right to a crude benefits under a defined benefit pension plan maintained by xerox corporation a good start is to recognize that the key term accrued benefit is defined the fact that it is defined is also critical in this case the specific defined benefit that we're seeking to recover or to enforce is defined in the play on equal to the participants final average compensation multiplied by one point four percent by the number of years of service that these participants had earned under the plan because each of these participants had two sides in this case rely heavily on the seventh circuit decision in burger versus xerox which in the same plan but a different feature of the plan is important to understand that case even though it did involve a different feature so let me start by talking what he got in the ok well i think i think the question the answer to that is pretty simple you look back in one thousand nine hundred eight and you look to see what the accrued benefit to defined concept was that he had earned at that point and vested rights to accrue benefits what was satisfied benefit he had earned at that point in time that's the offset it's not a matter of looking at a pool of money and seeing what happened with that pool of money  and earlier lump sum distribution those are related to each other those are the equivalent speak to is determined actuarially and those actuarial factors don't change whether you're looking way and that's we have again because the statute is talking about actuarial equivalence it means this annuity this accrued benefit is equivalent to the money that you got and yes i think that does address the issue that the money you god is therefore equivalent to the accrued benefit you would earn at that time and the statute doesn't say if you if you don't want to look at it in that simple way that you can do some kind of other projection in terms of a funder something like that now the statute doesn't say you can do that and i think that i think that's a main part of our argument is you can you follow the statutory approach which is actually equivalent you don't have some other kind of protection now the statute does have a projection feature in it which is the pike the rule is congress a statement in this details about what you do on two payments situations congress this statement is that if you want  but if they don't put a buyback rule i'm saying the statute certainly suggest if not compels that they use an actuarial fact balance and but it was a defined benefit feature and therefore the first thing that courtney and that inverter had to do is to figure out what was the accrued benefit to get to that accrued benefit they took the notional account and they projected the notion account forward act at the rate the defined rate defined in the plan they didn't project forward based upon some kind of actual earnings rates they were looking at the definition in the plan so when the district court relied on berger and said that the phantom account here that looks at the actual investment returns of the trust fund is exactly what was done in burger that's simply wrong that's not at all it's time for burger was looking at definitions in the plan itself to get to the accrued benefit and not at the issue we're dealing with here which is whether the crew benefit is satisfied i'll move on to the second issue unless you have more questions on that one ok the second issue is an issue that has seen a lot of litigation around the country in the last couple of years there are several cases that i mentioned in my comments here that were decided after the date that the case was argued at the trial court this relates to  x and in adequate job interacting these disclosure documents that were delivered to the participants the summary plan description s supplemented by the by the value added statement did affectively say to the participants that they were accrui a substantial gross benefit when it did not do is to inform them that that substantial benefit they were being promised would be offset by this disproportionate phantom account approach standard the district court concluded in order to recover in adequate s p d the plaintiffs must show that they were actually injured and we submit that there is no requirement under proper legal standards to show actual injury from a defective summary plan description let me back up for a second what is the function of the summary plan description the courts have recognized that it is the primary source of information that the participant receives about his plan and the summary plan description under the statutory terms must be written in a manner calculated to be understood by the average participant so i ask understood as what when the employee reads the material submitted to him and then comes to work he's coming to work with the understanding that this these materials describe a significant portion of his terms and conditions of employment at xerox in classical contract law what is that that's a unilateral contract it's an offer by one party the employer that is accepted by the other party the employee by his performance by coming to work and that we submit is the best way to analyze this question if you look at fight versus prevention cited in our brief it's the second circuit case from two thousand and two that describes unilateral contract al is an appropriate way to analyz receive case that happen to be a welfare benefit case in the report it's a little bit different but it does talk about that unilateral concept in a lateral contract concept again since the trial court argument on this case have been several significant decisions one of those is the first being decision in the third circuit which clearly states that the appropriate standard is a standard of contract that you have a plan text and you've got the summary plan description those  alternative statements of the contract the participant is simply entitled to the better of the two as a contractual matter there's no requirement to show detrimental reliance there's no requirement to show prejudice a similar analysis has been applied by this circuit to night circuit in the birth to case b e r g t v also from two thousand and three and again that case states that the summary plan description and the plan t differ the participant is simply entitled to the better of the two not a not a no requirement as the district court asserted in this case to show actual injury and i know many cases  noted that it would be an insurmountable burden to ask the participant to show actual injury in this situation that would be asking someone to provide evidence of what he would have done in a situation that never occurred that he got a proper disclosure and that's insurmountable how can somebody prove what he would have done by evidence in a situation that didn't arise attorney a little bit from the contract theory i want to mention to lay out a series of cases going on in the second circuit because that those are very close to what we're dealing with here and the standard in the second circuit as to requirement to show injury or not is reflected in a birth decision let me was likely to have been harmed as a result of a deficient s p d now i want to point out several things about this first saying this is what they require for a showing of prejudice so this is this is the evidence that are saying is necessary second they say that a planned participant had this effect so they're not talking about the plaintiff in this case they're talking about a reasonable man and third the effect was that he was likely to have been harmed likely to have be harmed that is not a statement that micro hundreds of evidence historical facts show that he was harmed this is talking about a potential situation and what the likely effect is on a reasonable man on a reasonable participant  a contract you've got a question and the case law says that to put of a note saying here is the primary source of information here is what you have access to open by the way you have to go look someplace else the case law  district were determined that after nine hundred ninety five the disclosures were improved and therefore an additional question comes up which is what happens if you have a defective summary plan description which gives rise to a right or a cause of action and then if that is corrected as i understand xerox is positioned it's the day they got it corrected the slate is wiped clean and any rights that have arisen are now forfeited i think that provision makes no sense at all yet if individuals have been coming to work under what amounts to a unilateral contract if they were offered something if they came to work because of that they were crude price and those rights cannot be simply pulled out that rug can't be pulled out from under them by by  eleventh hour correction when they come in and say they want to benefit so you're trying to claim it goes all the way through at least until that correct yes what about after that well after they correct it if they make a correction at least if the correction speaks to the effect of the transition between what they used to say and where it is now certainly if they once they make their correction and then then the participant is no longer coming to work expecting the benefits there are documents so to the extent that every time an account is after all a retirement benefit is something that accrues year by year each year when you come to work you a benefit and so something has accrued prior to the date of the correction even though it's not yet payable and that can't be taken away under a unilateral concept concept in a contract concept nor can it be change the future rate of accrual without clearly notifying the participants and how that applies in this context is perhaps a little bit more complicated i have two seconds left so  may please the court good morning your honour's brother parent on behalf of ellie's xerox corporation xerox retirement income guarantee plan and patricia naismith's i actually want to start out with the disclosure argument at least a portion of it since council s p d i would note as a preliminary matter that the section two hundred four g argument was not made to the district court was not made in any of the briefing below nor argue the trial it was a i believe a footnote in their opening brief for this court and there was a page devoted to it in this reply brief but really that issue isn't before the court today plaintiff has not the petitioners have not contested at any point and were argued rather record but they read it or that they relied on it in any way and in fact they've conceded that they did they could not prove reliance in this case they all did receive and have admitted that they've received the  five years after receiving adequate disclosure having never relied on or read in the ninety three s p d that they advanced today as the basis of their claims to this day miller and sabbath are still employed by xerox allen retired i believe in late ninety seven early ninety eight they now argue that they should be able to rely retrospectively on the one thousand nine hundred three s p d is the basis of their claims and they say that the standard should be that they don't have to prove reliance and they don't have to prove prejudice ok if you accept that the as i've represented to you that the section two hundred four g argument the cut back argument is not before the court today you have to look at what your actions entitle to do as a matter of law with respect to it's a recent plan they are entitled to to periodically or whenever they want to fact to fully clarify reissue a plan they cannot cut back benefits when they do so they cannot cut back bested benefits that's clear under the law but again that argument isn't before the court today but they are entitled to do is modify their disclosures reissue a plan xerox has an absolute right to do so and that's all that they did so  here the nine hundred ninety three s p d as a layout court sounds didn't say plaintiffs are not entitled to our plaintiffs on title not to have any offset taken for prior distributions from there but they receive from the plan what with layout court said was the ninety three s p d says you may take there may be an offset but it just didn't say enough and that's what the district court found here as well the one thousand nine hundred five s b he certainly went much further satisfied what layout said would be of service at xerox i would point out with respect to the detrimental reliance and likely prejudice point virtually every circuit that has looked at this issue of whether or not you can enforce the deficient  against the plan has concluded that there has to be some showing of reliance or prejudice and you know i think we have a string site in our brief and i can recite those cases for you here of the number of circuits that have concluded reliance and or prejudice is necessary it's notable that in each of those cases the circuit circuits were addressing whether or not you could enforce a currently operating the governing s p d as against the governing plan they weren't even dealing with this circumstance where the appellants are seeking to enforce an ancient s p v and then ninety three s p d against the terms of the plan today and to use it to trump all subsequent disclosures by xerox and i think this court even stepped in apart from whether this court reached the conclusion that a detrimental reliance standard or a likely present standard was required have to assert the benefits of a deficient s p d against the currently governing plan that is a currently governing s p d against the current plan this court could say that if you're going to try and enforce an old s p d i'm no viewed this case incorrectly from the beginning this case is not about projections it's not about an actuarial calculation that projects forward and discounts back that's what the burger case is about interesting scribes of those past distributions the really the bottom line here is the dispute over what interest rate is appropriate well isn't that different from that let's just take a straight defined benefit plan let's assume it's not a hybrid plan so the employee works for ten years let's say of this earns a what would be a defined benefit of three hundred dollars a month something like that that leaves the company or gets a lump sum distribution leave the company comes back and that's a pretty easy situation because you like to die three hundred dollars a month from whatever the fine with the play would accrue after that right that sounds dollars or four hundred dollars isn't the effect of a hybrid plan to divest the vested rights of the employees in order to find that the land and if they recruit certain rights as of the time they laughed receiving contributions from their employer into that account and that's growing and developing into a bigger balance because interest is being added to that to those contributions and at the same time they are accruing benefits under  a formula benefit or a defined benefit component of the plan it's certainly true that you have to offset that defined contribution there or that individual account against that formula benefit if you didn't  for an employer or a plan to to take that individual account to fund the defined benefit portion of the plan and that's what your office did here for you with respect t the accrued benefit definition that counsel raised in his argument i would note that he defined a crude benefit certainly accurately with respect to what in a crude benefit is in the context of a to find benefit plan which is an annual benefit normal retirement age but if you look at twenty nine u s c section one zero zero two twenty three it also defines what i crewed benefit is in the context of an individual account plan which is what we're setting off against the formula benefit and that is the balance of the individual account which includes both both contributions and interest so the accrued benefit definition that the opponents are relying on i stayed in that account plan why should they do that because that's the fairest way to do it with respect to all participants it treats every dollar in the plan exactly the same way one wife from the just be a straight interest whatever whatever interest the treasury with the fate of something like that because those dollars were pulled out of the profit sharing plan account a lot of it and then when somebody else was pocket i don't see why a plant gets the benefit of a hypothetical investments not that it's paid to the employee and so now you're trying to figure out what it's worth to him well let me use a couple examples your points by using a couple examples the plaintiffs as i said have conceded that interest needs to be ascribed to these to this distribution so again it's what interest rate is appropriate how do we value these dollars at their present value now these dollars that were taken from the profit sharing account how do we value them now for purposes of calculating an offset the fairest way the most accurate way to do that is to treat them as if they've been in the general fund  performed poorly over the one thousand nine hundred ninety s that it actually experienced a negative growth rate that it had declined in its asset value so the distribution was worth less at the time that they were taking the offset do you think that they would that they can and treating them when they were pulled from the plan as if they'd remained in the plan gives you that precise calculation but you have to admit that's a major there and remain in the point of the dollars were value for those dollars this really wise it's a lawful way under arrest and that's really the question before the court whether or not individually it works out in an ethical way and i guess that would be the point that i would really want to make the employee do know  well there's two ways to approach that your honor in terms of incorporating at an employer returning employee into a plan there is that buyback approach that you just outlined but it's not a mandatory approach and it xerox took the alternative wire that's certainly a permissible way to to do it your honor but in this is your actual i was equally lawful which was to not allow them to buy back into the plant but to credit them with all their years of service for purposes of determining their formula benefit and then take an offset for their prior distribution that's an alternative approach which is the one thing they adopted here and which is best for the worry it would depend on the circumstances i believe in any any given situation it would be hard to say i don't think you could make any generalization across the board why would i would i don't know the rationale behind their alleged original selection but i mean you can envision a scenario where someone buys back into a plan that that three years later goes into the fall then there's any number of scenarios where that buyback might not be a good alternative for the employee if they actually i believe your honor was what they were thinking about th i would make one last point with respect to the arguments that judge noonan raised that if you think about it if they're if their dollars had remained in the plan if you take john doe with the same distribution or the same account balance that miller had when he received