nothing in the power points reverse in any way shape or form to the describes who is going to be paid and how those benefits are to be administered all of those requirements are contained in the st way in the whole parent with the ram there is no dispute that the benefits were going reason the reason it matters is because we have case the tells us what to do if there's a conflict between a semi plan description and a certificate and i'm trying to figure out whether or not that case was a put the ball here are you familiar with the prichard case o so is it your contention that maybe this is what you're arguing you're preaching kind of goes right past this and i in response that i really just intending a response that judge our follow up to dead babies question and that is that you don't think the path powerpoint if i'm understanding correctly is plan can be terminated by the employer or the sponsor in the us see you turn back one page from that and you see that the talking about of all the group welfare benefit point that was within the c define who the beneficiaries are and how they are determined remember the power points got to be that the you got it you know then a last two times the years there have to be over sixty five but there was a specific require to be retained for a certain period of time this was obviously something that was created to keep the most senior execs you could walk and get retirement two years later and take advantage which is led to bureaucrats and the h r department who are supposed to do the documentation of all this stuff doesn't do it and then there's absolutely no claim under the law that is just because let me posit what the argument would have there was a determination provision that was part of the deal or again there were geisha in them that does not exist and didn't exist until two thousand and six when the plan was completely changed and you've got that in the rec obviously as one of the employees it was completely normal for someone to get that and think nothing of it in terms of what impact it could have on the benefit when all of the executives and there would not one of them  app and the plan your honor is the the pasha to oversee teledyne case disposes of the argument appellant is making about his client having no responsibility to go and read documents that he absolutely and knew existed admitted under oath that he knew i shot a versus teledyne holds even rank and file employees not senior executives even rank and file employees could not rely on a promise the company would pay medical premiums for life contained an insurance bill includes as long because those books instead the insurance contract control and the reason they couldn't was that the contract was quote of vailable for review by any employee who wished to see it unquote therefore the court held that the reservation of the company's terminations right was affected not that an express reservation was required frankly  it doesn't really matter whether he ultimately read the terminations provision in the certificates because the law says non best thing is the rule under arrest that the parties agree on mess it's in the opening client documents that come it in quote clearly an expressway unquote that's going mogens and ali to relinquish the default right of the company to terminate this benefit at any time for any reason that was his burden to prove it was not our burden to show that we expressly reserve it anywhere now your honors the line of cases that for summary judgment or dismissal for plan sponsors or employers in circumstances frankly more disappointing to participants the knees is long and compelling the curtis wright case decided by the supreme court involved employees rick who lived for many years unopposed retirement health plan until the employer announced it would terminate those benefits for employees of any facility th again the employee has relied for twenty years on booklets from the insurers saying teledyne we cover health premiums for the life of any retiree who had fifteen or more years of service until the employer reaches the benefit judgment because the booklets didn't meet the statutory definition of a summary plan description mr warmenhoven seems for lack of a better phrase stuck in state contract law as his argument implied at the beginning that's not the law controlling here a federal reserve law often reaches results that in individual cases could by the plaintiff slaves feel unfair but that demick and good reasons rooted in the statutory schemes need for predictability and the need to incentivize employers to offer benefit plans which they wouldn't do if they didn't have the terminations right when circumstances exactly like this case arose requiring a different business judgments cinelli a case we rely on how badly involve the promise of supplemental life insurance in a letter to the pla from a company president and in a board resolution it's promised with supplemental life insurance is far above what he would have had without that rider a successor company cancelled the benefit long after the pla plan document was the certificates your honors i am puzzled by the contention that the certificates had nothing to do with this i'm prepared if you would like to go over the ways in which the each certificate met each comply but again the power points were neither they were there they were neither the plan the formal plan document nor even did they meet the criteria under donovan the case that mr warmenhoven relies on which i mean and in a way is it is a completely irrelevant analysis anyway because donovan and scott are all about whether a plan exists right and the parties agree on plan excess so it is all right but but we are talking about what comprises the plan and my earlier question do you think is it your position that the that the power plant was a summary plan document your honor we don't regard it as a summary plan description but what is it what is it was an offer it was a proposal by staff to the compensation committee and mr warmenhoven his own testimony because he there is no evidence he ever saw it so let's talk about the power point shown to him that led to his promotion of this benefit plan that would benefit himself and other senior executives and i kind of mayor stop you there you what the heck the power point is it was a proposal from staff from the benefits staff of not up to the compensation committee of the not to even go forward with an intention a decision to confer this these benefits are correct but never mind create a plan and the law is crystal clear that an intention to create a plan is not enough donovan itself says about as well as this cords cases discussing donovan and intention to create a plan is not enough to bring it within a reza a decision to create a plan isn't enough we need much more than that and this court's decision golden gate restaurant association in fact held that the donovan criteria while necessary are not something different to a so what point was a plan created at one point when the insurer which was designated to be saying that in the power points for the original set up issue the certificates we have a plan document we have a decision carried into effect what that the dates and citations are you familiar with the pritchard case your honor i have to confess i haven't prepared that one of the dozens of others that i didn't know where is it just wondered ok that's fine thank you no problem i want to spend a few minutes on the breach of duty claim the the essence of the claim which i think is important to distil mr wurman home an alleged that net apps breach consisted of misleading him about the benefits to be provided but the only ground argued in his opening brief for reversal on this claim was non disclosure not fraud not affirmative misrepresentations but simply non disclosure that is the theory that he contended ought to be a basis for reversing summary judgment so we think that's a waiver of anything else but in all events the district court summarized the evidence as one sided that no judgment order explains why a president truthful intention to confer the benefits cannot retrospectively be converted into a misrepresentation and a wrong i'm sorry but he won the district court's a case that precludes a theory as a matter of law that some agree just non disclosure wouldn't be enough but this record store closes that conclusion as a matter of law because no circuit permits an executive to ignore it information that he knows exists knows is important and chooses not to read in fact this court routinely enforces or is a requirement to the cigna policy and mr warmenhoven got a summary of the cigna policy which did refer to certificates yes where they can you can you tell me where in the record i would read to show you how they were presented where they presented simultaneously or did he just have access to them or where do i look at me for the nd claim those details matter absolutely so i have those sites for your honor the the five page summary was produced and in fact this or to the power point themselves do refer to the attached summary it's just not included in the record that he produced the slides they came afterward or whether it was given out of meeting but the some of the power point looks at the right document to figure out that when your orders i was wrong the employer st of all we never said anything that wasn't correct we certainly never said that oh we're we're committing never to exercise our default right determination under the original law that's not i mean there is no direct misrepresentation he's never even argued that so what i'm contending your honor is  that he admitted he understood the power point was only a summary of some of the plans beecher's he admitted he knew it wasn't the entire thing that he had to look at areas for you to chewy argue fourteen he admitted he fourteen right he admitted that net had gave him a five page summary of the cigna coverage which we were just discussing with judge kristen which itself said go look at the certificates for limitations on coverage so what does unlimited lifetime maximum so that means to be to be specific that there isn't a limit on the amount of coverage we will pay any person their signal will pay any person for whatever damage or disease or injury might occur to you but is that the question goes to the lifetime part should be unlimited part no i mean we're  not there's no debate that that net out originally intended for a life time coverage but there is likewise no debate that we never relinquished our right under risk to terminate this plan of business that's three e r or ninety nine thousand five hundred the yet he's arguing the power point is the plan and he's arguing that the power point is absolutely unambiguous because it says lifetime benefits i'm summarizing but as you know that's his argument so would you want to respond take your best shot at that issue sure there's simply no entitlement to rely on powerpoint slides when a plan has issued a resent governed document that either frankly under the statute we argue eleven o two or under donovan the test that he argues it's a little bit silly to to suggest that only the definition section of ten o two controls you know what are the requirements for a plan when it's actually eleven o two that says fund you know requirements for a plan the district judge was was i think rightly surprised about that contention is how were superseded by the issuance of the certificates they were never any more than a proposal by staff to the executives and did not crystal didn't even crystallize into anything resembling a plan until much later which under the even donovan the case he relies on and intention even a decision to offer benefits is not a plan by itself you need far more than the power points provided they don't even meet the donovan test your honor never mind eleven o two which is the actual  longer but it was read it was objective as of may one ok thank you sir so that's that one is the only one that he got and then who upon approaching retirement he was given the certificates themselves  i'm not frankly sure why counsel is referring to any other copies of the power points because his there's no evidence his client ever saw there just even it out even on upon departure from the company didn't get another set of the powerpoint no let me clarify from it was correctly adopted by the trial judge and ought to be adopted by this panel because it says that you can't go back to an assertion of intent at the time it was made and convert it into a misrepresentation simply because a business judgment to go a different direction was later made right that also didn't mean adopted w opposition we should change th circuit law because judge appointment the original question was is that the law in the th circuit and i don't know the i don't know i don't understand your answer ok the th circuit does not have a case directly addressing the issue in the right so when used just said that the th circuit should adopt from you meant we should change our law is that right well so as opposed to suggesting that we should follow from because that's about binding authority i  just it's not a trick question i just want to be clear that that you're not saying something similar the question really was is does that apply here in a bike is it binding and i think your answer now is oh no not no no it's a seven circuit case but it's an extremely persuasive decision by judge easterbrook that i commend to this court i think it's highly persuasive on the question of and frankly it's just common sense to me how is it possible that that even though i not only sincerely meant what i said twelve years ago but i acted upon it i published i filed things with the f c c saying this is what we're going to do i've paid so do i paid beneficiaries i net out for years in accordance with this plan but but came to a different business judgment as a result and titles us to do under the default rule of not just saying right that is the law under any number of cases from this court in a  that does not retroactively made my earlier assertions false and so we are wildly over time and i just want to make sure we have any other questions there are that just have one i'm so sorry briefly trying to help the court your honor i just think matthews is this think that consigns active misinformation and this opening brief contends that there was a non disclosure and nothing more language in there we could get rid of doesn't exist it is just because it was right it was a twenty or twenty hour point that we believe the polls applicable because last time that he retired in a way it doesn't make much difference because they were meaning you know they obviously became eligible at about twenty birds in about a year before it would but do we have anything in the record indicating that we saved all of them i think so i don't have a citation here to his declaration but he said the reference to the fact different documents they don't refer to the exact medical retirement plan they referred to something called the group welfare benefit plan for all we know bass the employees benefit plan that involves thousands of people that work for obviously applied to the employee or employees it had nothing to do with retirees other than being this is the same bit of that the employees that's what you'll get when you retire or you're ali the company said no our business plan is we can avoid any war or by the way look at the experience policy that covered you look at the terminations when the board says what are you talking about there's no connection you made a true we incorporated all the allegations st which had our point statement that is a non disclosure that's a statement on the record we talked about the f t c disclosures to the public all of those who said they were live from benefit