board because there was no five you sherry conduct at issue in the statements made during the period of time the refinery manager mr stillman is told the truth and even if there is spite you surely conduct here which you strenuously disputed when you tell the truth there can be no violation finally your honor there is no remedy in this case under the laws of the ninth circuit and the pronouncements of the supreme court your honor we start with some of the unusual facts that distinguish this case from every other serious to all plan participants on february twenty third one nine hundred ninety nine when the company posted all the information about the plan on its website plaintiff's label misrepresentation cases are made the issue was always questions about the plan terms questions about the plan provisions how will the plan provisions affect me here because the plan was already and completely sucked out and publicized to the plate that's the only issue at this point no matter how describe issue and that trigger issue is well i voluntarily terminated mr o'reilly statement on fifteen twenty third nine hundred ninety nine when he announced the plan mentions the plan but then goes on to say i know you're concerned about whether you will be in voluntarily terminated my local management will keep you informed about our cost cutting efforts mr o'reilly in the initial statement about the plan recognizes that once the plan is out there and announced then the issues left our eligibility trigger issues your honour's such as whether i will be terminated throughout this case mr stillman the refinery manager is somewhat large and his management skills are challenged by the plaintiffs at one point in pla stillman didn't really know how to run this refinery and in fact that his attrition policy could not make sense your honour's the whole what was set forth at the just record level the issues that we try was an employment case it was about whether manpower reductions had to be made at richmond and whether manpower reductions don't worry it will all be taken care of by attrition the district court looked at the facts made a factual determination as i understand it as to what that they should be and i take it you think that that was a clearly serious consideration your honor is a law and a fact issue but how does that it's a question of whether in his mind he's giving serious consideration to something that's eminently a factual issue your hon statements was talking about his beliefs about employment levels at the plant stand that but a point comes when he knows that the human relations people are going to be going to be decreased in his determination it seems to me what case would you rely on the say that's a legal determination that he knew at that time that something was going to happen in his plan or first of all your honor what occurred and what was found was ninety nine i will give my permission to send out a site reference letter a preference letter your honor only ask of the nine eight char way are you going to be do you wish to be terminated your permission to do that mr stillman writes back and says no i don't want to send them out he then later changes his mind and says send them out but in that email your honor he specifically says i am not committing any layoffs in h r which is under his control at the same time he also tells his h r chief terry boyle you are not being laid off finally he has an exchange with his absolutely clear that he had the control of whether there would be layoffs of a charge you're not answering my question you want me to repeat it for you counsel i'm sure i would help me a lot and i'm the one that has to make a decision with two others and here at some point after he had made that decision that he was going to offer involuntary layoffs to the entire richmond refinery yes sure there was not a point in the third week had to do with management layoffs and that sort of thing but they were also interrelated that it's hard to separate them out and they are to me under very that that sort of pushes things over to the to  trigger event whether you're terminated is not file you should conduct making a decision and discussing whether you will be terminated he even if the language used the term state package is not have the organization organizational capability at this time every one of these rumor buster remarked sure hundreds which focuses mostly on terminations it's conceded that the used b terminology every one of them uses words like at this time all of these descriptions are about mr stillman's beliefs rightly held beliefs about how to run the refinery nothing in the record demonstrates that anyone else had the power to run the refinery other than mr stillman one of the suggestions made is that out of context testimony from misrepresentation the facts of wayne are the company allegedly was going around lying to its employees when you look at verity and you look at cologne you look at all the serious consideration cases they subjective beliefs as to why involuntary terminations were not appropriate when he changed his mind then i think this is a critical issue at some point there's businessmen do they change their minds when riffs her there's always the point where somebody says at this point we're going to go forward on an involuntary terminations what did he do at that point right a good refinery manager that he is like a man concerned about the employees who work under here he immediately contacted his h r person mr boyle and said anybody who might be leaving our workforce it's possible that we're going to real mis characterizations of the kinds of things that were in evidence the questions that were asked and what they mean and how this program works the questions here were clearly about retirement benefits these were questions about layoffs in the record excerpts at one eighty nine at sec all of the questions are laid out there from the rumor busters the questions where are their plans for retirement package offer the questions were why can't we open up the severance program why exclude those who from site who want to voluntarily term each of the individual plaintiffs in a declaration also testified they were asking about a program a benefit program that invoke spins in very very clearly also the answers were not statements of opinion or conjecture these were clearly statements of decision mr c said that after two years of study it had been determined that they will let attrition take care of any of their downsides so as meat it's the driving philosophy of the of the company it is a decision consistent with mr steelman's prompts his staff and no less are they told the plaintiffs in plain terms quote that there will be no retirement packages offered  with the richmond refinery in the forseeable future the h r manager told one of the plaintiffs if you're waiting on a package you're wasting your time he told the mother there's absolutely no way that the richmond refinery will be participating in this program and moreover he went so far with one of the points to say no way in hell so these are clearly not statements of some tentative intent or some prediction about the future opinion these are statements of fact they're statements of decision and they actively misinformed the plaintiffs also with respect to who had the authority that implements i think there's a defining piece of evidence that the parties to look at here are chevron and it's policies or layoffs or what have you how do we parse that to well this is the distinction between the way made in bins made about the difference between serious consideration in which there's a point at which you reach where there real duty to disclose and what the court found in this case couldn't find a violation of the serious consideration rule he found active misinformation under wing and if you have the answer isn't to look under wayne for what act of misinformation  if you don't have a reasonable basis in fact for what you're saying that's a statement that's culpable in a recklessness level and that's all you need to show to show an active misinformation are that maybe quite grow into the issue of statements about crime but help us figure out what's the dividing line between statements about company policy and work rules and that's sort of thing which are not covered viruses right and what you allege to be covered here this is very interesting because this came up exactly in the in the very case they called all these employees together to talk about the rosy future of this sham corporation that they were sticking them all into and of course they didn't want to miss discussion they talked about the bright future of the financials of the company how the work rules would be related but they also directly addressed the benefits questions that the employees are there and what and the very court held that once you start addressing those benefits questions you put on and that's just totally wrong because the record at the record exists when eighty nine of the questions he was answering and those were the questions are are we going to get a retirement package off that's a direct quote these are the questions that my clients  these are the questions that they answer every one of these questions was not about other going to be layoffs these questions were what about a package now one of the sort of humpty dumpty isms that the used here was to say well these aren't like packages these are implicating downsizing decisions and this reminds me of somewhat of the things that both the majority opinion and the concurring in the sensing opinion warned about in bins you can't just shuffle around the names and stand unquestionably but one thing that they try to avoid at every juncture in this case is the analogy to bins in the way and they couldn't really be more clear one thing they're saying is that the package shouldn't be disturbed he wrote a very thorough of opinion and he in fact concluded that chevron quote chevron and mr stillman knew that this continuing message of no packages that richmond was false and yet continue so whatever standard gets applied here as a matter of law even if it was the old fashioned actual fraud we have to have knowledge of falsity the judge also concluded that that's exactly what was going on here and that of course is to be reviewed under the clearly erroneous standard but if three changes are made the cross appeal will be sustained one is a question of law and that is is there a negligence standard here to be applied or recklessness standard we standard with respect to the plans for the profile of the second thing is we believe that active information misinformation began earlier than judge also said over and over again with no basis in fact mr stillman continually conveyed that there would be no packages at richmond well it became increasingly obvious that this was utterly false and there came a point when he knew it was false there's no question that at no time did he have a point where he could represent the decision had been made on this subject and yet that's what he told the man prevailing plaintiffs and so in our opinion that if that that's a by the way you have to find it was clearly erroneous but we think it was because there's no point which you refineries and they were looking at it in very considerable detail and under the view that what we've got a very short time to decide this issue let's get at it so in our opinion serious consideration should start back then the specific proposal it was in front of the senior managers with authority implement the change they were talking about for purposes of of implementing it in the very short term future and so we think there was something there that and you have to remember on the this test is very important that this is something that the average reasonable employee would have wanted to take into account before making a retirement decision that's the ultimate test for materiality that's what the serious consideration test backs up on what they have wanted to know well i can tell you from the records you are as clearly my clients would have wanted to know that that discussion was going on because they've been told no no no no now they hear that their bosses bosses are talking about the v subject the very same subject so we think serious consideration should go back to that day if that is again several of the plaintiffs who did not prevail would prevail and with the court's permission two minutes left i can reserve three why is just a monetary reward it seems to me what the court ordered was an injunction to put these people back into the plan in appropriate status that's not a mandatory word is it your honor we would agree with that this particular plan is involved here and the district court ruling which the district court indicates is equitable is there a one package sum of money that's granted done that which was done but i don't know whether you don't know whether the record shows what benefits the participants got into the injection correct that i don't know whether the it would just be a lump sum payment or would it be a  continuous stream your analysis of the amount of money one single amount of money to be paid as distinguished from additional benefits or paid over a period of time well the department of labor its  analysis really didn't take a position on whether or not the award that was in fact that the district court came up with was in fact that could have all but i do think that it's a much easier case to say that it is an act of will ramit a if the stream of pa continuous rather than a lump sum if it's a lump sum of starts to look very much like a payment of money like my monetary damages but if a stream of payments starts to look more like reinstatement in the order i think that if if if it's the case that monetary damages are not available i think courts are going to be created to try to find romany's for beneficiaries and use phraseology that so i don't think a bright line can really work here other than with free to produce jury duty cases monetary award should be available as they were in the days of aquit i'm not going to spend much time on the remedy issue because i believe that that is very adequately griese i want to point out that this court both in bass and the clown can never pronounce mcleod right but it's m c l e o rejected in great west must be rejected here as well because under the teachings of the great west nothing distinguishes whether it's a breach of duty case what some form of contract place in fact m review on fact finding this clearly erroneous we believe that if you can't may become critical as to how we test the district court of whether the issue is legal or factual and of course that's why one of our rules is that in a brief filed in our court you must cover the standard review that was something that i i think would have been helpful to us i just point that out for your future appearances for us my profound