because he knew it and coming up with the matrix that it is not the employees the employees like i said only only enter very limited information but that he wants matrix so sad in this situation use they looked at plan documents and somebody interpreted them wrong and said you look at the final average earnings from the nd period not from the st period that's what we believe happened that's what essentially the denial of or the recalculation letters say happened you know that we are you know it's on northrop grumman letterhead incidentally but that we made a mistake in using your final average earnings from the nd period the call referred to two hats basically like a supreme court and one i was struck me with here is what had to be people have on it seems to me based upon our conversation thus far that he didn't exercise been you surety discretion and calculating these things it took a matrix got him put it and i think you've got a lot of other people involved in this as well who are affected by the very same thing how many people would be arrested be involved in this file asked me here your honor we don't know exactly how many but we think there are probably hundreds of people just based on how many people worked at t r w ok so question under the risk the law is what what role did hewitt play was it affectively carrying out a ministerial responsibility were it applied all the same incorrect information to everybody it wasn't just or some preexisting matrix it was a matrix that was built by hewitt and incorrectly based on you it's looking at plan documents and deciding how it applied in this situation isn't it just an error in the high three i mean they were supposed to determine the height of the reviews for these employees and because there were changes in the company you know that they were working for lies smith is asking you know why is that a function and not a ministerial function it seems like the st and tense circuits were very persuaded by the department of i've said the matrix the planned interpretation that landed hewitt to only count to count the year as the final three years at northrop and not to have cut off has the final average bulletin from the department of labor and and it's really what distinguishes it from the cases where somebody you know where we're at and t was simply taking using either information or a formula given to it by another fiduciary and not exercising any discretion itself the point is there always has to be a fiduciary involved in doing this and here the argument being made by the defendants is that no one the plan sponsored not the plan administrator and not the entity that they hired to give this critical information this pension benefit statements and disclosures in general to participants are at the heart of the statute particularly information about defined benefit plan that the other question just before your time is up here with respect to the section on all five claim i'm just trying to figure out what exactly  were there were written request but whether or not there were written or request under section one o five in a defined benefit plan the plan administrator has to provide a statement every three years but they can there's an alternative way to do that which is to tell participants how you can get these statements where we really saw the mind where did the plaintiffs plead that they made a written request because i was looking for that i could find it cross blue shield case so it has been acknowledged by this court but your honors let me go on because there's an additional consideration where my clients are concerned so my time ends are the plants  circumstances that was just a terrible situation where the plaintiff's mother was dying of lung cancer and based upon the misrepresentations as to what her mother's life insurance would be judgment to bring this appeal plaintiffs have the opportunity to show that this was a much more pervasive error and they chose not to do so so as we come before this core that either once every three years or a carton written request plaintiffs here are trying to latch on to that section one hundred and five of her wrists and say that this constituted a written request for people who go in all day long and look for their benefits  or deserve already that says that it cannot be little by little this is a little off point but congress is you know being asked to consider the electronic disclosures of the me and tore into scotia others that purpose it requires that we have encountered that point could if i could ask a question here just do i understand it correctly that when you say they put in various put data is it correct that they received nothing back from hewitt other than the whatever it was on the screen i guess i had the feeling that they had input some data and then hewitt said you know here are your benefit based on some particular data yeah yeah and every time that there was a request they stamp your assumptions but again you're on hers you can't be that going into a benefits calculator this is an unfortunate situation involving two people we know of no more than two people here in one of the you know plaintiffs in order to hold my client responsible under the was performing according to the plan and arista there is nothing in this complaint here on hers with respect to that there is no allegation that the appointment was imprudent there is no allegation that my car and didn't meet with hewitt and reasonable interviews and again your honour's i point to the fact that this involves two people so it is not the system you know a ministerial calculations based upon assumptions that were put in by the participants themselves let me ask you this sir ms rozen indicated that when the highlighted that this was merely an thank your honor yes they did it not only highlighted that it was an estimate but it noted that there could be changes from northrop and in fact there were that these were estimates at least with regard to two baths or and that was true for every time that there were in puts put in and and you know production a report coming back out that they're not so i'm trying to figure out how this case different from all i appreciate that your honor and i think really the pulse and the knowledge is that you know for preemption it's not just and if so how and you look at the case called why and if so then there is in fact preemption and that is the case here and that there's no recovery except for the plan ultimately what they the plaintiffs are pellets here are seeking is the benefits from a plan and so as you can extract the state law claims from that reality the broad preemption that was has been acknowledged by many many courts to apply to a recent claim that subsumes those state court claims when you said they're only seeking recovery from the plan it seems to me that at least in one of the set of the claims they are seeking recovery from you otherwise you wouldn't be there would you yes and i i'm sorry if i was in artful when i think the plan i mean based on the planned home they are there seeking benefits from a planned meeting is a description of the benefits as opposed to an entity the plan i just want to be clear i'm making that distinction and because they are basing it on the terms when dealing with the interests of the planet is the position no matter what kind of mistakes you make i don't know that i would say that that broadly but if the claims oh if they claim to have the terms of the plan as a necessary factor in determining whether or not their fly ability to think claims they would be preempted i added that in the us at this point as i understand it they're not claiming that the correct plans of the term the correct terms of the plan were not applied they're saying that the plan is just fine it's you folks gave us bad information which caused us far so if they were sane and we should have gotten something else from the plan on that arm you'd be right but they're also as i understood it their claims against you would accept that they got treated fairly by the plan itself when i wrong about that i don't think they allege it that way quite you know quite frankly your honor and i think ultimately what they are arguing is a centrally an idea that the that can be made whole that they should be provided with what they determine to be the amount they think are due based on the plan terms and they wouldn't get paid if those amounts to be made whole without a plan and therefore they cannot didn't get what we were entitled to under the plan we didn't get forty hewett told us we would get and that has caused this farm death to prove all of that in stable in state court of course not their claims would be successful or not would necessarily be based upon the terms of the planet itself and and what that what benefits they could in fact and dissipate receiving i think in order to argue a sort of pariah a professional negligence they would still have to go back to the plan and they'd have to go back to the application of the terms of the plan and so like it or not the way congress created a risk it has an extraordinarily have your honor and i personally find the discussion very central i think i'll start st actually with that preemption issue that that you were just touching on i think it's quite clear that paulson does control here and not the white house or wise decision and the reason is obvious from paulson itself which talks about a relationship test when you're looking at a recipe i am sure and the reason the the claims and why is were preempted is because they were they involved misrepresentations by the employer to the employee where isn't paulson it was a rd party so that a rd party service percent they should have said you know this this statement is should not be relied on for retirement don't rely on it to retired check with your around you know an actuary before portal and request benefits and that's what they did that their these britain benefit request is actually a red herring because to some extent because it doesn't matter for the three year requirement whether you make a written request that's how that's