thank you your honor may please the court this second case concerns whether the board of trustees of the central pension fund can be held responsible for the for what richard lopez the welfare fund employee  significance of those facts here the records undisputed that the pension fund this was not a a one off incident incident where the pension fund just  marbury the benefit supervisor at the pension fund stated that it would commonly happen that a member of a local or a welfare fund would call state that a member was coming in to discuss retirement and the pension fund would send the benefit estimate to the  local or to the the welfare fund person to to have available to make sure that the member had all the information available to them about benefit rights should they retire u nder those circumstances  it's eminently reasonable that that creates the impression in the member it's quite reasonable that a member of any number would think that the person speaking is speaking at the local or in the welfare fund is speaking on with the authority of the pension fund the principle of apparent authority is that those that that's true yes and that that might be true and you'd have an interesting argument if mr lopez had said he hears what the pension benefits are going may have to speak for the pension fund about the pension plan he didn't say anything about the pension plan that's relevant or that was inaccurate this relevant to our problem she knew exactly what was the case under the pension plan she had accurate information about that it had been provided by keegan or clean and earlier no one's contending that that was wrong except insofar as you have this retroactivity argument there's not really an issue about eligibility is and what the pension options are the problem is that mr lopez an employee of the welfare fund gives iranians information about the welfare fund and that leads goddess to make an imprudent election about what kind of pension to apply for whether to put in the retirement papers but i'm having trouble understanding how the pension fund could be responsible for that they didn't authorize their president to speak perhaps let's assume they explicitly said you can give advice about pension benefits your guy but he didn't do that he they didn't want to rise him to speak about welfare benefits they don't know anything about welfare benefits they're the pension people why is his error about what he unquestionably has authority from a completely different principle to speak about affect the liability the pension fund first what he said was he warned her against filing the pension application but he did but he omitted to tell her that if you don't file the pension application before your husband dies he's going to lose he may lose a large he may lose you may lose a large survivor the larger survivor benefits that he has still he can only provide if he files the application before he dies if that's if that's the problem if he if you're saying he  gave implicit misleading advice about the pension fund then we have a more serious becker problem because no one's contending that the pension plan was unclear about how the fifty percent benefit work with the plan some if the plan itself the pension plan does not allow benefit applications to be filed after a worker dies if that's what the plan itself provides the s p d does does fairly it does fairly say that the question is whether the pension plan itself provides for that the pension plan itself as a two step process that seems to require that first participant elects a form of retirement and then a form of pension benefit so even if the excepted the pen the retirement application that frank signed before he died i don't understand how emily could complete the second secondary step up or set out in a form that the pension that  submit is untitled by law that's and twenty nine u s c ten fifty five to receive a benefit in the form of a joint survivor new money unless the spouse waves that in writing that's the retirement equity act amendments now what happened here is that the pension plan was much broader than the recent minimum requires it provided more options like a one hundred percent that had to be elected the benefit itself when  if lopez was had the authority if he was an agent of the pension plan and he told her not to file the pension application and he didn't give her the opportunity to understand that if you don't file it you're going to look you can lose something the pension fund can be can be on the hook can be that there would be a breach of duty if that was so coercive that no reasonable person could have done anything but follow lopez's instructions if it's inherently coercive then as when the plan sponsor interferes with your filing the benefit application and here the benefit application had to come in first and then they sent out the estimate form then you let the estimate form and then send that that back in because he if it's so in her if it's so so interferes with the filing of the benefit let's reform he stop the process and both the failure to file the election form and the application arise out of what lopez told her and that therefore the argument is that should be excused if the failure to be interference with the completion of the process results in that being excused the filing of the op that gives the trustees the authority to where the terms of the plan itself know if it allows the court to excuse the filing of the benefit application filing the application is contingent condition precedent and the election former conditions precedence of the obligation of the trustees to pay the benefit in the elected form when the when the plan trustees over there or their or their representative interfere without filing under the trustee the noncompliance was the result of the trustees agent interference yes the under under the federal common law under contract law it's basically contract law that if you interfere with the fulfillment of a condition precedent then the fulfillment  said something like don't file the retirement papers because you're better off waiting until after he dies to do that and we trustees and then we decided that they're and you're wrong that there is no retroactive ability to file if you gave that kind of inaccurate vice about the pension plan that inhibited her  from filing the application that would actually be required then you're saying that would excuse the compliance with the during the lifetime filing if indeed that is required as a remedy for a breach of fiduciary duty yes what i'm referring to here is not even reaching the issue of fiduciary responsibility if if this were a simple contract issue the say it's the same argument that you're fulfilling you are interfering with the fulfillment of a filing requirement and that's if you refused to take it for example she said no i want to file it means that i can't do  if he prevented her if he prevented her from physically filing it that's interference that's physical interference this is the what he said or you're saying this is the same because it's it's so in like a logically goers that's right no reasonable person could have done anything but that that rests on the fact that he gave her inaccurate information about the welfare fund that's what's course that's right but if the a if however the  he doesn't give her he it is a misrepresentation by omission you're saying if the if the if a pension fund official which lopez is not what you're saying he has a parent's carty to be if a pension fund official gave misleading advice about the welfare fund that led someone not to fulfill a condition preceding and least if that or at least it would enable us to direct them except the weighted filing or something like that i think that the fact that the court that the inherently the strength of what he said i'll use the word coercion even though i'm not intending to imply that it's intentional it didn't have to be it didn't have to focus on the welfare fund it could have been anything that would anything that would be the point is it's something that's not about the pension fund if a pension fund official gave some kind of misleading advice about something that was read that would induce a review that would make any real anybody any reasonable person not not file a what if what if the plan was clear to the contrary what if both the s p d and the plan were clear to the contrary that the whatever the individual said was incorrect and there could be no doubt that it was incorrect based on review of the plan of the s p d does that affect your analysis well here the course of the course of this it was written this representation by omission had she had but i need to understand how your the your analysis of the affects of the this interaction that was the reason omission and that was misleading and maybe coercive whether in the context of the plan document that is clear it matters at all doesn't the  in in august mr de rogatis and sent home from work he was too weak to work he went on disability the phrase while actively wasn't actively working anymore that the phrase is common in disability insurance policies and health insurance policies with respect to eligibility typically provides that people in a covered class will become eligible after thirty days so long as they are actively working or actively at work at their employer's workplace and the courts have typically stated that that means you have to be present at the workplace to engaged in performing your duties that's when a reasonable and average person sees the phrase had she looked at this letter when reason the phrase actively working he's no longer actively working because that's where keenan points out to the sections of the s p d concerning the pre retirement survivor knew what he's getting that would not have helped her had she looked at it when the district court stated that keenan's letter clearly told her what what she should look at that by august the facts it changed in march there's nothing necessarily improper or misleading about this letter mr dear goddess i'm still working but by august he stopped working in this letter would not have given him appropriate information mrs d regattas appropriate information as to what section of the s p d to look at and in fact the second page states if you elect to retire he would sign the pension application august second at that point he the common person would think he had elected to retire the letter did not state if you have retired these are the options that you can have have retired w no having gone through the process the benefit of it's been accepted the applications been accepted but when you tell somebody if you will look to retire when you signed the application the ordinary person would think you have elected to retire and that's where the section points her to to apply the roles of those plans uniformly and that includes applying them in the matter how compelling or sympathetic or an unfortunate the situation may be this one appeal relates to judgment mcmahon's determinations first appalling upholding under a deferential standard to review the trustees of the pension funds determination with respect to the plaintiff's claim for benefits  the trustees determine based on the terms of the plan that when a participant dies and at that time when the purchase been passes away the participant has not yet actually retired that the spouse of the participant made by the trustees of the fund the plaintiff had earlier in briefs acknowledged that the deferential standard applied had and had not really challenge that determination with respect to the claim for benefits and my ri that the pension fund has agreed that the mr lopez and keenan had apparent authority to speak on behalf of the pension fund and to help participants understand the pinch no you're not in fact the pension fund disagrees with that the pension fund did not give these individuals apparent authority to speak on behalf of the pension fund or on behalf of the trustees the court did not determine that apparent authority was present the court did not get to that issue judge a man did not get to that issue because she determined that whatever actions they took were in fact ministerial so she need not get to the apparent authority issue so that it wasn't the new york office though where the welfare fund was minister  place where people were invited to go with questions through to the pension fund have a new york office the pension fund did not have a new york office the pension fund is a national pension fund that's located in washington d c and but there are a local store out the country and while participants are certainly invited to contact the washington office or to look on the website or to call stop in if they'd like to but they are also welcome to pick up just very basic information like copies of an s p deforms basic pension projections that could be mailed to their home or are presented to them mr cannon's letterhead says well for and pension funds or pension fund it should not your honor because first of all local fifteen had its own pension fund and so the the letterhead that you're referring to referred to the local fifteen funds all of the funds that you mentioned not to the central pension fund of the international operating engineers which is the funded in washington d c the pension fund pension benefits that we're speaking about relate to the central pension fund benefits not any local fifteen well pension fund  and i mean it's unfortunate that the welfare fund or that the local fifteen funds didn't update their letterhead but certainly central pension fund had no knowledge of that it was referring to a totally different  with respect to the claim for benefits we maintain that the trustees determination was entitled to deference and should not be set aside with respect to whether assists existed again we maintain that judgment ban did not reach that point the central pension fund cannot be held liable for the acts of the employees of a totally different fund the local fifteen well for fund unless they're for do sherry point with respect to the cases that relate to this issue where there is an individual that is employed by the fund about which he or she is giving the incorrect information there have been some cases where the court has found that those employees were in fact acting as fiduciary depending on what the facts were with respect to this case these individuals keenan and lopez were not only performing performing ministerial functions but they were not employees or agents of the central pension fund and there should have been nothing that the that mrs de rogatis could reasonably rely upon to take the information that they that these individuals gave or that mr lopez gave in particular relating to her entitlement to welfare fund or mr do or goddesses excuse me entitle me to welfare fund benefits that should affect what the fiduciary duty to make sure that they are clearly explaining to the has been submitted fisheries what their benefits are there are from time to time and misstatements that are made and courts have decided on depending on the circumstances whether those misstatements rise to the level of being a fiduciary breach being an actual misrepresentation whether the reliance didn't have to be a trustee making misstatement in order for there to be retrained someone as authorized to act on behalf of the fund whose giving information in fulfilling their fiduciary obligation right you don't need to be a trustee but it has to be someone who is not only acting on behalf of the trustees but is also  provide clear and accurate information it would have to be someone who is empowered to do more than just a ministerial task so if you have someone that is merely answering the phone or meeting with participants and saying here's the plan document but if their task is you know make sure the participants understand the plan you know answer questions you study up on the plan and make sure participants understand it and provide that information are they acting as a fulfilling the finish area obligations the plan when they do that but i think that it would depend on exactly what the discussion was but generally if the if the plan says these are the provisions of the plan and the individual is is merely explaining to the participant or the beneficiary what the plan provisions are what they say how they applied so that an individual that individual's not exercising any discretion and doesn't go back to becker in a sense  the employee is intrusted with doing mathematical calculations for example and makes a mistake that might be one situation and similarly if perhaps if the employee is explaining a provision of the plan that is in fact clear and should be clear to anyone and somehow gets it wrong that might be a different situation but if the plan has some ambiguity and this is the person th and of course i recognize that your case is getting pretty far from the facts and that person clearly is the one the trustee is told the person to go to to clear up the ambiguity it's a little hard for me to understand whatever the person's training role job title why that person wouldn't be fulfilling the the producer's sponsor duties of the trustee to provide that kind of clarity that hasn't yet been provided it would disagree with that as a princip or i don't necessarily disagree with it as a principle it's difficult to apply that and this is a yes and whatever because it's so you know it's so off from what actually happened here but certainly there are there could be a set of  a scenario under which an individual who was employed by a fund gave information and that information the participant or the beneficiary reasonably relied upon to their detriment and the fun could be held liable but here there are so many what ifs and you know different applications that just aren't applying here and that i think that that would be going you know too far off in a different direction i think  in twenty seconds over do you have any other questions you could make of a closing statement if you'd like ok i don't really have much more to add other then again with respect excuse me way forced to take action other than she would already than she would otherwise have taken i think that one thing that should be noted is that there was a period of time between that meeting with that she had with mr lopez and the time when mr di regattas passed away and during that time there was no contact made with the central pension fund at all regarding what she had been told at the local fifteen office and i think if she think coercive mrs your honor had mentioned previously is is a pretty strong word to be using here was dealing with a dying husband whose i understand that and i don't mean to be disrespectful certainly but there analytically in the pension fund case the district court granted summary judgment to the pension phone on the ground that there was no fiduciary function here i believe that's clearly wrong varity points out that sherry functions are not limited to providing the documents and disclosures arrest or otherwise requires and that includes explaining the meaning of the play and participants and so they can more readily understand it for the purpose of obtaining benefits in the future that is a fiduciary functions of the distributors is is incorrect on that point there is this this gets us fairly far field from the facts here but aren't both verity and ammara aren't cases in which companies that are sponsoring retirement plans give what i think are easily interpreted as deliberately misleading information in order to sort of make deal with serious plan changes go down easily years in ways that could affect their behavior as a class that's very different as a context anyway maybe the same rules for apply to that it's different in context than the sort of retail provide a vision of information about the details of plans that's all in good faith and you look at status you look at duty breach of duty cause in fact harm in this case we never got past the first stage status the district court made no ruling on anything else with respect to the pension fund and in verity the district court the supreme court expressions stated that it was independently reviewing the holding of the district court there that the very them to was a discretionary act of planet minute discretionary act and because it related to helping participants understand the plan better and to access the plan's benefits that was planted ministration the next step it had to say that in order to get to the next step to find a breach of duty that lying scheme but you always but that first step is applicable in any kind of situation where you're talking about representatives of the plant discussing things in plan for the sherry pfizer its duties with respect to its pension plan did not extend to providing information about the non arista stock plan and that's why the person lost the person had dismissed bell had dismissed their state law misrepresentation claims against pfizer for the stock bonus plan misrepresentation of whatever reason but that was the proper claim in theory in that case in this pfizer the district judge judge is except producer yes to whom i think the ultimate problem and was that the information was being given about in that case something that wasn't a recipient at all that's right but i think the point was just point that's right in this case you can draw a line down the middle of the page to help the health plan the health plan fiduciary misrepresented status of the health plan and if in fact lopez  keenan had a parent authority the misrepresentation by omission was respect to one telling someone not to file a pension application for whatever reason but not telling them that if you don't file it before the man dies my own behalf and i hope it is as you will convey this to mr steinberg as well this has been just an exemplary oral argument in my view it's a very complicated case and all of the attorneys have been both extremely well prepared extremely candid with the court about what their arguments are and what the facts in their issues were and i just think it was terrific and i think i owe it to you to tell you that we thank you thank you very much