argument as well as the post judgment motions if that helps i mean if you can boil down this case to a simple argument on behalf of the pelleas the plaintiffs in the case what they would like you to read cement one to mean that accrued benefit equals normal retirement date so every time you look in the plan document which as the court knows you have to read it just like your contract every time you see accrued benefit you see the term normal retirement age that's not true accrued benefit is the starting point when you when you determine the amount of a benefit provided in the plan for the participants that's where you start and then you need additional information you need the benefit commencement as well as whatever benefit that the participant chooses and if you look at the plan there's if you accept their argument you would be reading surpluses or conflicts into the plan document which we're not permitted to do for instance if you take a look at and think it's four point two of the plan document this would be the furred normal retirement if you read under that definition it actually states that a participant gets his or her accrued benefit at his or her normal retirement date and then it goes on to give you some additional definition or according to the a pelleas you don't need that additional phrase ology you could have stopped just right on accrued benefit so if you accept their argument you're you'd have to read into that particular point in additional words and i mean if you go just simply to the definition section of the plan document you don't need normal retirement date to be defined according to a pelleas because you've got accrued benefit accrued benefit equals normal retirement date in fact it does not and if you go on and look that we have argued from day one day the ploys of trans america well but there's isn't there at least accomplished in the record if there are certain employees just being directed by someone to do something without really any understanding about the interpretation of the plan pallies position is that mr long was the one he was kind of the poisonous tree that this whole thing started from their position as mr long as the one he's the only one that read the amendment and he's the one who drafted this internal summary document that all these other employees use but if you actually look at the record of them in them we pointed out in our briefs the deposition transcript from mr long that's not what he said what mr long said is that this was a period these are peer review teams and each team had different obligations as part of this part of this entire project and one thing we did point out and i think in our reply brief that what were they peer review excuse me what were they peer review they were peer review in each other's work that's by definition what a peer review is you what you would take you right so that's what does that have to do provisions aren't they just crunching the numbers based on the directions they know because there's there is no evidence that these particular individuals in these different silos as the term i would use did not read that the term i would use in these six tell excel spreadsheet was which was used to kind of back up this benefit calculator and they were having a problem because every time they put in an individual who didn't who didn't qualify for early retirement in early retirement all of the all of our clients qualified for it which means they can get their benefit as of october first two thousand and thirteen which is the benefit commencement date there was a problem because if you use that employee that didn't qualify for early retirement they were getting a zero factor because they didn't qualify they couldn't get it and so there was an exchange here where miscasts who does have a copy of the amendment and it's a miss is calling off the question and this is on page four forty one of the of the record she asked the question is that going to give some enhanced package or should they defer the b c d which is the benefit commencement date to n r t that would be normal retirement date like regular t v the response from mr lawn is the plan was amended to me an immediate lump sum in normal form annuity even if they're not retirement eligible so he's saying yeah look if you're not if you're not early retirement eligible you still have a right to get a benefit automatically on october first two thousand and thirteen well miss kat gives an equation as to why she thinks she's fixed it she thinks she's fixed why there's a zero factor for these individuals that don't require a don't qualify to early retirement and she says she gives the equation then she says or would we miss out on including  the which is early retirement factor subsidy in the in these values and so what she's asking is how does all this help your case because even if you were to we were going through your argument as all these folks were pursuing a calculation of benefit you represent they should have for your clients but on the turn face of the plan the plan is a lot ambiguous what differences in the way is the plan has to be interpreted in the plan has to be applied is the plan as written i would agree with your honor and that's exactly what these folks that they were reading the plan they were interpreted the exact same way we that were are going to be untrue but right so but if that interpretation is contrary to the terms of the plan what difference does it make because i it's an manifestation of the parties and town the parties that drafted this particular amendment these are the mean these so if we should conclude that the plan doesn't provide that where are you and i think i think if you roll that are our business should be if that's the ruling from this particular court it would be going against the the intent of the parties who drafted this particular in the right way if we look at the plan documents right yes ma'am so if the plane if we determine that the plan documents don't think that then what is the what's our holding don't you lose that i believe so we would lose if you really if you read the plan document as the trial court did which we can we can talk about because i believe the trial court was confusing that on one really important particular issue which unfortunately i didn't pick up until a pair for this first calculation of mr bryant's lump someone's incorrect it's because they used a b c d date of october first two thousand and thirteen well that's really important because implicitly what the court is saying is if you don't use that you cannot use october first two thousand thirteen as is b c the date if you're going to get a calculation that supports the appellee well interesting in as you know in the brief filed by the appellee they now admit that the benefit commencement date for the lump sum distribution was october first two thousand and thirteen so they basically just gave us the factor of the admission that the trial court needed to rule in our favor because that's what she was saying and she was saying look this is where the mistake this is where you're wrong because you're using the same b c d date october first two thousand and thirteen as the different annuities that were provided for these clients and i believe it's on page nineteen or twenty of i believe it's nineteen over of a ruling and where do the lees say that the district court it please the court where he resigned i represent mr smith i'm here to make two points to the court today the first is that the court erred in granting summary judgment in favor of the plants on the defendant's equitable stop defense and to that the court granted a remedy that was not equitable as it was required to be under equitable rescission equitable a stop was a defense where a fiduciary makes affirmative misrepresentation it's undisputed here that there were affirmative misrepresentations made to these due to these defendants in fact the district court held that the this breached the plants produce your duties to the participants the issue is whether in the district court found that the defendants failed to meet meet the four traditional point prongs of an equitable stop of offense we contend your honour's that in fact the defendants did meet each of those each of those prongs first the plaintiffs knew the true facts they knew if you listened to it according to their version of events they tended to for amendment one to accomplish  and therefore they are charged with that knowledge the transamerica also clearly intended the defendants to rely on those representations to the defendant calculations of their lump sum benefits because they were intending to induce them to take retirement the defendants there's no evidence that they were anything but ignorant of the true facts in other words what transamerica apparently intended other than right wrong and each of these defendants your honor showed that they incurred injury by making a a election for a lump sum on the false premise that they would achieve that they would realize a certain benefit or think given an opportunity to retract that and take the stream of payments that once the error was this close they were provided a second election form your honor that also misrepresented the relative value of the lump sum that they were being that they were that with the corrected information they could have elected to well the first form was invalid if they're going to misrepresentations were majorana but in terms of the last one couldn't they have elected that iraq  that claims is the correct benefit and avoided any excess tabs they would have returned the funds yes your honor but they would have your honor yes they could have but they would have real less than the full value of their relative of their accrued benefit what they had signed on for was one hundred percent relative value of their accrued benefit and in the case of mr smith for example he clearly gave up a job that he was offered it to transfer to a dock the syllabi in south carolina which would have come with further benefits and salary he would not appear like mr riggers to fit into a separate category from all the other lives yes your honor he does in this regard his his evidence is a little bit clearer as to the type of damage that he sustained is it is it undisputed or is that an issue that would have to be tried with jury as to the authority of the individual who offered him employment your honor i we contend it's undisputed the only evidence that they put forth as to whether or not the person who made the offer was authorized was that was of mr seals who said he couldn't well he was the supervisor of control systems who it is on rebutted had the authority to the hiring and firing to authority at that facility for positions that would have mr smith would have filled he also it's undisputed advertised  some time in september so we don't have anything and no evidence about that i mean when will the job be effective and that sort that's true but neither is there any evidence from trans america or the plaintiffs that they would not have honored the offer that was made to mr smith the question is whether or not his reliance was reasonable and to his detriment he certainly had a right we believe to rely on the offer that was made to him given that he was told the job was his if he wanted to take it he did not want to take it given that he was being offered a generous retirement package of a retirement package that had x dollar value which mr smith repeatedly investigated and inquired about while making his decision whether or not to accept an alternative job and get back in south claim so i think both would work your honor i think that he could recover under surcharge and equitable stop we believe that he meets all of the elements traditional elements of equitable stoppel and we think that he certainly would meet any additional elements that the trans america would like to this court to adopt from other circuits i don't mean to say that the court should do that but under the circumstances he was as diligent as could be on behalf of himself and others he was inquiring the accuracy of the information that was being provided to all of them for the purpose of having them decide whether or not to go ahead and retire or do something else or take a lump in mr smith's case or take a honor there was no such admission let me just be clear the and i think there's a scrambling of the egg that's going on here louder yes your honor i apologize i think i believe that there's a bit of a scrambling of the egg that's going on here in that there is no dispute that the lump sum payment was paid out in the october twenty third team timeframe the early retirement annuity for at least the specific retire these participants would as an annuity have started on on their early retirement date that is the date of their terminations where the egg is getting scrambled is that the early retirement annuity is a monthly annuity it's just retirement benefit that that is age sixty five you begin to receive a monthly pension annuity fifteen hundred dollars a month to have two thousand dollars a month whatever the case may be there's also early retirement provisions in the plan that provide under certain certain circumstances you may retire early you can retire early and get your accrued benefit but you have two choices you can wait to get that accrue benefit until your age sixty five or you can take it early in the form of an annuity but it is subject to certain reduction factors because you're taking it early so those are the the the new would be circumstances and there's a third here in that the plan provided that for certain retiree's with certain age and years of service they could retire early and get the the a new would be at the early retirement date on reduced by the reduction by the early retirement reduction factors all of this has to do with annuities no where in the plan does there exist until amendment one a lump sum benefit so the question becomes what is the lump sum benefit calculated based on is it the regulations basically say your honor that you have a choice to do it whichever way you want you can pay the lump sum and subs unsubsidized which means you're calculating the lump sum based upon the normal retirement annuity at the normal retirement date or you can calculate the lump sum based upon the early retirement and new woody and the difference is obviously if you're going to take a lump sum cost equivalent of a monthly benefit say fifteen hundred dollars that doesn't start until years from now the cost equivalent of that benefit today is lower the value of that benefit it's not going to be paid out until fifteen years from now is lower than it is then if you took the cost equivalent of a benefit that was immediately payable the early retirement benefit and the treasury regulations you're referring to your honor give the plan and confirm that the plan can do it either way and that's what's called called a subsidized lump sum meaning you're giving them the benefit of the early retirement annuity you're calculating it essentially early in the lump sum or unsubsidized which is what this plan intended by amendment one and the way we get there sooner so your  position is what treasurer regulations permit what land mehmet number one correct the treasury regulations confirm that you have have the choice so where's the egg being scrambled here retirement date but it's a new new payment it's not a it's not a lump sum entitlement the lump sum in tight on all comes from amendment one and amendment one says that the lump sum will be calculated based upon the actuarial quit meaning the cost of value at the time of the calculation of the accrued benefit and these are in initial caps these are defined terms in the plan the accrued benefit defined in the plan as being the normal retirement benefit that is calculated at the normal retirement date and all you have to do is walk through the amendment and tie out the the initial cap terms to the defined terms in the plan as the district court did or you make that sound so simple so what happened i think what happened is that in the scoping memo that the that the administration that the administrator person sent to the administrative team he did not make it clear and he admitted as much in his deposition that he messed up and did not make it sufficiently clear in the scoping memo that this was in fact an unsubsidize honor the only presentation and this is in the record that was made to the actual plan the committee of the dac pension plan was in fact an unsubsidized lump sum benefit and the calculations that were amendment and it's also undisputed that the person who was responsible for the communication with the plan in the presentation to the plan as to the value of the lump sum in the way it should be that's where trans america comes into the case of the third party administrator and they're the ones that actually implement the amendment but i thought i think it was you judge c s by apologize if i'm getting it wrong somebody asked well what effect does all that plan is an ambiguous then it is dyno of overview and if it is in fact unambiguous the terms of the plan must be implemented it doesn't matter what anybody else thought or what occurred downstream i implementation process and just to give you some perspective this is not a situation where there was a plan amendment it was implemented people were paid and then ten years later somebody decides you know after a new administration at that what you were it is straight or did demonstrate what it believed the plan provided and then it changed its mind and i thought that this document or a concession that they say you make in the reply brief in your response to bree supported that you are still not sure what that concession i or how that fits into the picture i'm shooting in the dark a little bit your honor because i don't agree that there was any concession that would have a material impact on the outcome of the case talked about enough so that i thought somebody that was intimately familiar with this as you are would understand what he was talking about your honor i thought what he was talking about was that that we there is no dispute as to when the annuity commences under early retirement for the early retirement benefit and there's no dispute as to when the lump sum would be payable they were payable at the same time the issue is the actual world quibbling value how you calculate it i want to you walk us back through in your view what the third party administrator did that was wrong and how you came to fix it as you see it so your your honor what they did that was incorrect was that they calculated the lump sum benefit based upon and and and they immediately corrected it to a point that some people were not even yet paid out the law some benefit others were and they returned the overpayment this did not impact just these five people it impacted a rather large number of people who were in various circumstances under the plan at the time and everyone else has paid it back is there any dispute your colleague indicated that even with respect to the right t an annuity after the correction was made there was some mix up with respect to the calculation but is there any dispute that at some point all of that was cleared up and these individual retirees had the opportunity if they said they wanted to elect the same the annuity as opposed to the lump sum no dispute on that at all your honor the relative value calculation for which there was an error was corrected five days later and the folks were given an additional sixty day window in which to make that benefit which is that they should have paid back the overpayment so as to avoid any type of risk of excise tax and they were warned about that in the letters that's beside the point but that's what should have happened and then they should have filed a claim for benefits with the benefit committee where they would assert that they in fact are entitled to additional benefit under the lump sum option and that they should be given the opportunity to make an additional benefit election those are two quintessential claims for benefits under five or to a one b we'll have to say that when i read the initial letter that your third party administrator sent to these individual retirees i would have been offended by the nature of the letter i had no explanation as to why a mistake had occurred and basically said pay up or else we're going to put you in collections that's not the way i think to avoid litigation so what that's what that's worth i understood your honor but the point being that the these the participants were not without a mechanism within the plan that is the plans administrative process to in fact contest that they believe that they have a claim for what about  e seems like mr smith is in a bit of a different position so just to be clear and to calibrate the court everyone at least based upon facts understanding everyone under the at the cape fear plant was being terminated it was a mass layoff and this lumps on benefit was being offered in connection with that layoff mr smith is in a slightly different situation in that he's claiming he could have gotten another job within within back judge flat again found that that was too speculative because the defendant below did not provide adequate proof that there is that you don't have any evidence in the defendant below was never able to establish any evidence that this job was actually filled and that's what judge flanagan was referring to when she said that there was no there was not an adequate demonstration that there was actually a job here that was filled so mr beck may be absolutely correct in that it was his plan to offer the job to mr smith and that was the plan that they hatched but the defendant below never established that there was actually such a job and that it was filled and it's against the backdrop of mr smith who received a substantial so operation payment in connection with his terminations north of one hundred thousand dollars  and who would not have been eligible for the warm some benefit if in fact he did not take the election what is also absent in the record is any type of demonstration of harm that in fact  in light of the revised benefit calculation he went out and looked for some other job or somehow you know thought that he needed some other employment it's completely absent in the record so i think the finding below and the position for which we would advocate is that there just isn't sufficient evidence that there in fact was a position that that mr smith could have filled and at the end of it all why did not create a factual dispute the chairman because i think the defendant below needed to actually establish that there was such a position they established that mr  back and mr smith talked about such a position but they never established that there was such a position and we put in an affidavit that indicated that the x workers reflect no such position and that the head of human seems to make something of a case that there was a job there and it was open and that he was offered it and he turned it down as of the representations with regard to his retirement benefits and the distinction i'm making your honor is that in the face of the seals declaration which is from the human resources person who would be responsible for actually approving the transfer that there was no he has no recollection of approving any transfer for that position and there's no and they had no record of that position so that that i think is where the offered me the job that i declined in reliance on the original representation is about the lump sum amount that support purportedly is quoting one thirty one paragraph one twenty two or twenty two and what does that mean i think what the judge below is is attempting to articulate is that he he was not able to establish any causation that in fact he did not get a job because overpayment never offered me the job that i declined in rely on the original representation about the lump sum amount i just don't understand that i think what she said i think what the judge below was saying is that that's a quote from defendant's exhibit one thirty one your honors the the only final point i would make is that with respect to the amendment of the judgment it should be an abuse of discretion standard there was in fact a second benefit election that was offered with the correct and if i misspoke i apologize as i look back in the briefing from my colleague i don't see even a reference to b c d date he uses the phrase they use the term immediately but if you look at what his client has represented the smoking gun it mission in is that right i'm getting there there is your honor if you look at it it's in the record it's on page two a one in this is the december sixth one of the and and it's also referenced on page forty one of our original brief and what we were citing to is the the final correction letter that was sent by trans america to these particular folks in mr bryant an example and it's a it's a letter dated december sixteenth two thousand and thirteen and this letter goes out to describe to mr bryant and as judge to point out they finally gave them the information as to what benefits they qualified for instance in this particular letter it says the benefit commencement date is october first two thousand and thirteen and that's the same benefit commencement date that they used in the calculation showing mr bryant this is what you'll get if you pick an annuity in this is what you get if you pick a lump sum s unless counsel for the pelleas now is going to refute the admission of his own clients based on what they're containing is the corrected election for him then i believe it's an admission that the b c d date is october first two thousand and thirteen and again if you go back and look at the briefing they continue to you use the word immediate and the word immediate in the amendment means october the highest that held it to you and your late because you as counsel as my colleague ed said they believe it shouldn't be equivalent cost value it should be less if you pick the lump sum you get less well if you go and look at them and it doesn't say that it simply says you get an actual equivalent of your crude benefit accrued benefit again as your starting point you start acc benefit and then you figure out what distribution form you have and then you figure out what your p c the date is and they're saying it's october first so if you've got if they're offering to these clients only qualified for two things they qualified for a single life  with when the benefit would come mantz but that doesn't tell you anything about how you calculate will according to a client their client it goes according to the letter of the sent to mr brime in december sixteenth the language they excuse me right on the top there it's actually the second paragraph on the top starts the original lump sum was calculated as the actual present value at your b c d of your single life annuity as shown in section the of your retirement benefit application  air or the second paragraph is telling mr bryant what they did originally saying hey we use your b c the date the start to lump sum present value calculation then you go up to the first paragraph and they're saying this is what we should have done what we should have done it says and they both did it they're saying we should have calculated your total monthly accrued benefit to met seen at your end already your normal retirement date that's the language that should have been in amendment one commencing at and if you go and you look at the see how this is helping you contradict the calculation of well it does it it does contradict because that language is commencing nature and already is not in amendment one that language isn't there in going back to your question your honor when you're asked i think their position is then have to be because it's in the plan well wouldn't be it wouldn't be equivalent cos value you have to compare the two options being provided these particular participants and they have to be equal they have to be equivalent cos value the argument is that it isn't or stand it your argument is that the lumps and the annuity payments must be equal not that the lump sum is act chosen right away we want the annuity and that annuity would have started october first two thousand and thirteen the amendment allowed them to also pick a lump sum which would start on october first two thousand and thirteen the actual equivalent definition requires that those two options are the same cost of the plan i mean it goes back to what harm is here i mean there is no harm in the plan because if our clients if you were on our favorite our clients are allowed to keep what was provided to them it's the same cost of the plan because if they don't show  guess what the treasurer regulations contemplate the treasurer has no incentive on the half of a plan sponsor to offer something that's subsidized in one form which is the  which the code requires but unsubsidized in the other form which is the lump sum that the planet minutes in which the treasury regulations say you're specifically permitted to do that and it doesn't offend code requirements for actuarial equivalence you're correct we've got to do it correctly it isn't the treasurer regulations don't require that you you have to give them you get a discount on the plan that's one option you can do it that way absolutely we don't dispute that but you have to do it properly and i think i think you're i think you're correct if what you're saying is that the plan would have the amendment would have been better off had it explained what it meant in the letter that you just read absolutely but that's not necessarily required and the language of the amendment accomplishes the same objective and what i heard your opposing counsel say is that if you looked at the definitions of the plan for accrued benefit and the like that that is effectively means the same thing as what they say it means in this letter but what he didn't answer is if you accept that argument then how do you explain for instance deferred normal retirement deferred normal retirement has the phrase accrued benefit and at your normal retirement date so if all you have to say is accrued benefit equals normal retirement date you would go to a definition of planet doesn't it has extra words in it you can't read it that way when they drafted that section the planet i believe they meant they want to give effect to every word they put in the plan so if you accept their current argument which is a crude benefit equals normal retirement date you don't need those additional words and if you go to look at what the labor secretary said is in it it caution plan to say look if you want as you said your honor if you want to do a lump sum and you can you want to do it at a discount you don't not provide a subsidy we're telling you what you should do is provide that clear language in your amendments when you do that and they didn't do that here in there and if you that's correct i mean it i mean the knowledge i would i would say your honor it's like oh we should come in your plan saying hey we think you should do that to pretty up pretty good indication that you should do it that way to do it properly they didn't do it properly that's the problem here if they if that was their intended originally to do this at a discount they need to add proper language in there to notify all the participants that this is the way we're going to do it just like they did in the they finally did in the letter after the fact your lines wouldn't ordinarily be entitled to write correct so this was a