an individual can sit on the sidelines for twelve years watching others litigate the same alleged wrong now that's not the fundamental question in this case fundamental question in this case is whether a clear direct boos from federal court appeal federal courts of appeals binds you or klein that sees we don't think that from are one which i believe your honor is referring to in two thousand and six was a clear directive as to non participants and that litigation as to individuals for example who signed releases and as to individuals who did not bring claims within limitations period so when this court s is not ignoring a directive of the court the fiduciary is hewing to the relief ordered by the court ultimately as to the litigants in not just from or but as to others related litigation that has been going on where those individuals timely filed claims and there were no other defenses to those claims so our land would work differently as the the plan works differently as to those that do not have timely claims it's not a a benefits claim that was not timely filed it's not a fiduciary breach to deny a benefits claim where there's been a waiver where there are individualized defenses to a particular claim it's not a fiduciary breach to deny a claim based on to expect a participant to complain one thousand nine hundred one and they're not even eligible for benefits yet because the under the circuits press one who's not even qualified at who's ten years away from qualifying gets this mailing and they're supposed to study it and then bring suit and if the person were to bring suit would you not assert some kind of rightness the fans we would not assert a rightness defense and we didn't in the litigation that ensued right after the s p d was published some of the circuits precedent when an s p d clearly explains like this one did in one thousand nine hundred eight how an individual's benefits are going to be calculated that is a clear repudiation if the individual has a different understanding right after this s p d was published the from our pla was not a class case there was no injunction it was not dealing in that particular opinion with individual issues of relief like it did in subsequent opinions there were two different subsequent opinions dealing with the remedy and who in particular was entitle to a remedy and who was not entitled to a remedy so our position is as of two thousand and six when this court made the statements that it did and from or to by then mr test those claims were already time barred and by being already time bar there was no new cause of action created in two thousand and six by this court's statements what the pelleas position is and what the litigants position was and from or in the related litigation was that the violation occurred in one thousand nine hundred eight when this s p d was published in fact and from to the violations predated the one thousand nine hundred eight s p d because there were prior benefits communications that they believed did not properly explain the offset provision how it worked it didn't provide to your point judge and it didn't provide the average reader would notice that his or her benefits would be offset the way that the one thousand nine hundred eight s p d did and the district court in this case and all of the related litigation found that in one thousand nine hundred eight s p d was a clear of anybody's claim that this officer could not apply that was known to mr testa that's why his five zero two a one b claim for benefits was untimely according to district court and there's no reason to  his breach of fiduciary duty claim any differently in essence under the district court's rationale a cause of action would be borne any time there are statements in a judicial opinion even if those statements occur outside the limitations period  when was he really heard he was rehired prior to nine hundred ninety eight i think so this is the language from our court we hold the defendants failed to meet their obligations to provide advance notice and when the court made that statement your honor it was not considering things like individual defenses i e releases or if somebody had not brought a claim with unlimited us and we're talking about what the obligations are of a fiduciary who reads i get around that's not have to do shoes is supposed to operate your honor with respect to the flu she was not looking for a way to get around it the fiduciary was looking to see did the individuals at issue have timely claims there were no other defenses that applied and the conceded as to that group this ruling in this result in this remedy will apply however as to individuals like testa who didn't timely file claims or individuals who signed releases as this court later found out fro they did not believe the fishery did not believe that this ruling would apply and the court from or have if they decided to entertain equitable relief injunction to reform the plan for all planned participants that remedy was not sought it could have been under section five zero two eight three so there was no injunctive relief there was no relief as to non parties to the litigation and it's not a fiduciary breach again to deny claims where there are because it intended to apply the same rule to all planned participants i don't believe your honor i'm not certain but i don't believe that argument was made there was an allusion to a similar argument in the related klinsmann litigation where the the plan administ said as to individuals where there are not individualized defenses that it timely filed claims in their release issues the remedy ordered by from or will apply to individuals that are there are no defenses to otherwise have timely claims and the like so that's the argument that they made i believe in now the a pelleas have misconstrued that to say categorically that fip plan for she said they would apply the ruling across the board to anybody who's a pre ninety eight rehire e and that's permitted in the interest of its employees to accept late claims if it wishes and regardless a fiduciary is required to interpret the plan and what this court held in from or it was that the plan for individuals rehired before that date the plan did not contain that offset provision ache for do sherry would not continue to apply that offset provision so that's the fiduciary breach which is different than the disclosure dealt with his exact argument at the last two pages of its opinion they made the exact same argument the plan did in frommer it in two thousand and six because they said an earlier benefits updated the one thousand nine hundred five one had done the same thing as the  ninety eight s p d they claimed in that case that that case was time barred because the ninety five disclosure had disclosed everything and to make clear this is what the last two pages of from one said about that it said it's not time guard because you're making on glowing misrepresentations about the plan your telling employees rehired before ninety eight that this is part of the plan when it's not that's an ongoing violation the ninety eight s p d it disclosed absolutely that there was a phantom account offset it did not disclose that that offset was not part of the plan for people hired before ninety eight that's an on what the court said is that's an ongoing misrepresentation and it doesn't give them all the material facts they need to know but if you like i cut you off and i apologize that's for people who brought suit in the wake of the knights that's why the hundred that you weren't one of the ongoing misrepresentations that essentially you're arguing for it all until your client brings in two thousand and ten it's not a toll under the the statute only begins running when the person has actual knowledge this spring versus footlocker of all the material facts in this case all the material facts would be and their replying an offset that is not part of your plan telling them i'm just applying the offset is no different than offspring in offspring they told them we're converting your plan that may reduce your benefits in this case they did not tell them two different things either of which would be which would not establish actual knowledge they didn't tell them that they were applying an offset that wasn't part of their plan that was never told they'd been told that done that to this day so they never notified the beneficiaries of that fact and they certainly didn't tell them back in eighty eight i'm not going to apply any future rule and in fact they said the exact opposite their consistent position has always been until it wasn't whatever happens in from  will happen to you what and that's what they told the district court as well they said as fiduciary is this is what they were telling the court and obviously the participants had the same understanding we will do whatever happens in or subject admittedly to if people settle their case they don't need to do that but they said that as fiduciary what happens in frommer will be controlling in this case there was no need for classroom vacation there was there was no need for classification because arisa requires the plane administrator to interpret things uniformly if they do it for one person they can't do it differently for another person that be a breach of their fiduciary duty so it actually made sense not to certify a class and indeed when in kuhn's men they tried to certify a class just to make sure that in fact the xerox would do what the court had ordered the district court said i don't need to certify a class they have promised to me this will apply to everyone and the court relied upon that so it's not just the beneficiaries who were misled it was the district court that was misled and  record citation find in the amicus brief on page nine of the amicus brief there are three bold block quotes the best in my view is the middle one this is quoting from their representation of the district court the out clum of the claims asserted by plaintiffs mcneil and the other commencement plaintiffs in this case whether or not part of the beauty of class is controlled by the outcome of the frommer litigation and those are also people that didn't class because obviously the certification the class doesn't come after the remedy so this was a motion to certify a class to make sure that everyone that was rehired would get the remedy because that was after a rejection of the statute of limitations  e it was well the destruction of the argument that the statute of limitations barred the consuming claims they the district court found that the statue limitations barred three of the claims but not one of the claims so it was well it's not love the case because their position has always been that the individual person has to sue they never made the claim anywhere in their briefs that the statute of limitations would that they be allowed to raise a special metate sions claim as to those other people so that was a separate argument so i think there are two separate reasons we think the district court was correct that there was no reason for beneficiaries to file a lawsuit when they is are required to apply things evenly but we also think that the frommer two thousand and six is in itself demonstrates that because the misrepresentations were ongoing and i just want to quote the very last part of  thousand and six with a reminder that the standard is you have to have actual knowledge of all material facts the last words of that opinion such knowledge of an actual breach could only come with disclosure of the fact that the defendants misrepresented the terms of the plan in justifying the usage of the phantom account so in that case as here this court has already found that the statute only starts running when you make a disclosure that you're lying about the plan that you're applying a part of the plan that doesn't in fact apply to you so i think if this was the same case that would be law of the case this is not the same case as a related case but it's at least precedent and the reason behind that rule is the same as as was in locker which is until you know all of the material facts and in this case the central material fact is they're applying an offset that's not part of the plan then you're not an actual notice and then the statute does not start running if we agree with you with respect to the third cause of action yes do we need to reach the question of whether the  three causes of action were properly dismissed you only need to reach it if the from or case that was argued last month and is up granting them more relief and i am displaying that if i need to they've made plain interpretation and other arguments which mr test and then coons men which is another case that you will see if if those counts one two and four that was argued last month because the plan itself actually promises him more than new hire relief among other things and i'm sorry the relief that he got is just to be treated like a new hire that was the equitable remedy that the district court imposed in frommer last month we argued at length that that remedy does not make him whole it treats him worse as a new hire it contravenes the plan it doesn't give him the benefit just very briefly summarize that argument the plan requires that his benefit be calculated on the basis of all of his years of salary at his highest average pay if you treat him like a new hire you're not giving him all of the years of that service if you worked fifteen years and fifteen years he's only getting fifteen years times is highest average pay not thirty i think i understand you but i want to be clear if to follow up  good you do not have to reach the cause of action that were dismissed should we be hauling this case from i believe you should it will not do a statue of limitations because it doesn't have a special imitations or you want it could affect our case it  will affect your case unless you choose the only reason you would not hold it if you were going to reject it if you're going to affirm the dismissal of causes of action one two and four does that make sense the words you could do it what either way you want you could decide do i agree that they had actual knowledge of the district or dismissed three claims but kept one if you thought that seems right to me under the law you would not have to hold the case if you relief that will not make him a whole if the court in frommer's agrees with our argument that new hire does not make an employee whole does that make sense we've argued at length that now that new hire is in adequate equitable remedy in that case if they agree with us then in this case and that's why we cross appealed that equitable remedy would not make him a hole and we'd be entitled to more he'd be entitled to as we've always said in all of these cases everyone's entitled to the same thing and so that's how they have the house that's something that we might wait until yes understood two points very briefly i want the record to be crystal clear about these alleged representations in opposition a class or docket number sixty eight in the condiment case page sixteen this is what we said in opposition the plan a ministry  by law and his fiduciary duty to apply the court ordered benefits calculation and from or to all similarly situated plaintiffs including those in this action is to which other defenses do not apply on page thirteen statute of limitations defense was raised as well because of individualized nature of such defenses in response to class relief so there was no misrepresentation about the scope of what would and wouldn't apply and from or this was an incorrect representation of the record unfortunately secondly the supreme court in from or said that this plan for the remain honest mistake in how it tried to amend the plan prior to one thousand nine hundred eight so when my brother here talks about ongoing misrepresentations that this court discussed in two thousand to this court was discussing benefits communications that were in the court's view not clear enough prior to nine hundred ninety eight the footlocker case involved active concealment lying to your participants by saying your benefits are going to be better when they're not the c f o in footlocker was confused about his own pension benefits because he was misled there is no record evidence of that nature in this case at all the actual notice of this claim was in  when the plan communicated clearly to all this is the offset this is what we plan to apply this court all the lower courts held in this court's precedent holds that that is a clear repudiation and that's when a claim accru of this nature even if we were to accept your argument just as you just stated it isn't there still reason to wait for the decision from the preceding panel from whatever light it might shed on both of your arguments about the statue of limitations i don't think so your honor only from the standpoint that the new hire remedy that the district court ordered in this case and has already ordered from art we think is the proper remedy so we don't think there's there's a need to wait based on the remedy but i think we think that you can reach the limitations issue as it's supposed before the court based on the parties briefing in this case there's no particular reason not to tell them if the court is so inclined then