ok mr sattar please the core when this court reversed the district court almost five years ago on its findings of legal correctness and abuse of discretion it sent the case back to determine only the underpayment claims of north cyprus the violations of a risk in the violations of any breaches of duties to the members who were asked knees for it also stated at that time that on the truncated record it could not state if there was legal correctness but there were strong arguments that the interpretation the signature of this exclusion was not legally correct why was it truncated there are only two things they were not decided prior to the time we got to the circuit almost five years ago that was did cigna apply the exclusion charges which are not obligated to pay equally to in network providers clients and to do their research dispute whether or not cigna had a conflict of interest in the contingency fees that it earned we went back to the district court after that when the panel specifically instructed the district judge exactly how and what questions and in what she may to determine legal correctness at that time there are only three things we had to do for discovery on this truncated record go to new york and find out if in that work members were the exclusion was applied to them identically and number two did cigna make money off its protocol a conflict in other words and rd the other thing we looked at futility of an appeal and what we found out when we got to new york what we surmised before it would ever come up until a judge higginbotham raised it is that cigna did not apply the protocol in the exclusion to in network providers cigna also made a point two million dollars in contingency fees off the protocol that is applied now they claim we did turn off the cost containment program but it only went down nine hundred and seventy seven thousand dollars they still made three five five million dollars because they have three different funnels that they can use for cost containment programs they still kept two dollars of them on so we came back to the district court at that time my position was we don't need summary judgment let's go directly appellate court was to ask the question what does a reasonable i average klan member believe this exclusion does mean does it mean that if he doesn't pay one hundred percent of his co pay for out of network he has no insurance coverage at all is judge taken by them said to reiterate does he believe that he has no insurance coverage then you have to look at conflicts abuse of discretion etc when we got back the court  an in their work contract the court also found there was strong evidence that cigna acted in bad faith that it had deliberately targeted nor cyprus with this pilot program and the evidence that came out was very strong because this is the  time we've had this type of discovery one million seven hundred thousand pages of documents exchange twenty seven depositions and what we found out at that time and by that time signature began to argue if you go back court the st time five years ago you don't see much about kennedy the th circuit case is not discussed in that opinion but by the time we got back to the district court the position the signet took is that we rely on kennedy  sudden circuit case back in one thousand nine hundred and one they said that if you don't like all of the patient responsibility that's what you're going to get paid when you make a claim to the insurance company one claim from a chiropractor which was subsequently modified by the trustmar case in two thousand by the th circuit saying but if the individual incurs the expense and here we clearly the members incurred the expensive in this circuit found let's cut here let's shorten this tiny tiny bit say but you've got the humble case ok well what the mumbled case is done and that's what happened because the court came in and made all the findings under i think the law of the year is sandbagged by the th circuit well no not exactly because if you look at the case judge throws you don't see the evidence that we have in this case of the bad faith because the issue in the case was was it legally correct and they made the argument there they had relied kennedy and in this case they did not rely upon kennedy because their protocol began under invest or began to be made in two thousand and seven through two thousand and eight if you look at it very carefully if they had been relying on kennedy in our case they would hit the st day said we're pain you zero dollars because we don't believe you collected one hundred percent of the patient responsibility amounts and what happened during that two year period where they accepted our charge best rates and paid was this they went back and forth and one of the things they said the legal counsel said if we pay nothing under this situation it smacks of a lack of genuine effort to interpret this lucian the other things that you found out is they even said before they tripped or pulled the trigger they said that we ought to be concerned about what we're doing because we're applying this exclusion differently to the out of network providers going to other draw an analogy to you and we when we take into it when we have a th amendment case our duty is to determine whether the law enforcement people objectively acted in violation of search and seizure rights and it doesn't matter what their intent was the supreme court has put a heavy premium on uniform construction of policies under risk for a very good reason which is to encourage the development of plants and maintenance of plants and for the ultimate benefit of of employees and here what i'm suggesting is intent may have been bad but you have a venerable opinion saying that this language is permissibly interpret it in the way they did it then you have a th circuit follow on which says this is not an abuse of discretion interpretation so what you're asking us to do is walk precisely down the path of of interpretating the contract in such a way that we're going to have very between the th circuit in the th circuit but at the same time the reason case went from the legally correct to the abuse of discretion because they could determine that there was no abus discretion that's why they skipped that st step or that panel did in this case they did not skip that st step because they could see that there was an abuse of discretion and that makes the difference in this one completely different because they clearly had an abuse of discretion and the problem that you also have is what does the average plan participant believe that this means because if you look at the record judge jones on this particular case after we did the two thousand fourteen argument before this court signal when alex and amended amended this exclusion it expanded it from thirty two words to one hundred and eighty nine words one hundred and fifty seven words and what they put in there is exactly what they argued in their protocol that if you don't pay one hundred percent we have the discretion of not paying this coverage and so that that was not in you we did not have that type of dusenberry case from the supreme court and a policy and a plan is a contract the the subsequent remedial repair only goes to the issue of culpability and causation it has nothing to do with this and you can then you can't jump to that nd step of lack of good faith and the conflicts of interest that they had at that point when you have the type of evidence that's been submitted and none of that was ever  the if you're if you were on a peer instead of down behind the bench how would you write an opinion to get to distinguish the humble case i would have to get think you know what i mean you have the exact same language in the plan and you have isn't it said you're going to distinguish it on the intent of what you would have to distinguish it on the facts because they spent twenty two months if they truly believed that and that that's what that exclusion man meant you would not head twenty two months of seven departments and dozens of employees trying to figure out a way not to pay the one thousand nine hundred and twenty one claims none of that was  brought up in the one and if i was sitting in your position the position that i would take that is distinguished because i'm bill didn't have before it all of the evidence of what really went on and what transpired with regard to that exclusion and the fact that they amended that exclusion even though the district court wouldn't accept that they amended it because they knew that's not what it meant in the other thing that you have to say as we went through this five years ago in the question is what was the purpose of nor cyprus versus cigna and judge making about them hell rod in stewart's opinion in that regard telling the district court to follow these steps and when he followed those steps there's only one answer that you can provide is that it was not legally correct in there to do bad things let me ask you another thing what other cases are there in the entire country that interpret this language the way you would do it or say that it's not legally correct  position feeds off of the dicta in that case this doesn't appear to be legally correct but aside from the dicta in the st cyprus case is there any other case around the country that  is distinguishable in that regard and what i was getting at right before is we went through five years of this circuit telling the district court this is exactly how you proceed and when the district court followed that  in i believe it's law of the case and i believe it's more judge than dicta because you've got to recall that all of the evidence that we had that we presented the st time up here over in the east court room was there it didn't change one iota the only thing that changed was issue is the issue of substantial evidence and we clearly showed i think that there was no uniform construction of this exclusion because in this situation when there were the policies signal didn't pay it kept the money in the plans when cigna didn't pay it got to keep the savings that it made off of its protocol and like i said there was eight million two hundred thousand dollars in indicated the conflict of interest that they had the next issue was the futility issue and what we did discover in this particular case was that all of north cyprus his claims were funneled to the u s i knew they made the determination of coverage yes i you was then involved over twelve court room were involved that's a red herring is it not no it's not a brit hearing but involved as one is it is a very vague word and if i read their brief correctly they were saying that they were locating information that that's all they were doing in fact i believe they even said they offered to provide their attorney no st judge that is the sword and shield of attorney client privilege and you do in that after the fact when we were in a trial when we were in when we were in trial i made the argument that this clearly you could infer from exhibit number eighty six that they were involved because this is the case notes of where they were telling off go ahead or where they were telling the appellate people how to rule and in between each one of those were the lawyers talking to the s r u and the appellate people i raised that before they didn't raise that argument that they would be willing to submit those in camera until final arguments well that means you're a good lawyer well that may be but at the same time judge if they did if they wanted to submit those documents they had to do that during trial they don't get to come up on appeal in say oh there's really nothing in there that is using the attorney client privilege is a sword in the shield which is impermissible and it certainly was involved when you look at exhibit number eighty six right in between all the instructions are the lawyers getting involved with the s r u telling the appellate division how to rule and how to uphold their adverse determinations if they had already made thank you you have time for about all mr simon please the court my name is josh simon i represent i also represented cigna in the appeal of the on book case which had nearly identical facts to this one as you pointed out judge jones the co insurance and the doctor bills that the signal health plans require to practice nowness fee for giving both this case and the home a case involved the same plan language the same interpretation of that plan language by the same signal personnel the steps that cigna special investigations unit took to investigate hospitals in both cases were exactly the same the types of evidence that cigna collected in the course of those investigations were the same and cygnus response was the same so much the same in fact that if you look at this court's opinion in hommel at footnote one it says if you want a quote unquote detailed explanation of how of what cigna didn't that case you should read this court's prior opinion in this case judge ellison certainly  distinction between this case and the humble case following a two week bench trial in fact everyone involved in this case including more cyprus has always understood just two days after the trial court's decision in on ball but of course one year before the humble court's trial court's decision was reversed by this court and here is what more cypress had to say about homo back in two thousand and sixteen dear judge allison this court the southern district of texas has already ruled on the issues which are currently before you in or cyprus is this positive motions the rulings were handed down in connecticut general life insurance be humble cervical hospital humble surgical involved the same pay or cigna health care the same the forgiving protocol the application of the same plan exclusion charges for which you are not obligated to pay the same application of the cigna protocol and exclusionary language to out of network claims in this city and the scene claims in the fences since that's your best argument we understand this point you don't need to hammer it that hard but what's your what's your best argument for the legally correct legal correctness of this interpretation sure as humble says as you know that they don't reach that yet and that's that's not and i disagree with the premise that a plan member wouldn't understand that if they reach a secret deal with their provider to waive the co insurance and deductibles that they're supposed to pay you know since the facts of this case of the seam is the home case the outcome has to be the same as well that's true under any principle of starry decisis that's true under the practices of this court which established that the decision of one panel can only be overturned by a court this court sitting up bomb or by the supreme court and again that's true under the abuse of discretion standard the has to be applied in this case there's an express factual finding by the district court that all the plants out here delegate discretionary authority to cigna under the mccorkle case that means that sickness benefit determinations can't be set aside even if the court disagrees with them as long as they were reasonable and your job here is only to assure that cygnus interpretation feels fall somewhere on the continuum of reasonableness even if it at the low end well now we've got nine federal judges who have all weighed in on cygnus interpretation of this very plain language and found that it was legally correct or at a minimum reasonable the district court judge and kennedy the three judges on the seven circuit panel one kennedy the district court judge in a rap i hope in colorado judge ellison below and the three judges from this court on the humble power simply put the a risk of abus discretion standard would be meaningless if you were to find that cigna acted on reasonably interpret anything planned in the same manner as nine other federal judges was a kennedy case what do i wan before them and that's correct that's the only issue they decided your honor but it was briefed and there's an express factual finding in this judge else's opinion that signal a wide on the kennedy case you point out judge jones the reasonable this of that interpretation shouldn't barry depending on whether a case is brought in the th circuit or the th circuit and it certainly shouldn't vary depending on whether a case is assigned to the east court room or the west courtroom in this building this court has already decided on their almost identical facts that cygnus fee for giving protocol was not an abuse of discretion and there's absolutely no reason for this court to your honor in response if we just step back one moment with regard to what this court did before when it said the inquiry has to be one an ordinary planned member would believe if it coverage was conditioned on the collection of the co insurance when it was not for in network it cetera today i'm representing one thousand nine hundred and twenty one members because i'm the acid knee of their claims and their benefits and if there was one thousand nine hundred and twenty one people before the court who claim that which most people normally don't pay one hundred percent of their patient responsibility amounts were to come and find out they have no coverage and they would all be sued by the hospitals and a lot of you put into bankruptcy and grow both because they had to pay though they had insurance that st day of legal correctness would not be skipped i sort of i understand your equitable argument but at the same time if you are making if the company hospital was making the side deals with the patient that was a way of encouraging business and they assumed that they were going to get paid by the insurance company regardless so now if they are so well intentioned toward the patients we know they're not going to sue them for the balance well it certainly some providers do this one does not but a lot of them do there's no doubt about that but at the same time you have to look at it from i much aware of it in paid for twenty two months even the other court the other panel seeing suggested there is a waiver there because they knew our charge master rates and paid notwithstanding but the situation is that what you can show is for two years they didn't even know what this exclusion meant they spent two years and dozens of people trying to figure out what does this mean and how do we apply it and when they come in say it's smacks of a genuine effort to determine benefits and that we ought to be concerned because we're not applying it well and we're going to have quote peed off customers i won't use the word and dig down reporting to the press in the media they did this for two years because they did not know what  and they were trying to come up with an excuse to apply it and they did it with their protocol by the time they got to unbolt all the evidence of the protocol wasn't there they called it proportionate share they took out protocol because it was so damning to their position to have that situation and the other situation too if you want to distinguish one of the things it said was there they had paid for two or three months on repricing agreements and then came in and said we're not going to pay because of kennedy and what the could this court said was instead i'm full raise the affirmative defense of this exclusion if you look and document t twenty which are the affirmative defenses in this case raised by cigna not one affirmative defense is they're applying exclusion not one and where ample way off was that hey we have a situation here where cigna raise an affirmative defense of the exclusion charges which are not obligated to pay and then we have to apply that and see what the facts are they did not raise it in this case they talked about it in some of the background checks but they never raised the affirmative defense to even get to this court to support the ruling that they won out of and that's where the went off when they said yes they did pay even though they paid us for two years they paid for two or three months but instead of taking any action they raised the affirmative defense and applied cigna didn't do that here even though they switch back and forth with lawyers between firms and represented each other in this case and knew these two cases and knew exactly what was going on so they don't have even the basis to come before this court and say we raise the affirmative defense it's not there you've got to have it and they didn't ask for a trial amendment they didn't do anything to include it and they had an army of lawyers down there we went through ten years now this case and they didn't have that affirmative defense and is as judge ellison held in another similar case under the legacy case the provider under this situation cannot be held  holding the bag we provided the benefits two thousand five hundred employees we had to pay and we weren't paid anything thank you