it is kirk and all right yes we'll make sure the caption is correct  originated as a joint venture called dresser rand company it was an equal or approximately equal joint venture between ingersoll rand and the dresser company dresser in industries in actually and they were participants in the dresser consolidated plan which we call the daikon plan which had a very generous early retirement subsidized benefit for people who left service with the company when they were between the ages of fifty five and sixty five in order to qualify for that benefit they had to continue their service with the company and under a particular much it's relevant to the outcome of the case but did did they continue to earn credit in other words as long the longer they continued to work for just rent was the their benefits get larger no no that's what i thought so this is just a question of their eligibility to get benefits that had been turned in the first place while they were working for really for dress or before dress or rand well no actually well while they were yes while they were working for a dress or before dress around and we would say there was those benefits accrued by then but they were they would get a generously subsidized early version of those benefits if they qualified by being fifty five years old when they had a separate separation from a sort of my question is service credit it was necessary to stop there being a separation from service and the separation from service triggers a couple of things that triggers eligibility to receive the benefit that they had previously ar but it also triggers this subsidized benefit if they are at least at least fifty five years and not yet sixty five years so the the key issue on the merits there and we've raised two issues one has to do with the standard of review the arbitrary and capricious standard and which is first in the brief but i'd like to go to a second if i may because i think that under either standard of review we should prevail because this court said in the miles decision which is quoted and cited at pages twenty twenty to twenty one of my principle brief that where the trustees of a plan impose a standard not required by the plants provisions or interpret the plan in a manner inconsistent with its plain words their actions may well be found to be arbitrary and capricious and that's what happened in this case in this case that the plan provided that an employee's service with d r shall be counted as continuous service under this plan the parties don't dispute that that operative language means that if the employees continued to have service with d r then then they should qualify for this benefit if indeed they met the other requirements for it what the parties dispute is whether continuing service a dress or rand company was service with the r after halliburton acquired dresser and sold it dresser share of dresser rand back to inger sol ran and they've had different justifications for why that stops service with the our but what they're saying at this point is that when one when when dresser was no longer an owner of dresser and it was no longer the company contemplated in the provision that the district court actually looked at language about a related entity which is in the definition in the plan and said that that's one way you could continue to get service credit if you're working for a related entity which is one in which a dresser has a substantial interest and this was no longer related in a related entity but it's without question that related entity language doesn't apply and you're talking about your human is that a related entity is a different way of getting right and you're relying on a different yes and i'd like to add though that if the the plan author had intended that you had to be working for a dresser for d r and by the way d r is a defined term it and dresser had to own an interest they could have said so long as it's a related entity it would be that simple but it's not in there we submit that the trustees have imposed a standard not required by the plan provisions that is you have to not only work for d r but d r has to continue to be owned partly by dresser and that's not in question excuse me the company still is called dresser and even after dresser doesn't own it yes yes it continued with the same name and it was not wound up and it was a partnership under the new york law and there's no question that because it wasn't wound up in the employees went to the say the same job at the same locations that they  were still working for the same company but the defendants are arguing that there's an additional requirement that you have to tease out of this somehow and it's not expressed there and i submit that it's arbitrary capricious to add an additional requirement that's not expressed in the plan then i would point out that dresser and underwent a further reorganization subsequently and which is now dresser i believe dresser and ink they reformed as a corporation and we agree that they're not any longer the d r contemplated in here that after that event that they there was a be the additional can a requirement is that dress around and continue to be owned in part by dress or company and that's not a requirement in the language of the plan  language in the plan the committee was interpreted when they decided that these folks no longer were eligible sure i think that the committee was interpretating what d dresser owned by how burton sold its interest at that point this two entity partnership went to being owned by one entity just by a resell that's not a partnership anymore as a matter of new york law mr rhodes asserted that the entity continued to wind up it but it was not a partnership because it would have only had one partner you don't think of a partnership as a sole proprietorship in effect the other language which judgment you asked about that i think is important emphasize is that in section twelve  three at the end it also talks about in point with d r or any successor there off and so section twelve point zero three which is the provision that is allowing the plan participants to continue to earn vesting credit after they were no longer dress or employees after they work for a dresser rand also contemplates that there is a distinction between dresser rand and a successor and that poses an interpretive question that section six point zero three of the plan allows the plant going to tell you what benefits they're entitled to and then later it talks about employment with d r so the language you really are relying on has to be the definition of dior whatever that is in the in the plan right well what we're asking or actually relying on is what service with d r mean it's let me step back for a minute and i think you started to ask mr rose this is well just to talk about what kind of benefit this is how it was earned under the plan and what happened when there were ownership changes in the pianist this is on a simple person i'm trying to understand this is about whether the committee has arbitrarily and capriciously interpreted language in the plan or whether they've added a new requirement as mr rhodes suggests and i'm just trying to get out what is the language that you are looking at and what is the interpretation that is being put on the language of the language that we are looking at is what is service with d r because the only way that these former dresser employees can continue to earn vesting credit is if they are performing service with d r that's what twelve o three provides and without twelve of three under ten twelve and one forty five i'm sorry be throwing out these numbers but that's how these risk cases go without without slover right service means they keep working that's working that's nervous lift the f d r so the question is what is do you are right the question is are they continuing to work for d r or as an interpretive matter is it some other one that it all goes to work in the morning he goes into a door that says dresser rand and that continues throughout that's who he's working for is dresser rand right that's true in terms of the sign on the door but what if instead of calling a dresser rand paul had decided to just call ingersoll at that point would it still be dresser ranter would it be something else this can all just trying on the name she has sued then a successor to dresser and if they changed what it was one possible interpretation of the plan is that the difference between d r and successor turns entirely on the name plate on the door that's not the only possible interpretation of the plan and the point administrator gets discretion to determine what the line is between at a reasonable interpretation what makes it  or they can't just say i'm interpret white to mean black because i have discretion to make it mean that no you can be a reasonable interpretation of course it has to be a reasonable interpretation what makes it a reasonable interpretation here is that it underwent a fundamental change interest in the interests of its owners it went from having two owners to one it went from being a partnership to being a single entity it went from being a general partnership organized under the state of the laws of new yorkers what twelve o three provides to being some other form of corporate entity and so a name change is one way to make that determination but that's not the only way to draw the line between what the record tells us that it stopped being a general partner you're saying it automatically does because one company now be immediately reconstituted without terminations or without the necessity of winding up the partnership affairs it was reconstituted at that point as a different entity now again whether it's a name change whether it's being reconstituted as a different entity whether it's becoming an l l c what is well so it just says the partnership shall be immediately reconstituted without terminations without the necessity of winding up any appreciable fare as it doesn't say reconstituted as what but again i think these are the sorts of questions that that the committee gets deference to determine it's not just a matter of the nameplate on the door and there are other provisions in this plan that show that the plan was in fact concerned with different kinds of corporate ownership if you look at section ten twelve for example wh e which is in the record a joint appendix for twenty eight section ten twelve said that a dresser employee ceases to be employed by the employer because of a joint venture creation sale transfer other disposition involving all or part of the employer's business now that doesn't apply to dresser rand because twelve o three specifically deals with dresser rand but what i when i'm the reason i'm relying on that language is to show that the plan contemplated that you could have a terminations as a result of a sale transfer other disposition involving the employer's business that's what happened here this was this kind of transaction it also makes sense to think of these early retirement benefits in that way the reason that employers set up these early retirement incentives is to to create an incentive for some turnover in their workforce some employers want that there is no reason however that company a would want to create an incentive for people to retire from company b from somebody else's business and so it makes sense that these things these kinds of early retirement benefits would be set up and would be construed so that you're no longer earning vesting service to create an incentive for early retirement once you're no longer working for that employer on the standard of review question the problem having yes it really is the same employer i mean it's it's changed it structure about its to the worker it's the same darn thing to the worker it's this i suppose is the same thing they're going to work in the same place but from the plan sponsors perspective it's an entirely different entity that the point sponsor no longer has an interest in them and so the plan sponsor when it set that up could have made perfectly clear what was going to happen if anybody ever sold it or something like that instead they seem to make it turn on whether you continue to work for d r indeed you're no longer really working it's a funny kind of thing right because dresser was assuming the liability for this retirement plan even though these people only work we're going to do is only half the are was also have fingers all and there's nothing th people are working for an entity that is half own by ingersoll and they are covered by a plan that is one hundred percent funded by dresser that's true but the so why are we thinking that dresser when it sets up this plan is thinking about the future and thinking well we only want to be responsible for encouraging turnover or an early retirement when we own it and we're getting some benefit when they're already subsidizing one hundred percent o that's fifty percent for the benefit of being because what dresser was clearly thinking about in this plan with the distinction between dresser and its successor so they were thinking about ownership interests and the interpretive question again becomes how you draw that line here and that's what to your point i think most recipes could be written more clearly you can always look at them and say you can always say why didn't they say it more clearly the point of arbitrary and capricious review is that the point administrator gets to make that determination and section six point zero three of the plan here gives the administrator in this case that discretion thank you thank your honour's reserved  earth under a new york partnership law dresser rand company continued to be in new york partnership after it only had one partner it does not have any effect on the fundamental nature of the strategically retreated from it and didn't take the position on this set of motions that i was up on appeal that taking in the argument in any event i would like an opportunity to send the court a post argument letter giving it the what was actually filed in the lower court on this very issue because i think it's dispositive of that particular argument i'd like to reiterate that no matter how they slice this about what the fundamental form is oh and by the way as our brief indicates in october of two thousand and four so about four and a half here is a later it did undergo a fundamental change it became a corp d r inc but until that time it was governed by new york laws a new york partnership and it was d r as defined and what's happened is they've added a requirement i'd like to just point out that this shifting justification is what makes important the point that when the when the plan committee does not actually interpret actual language and instead makes a decision to ratify a business choice and that's what the record indicates happened here and then are reasons for that decision get changed again and again during the course of litigation it's not appropriate to apply deference here's the question i have that when they make a decision whatever they call it whether they call it ratifying somebody else's vision or making a decision it is their responsibility as trustee is it not to decide that question in accordance with the plan it is but we shouldn't presume that they have done so well that's that's the question so what would they have to do in order to gain the deference of the orbiter increases standard when they have to write an opinion saying here's why we are ratifying the streets because we interpret the plan this way no you know and i don't think so but i think that answering this court's initial questions what language are you interpreting and how are you interpreting it would be  saying they'd have to write an opinion they have to say this is the language were interpreting and here's the interpretation we're giving it and therefore we decide as follows or perhaps a step short of that could be a discussion was had about the interpretation of the meaning of d the planets decided that it's no longer do we have to parse the minutes because the minute said they ratified a decision and did not say we discussed it first well that's the same who said we discussed the meaning of the plan and decided to ratify the decision then is maybe a little earlier sorry the second thing is is that actually what the what should happen is they should be pinned down to a particular interpretation rather than let their lawyers go all over the board to shop is something that the court might like that would have happened and i understand that you know we held i think correctly that you didn't have to do it but that would have happened if the mr remedies had been exhausted if someone had come in and said we're challenging this interpretation and then the plan administrator said no no this is our interpretation and this is why you would lose then we'd have such an opinion presumably but we don't because that was never done and what we've got is they made this decision without explaining themselves and you know some having a little trouble understanding why we should assume attribute to them i don't know what to decide that they didn't really decide the question and they didn't really interpret anything and therefore they don't get any any deference on i guess it's a question of how much deference are deference to what because the court in this case appeared to apply a standard where if the if the defendants after multiple tries can come up with a theory that the court thinks is plausible or if the court itself can come up with a theory as it did in taking something that both sides agree is not applicable in this definition of a related entity then as long as this theory that's plausible deference requires that we assume that's what the actual interpretation was and i think that the standard that the third powerpoint presentation that was given to the employees back and i want to see two thousand and two if i have this correct yes i thought the case that somebody all the employees a theory that sounds pretty much like what the defendant is arguing here back at that point as an explanation for why they were losing this benefit as they did indeed and that's highly briefed in the court below but it shifted by the time of the present motions to what the defendant siri at the time was that something they call dress or less rand wasn't the same as dresser rand once the dresser wasn't in there it wasn't really dresser rand despite the form of the company that was not what the what the powerpoint presentation