a single undisputed fact is the spouse of of the plaintiffs claims and that fact is that the plaintiffs received all of the contractually defined benefits to which they were entitled under these policies that disposes of their claim that there was a breach of fiduciary duty and it disposes of their claim that they're entitled to relief under five zero to a three of a receipt what they're doing here is they're that's fine but the reason standing issue in this case which is with russia will do shoes yes your honor there is a standing issue it overlaps with the merits issue and so i think that the court can written plans are to show expressly provided that payment of death benefits was to be made through an establishment of a retained asset account which was defined as an interest bearing account established through an intermediary bank in the name of the beneficiary when the plaintiff's death benefits were approved you know did exactly what the contract called for it established the retained asset accounts in the beneficiaries names it credited those so it discharged its students under arista at that point the relationship between the beneficiary and unum was no longer governed by risk but was governed by state law and was in the nature of a debtor creditor relationship that is the conclusion that the department of labor reached in its brief to the second circuit in favor versus met life it's the conclusion that the second circuit  that same case it's the conclusion that the third circuit has reached edmonson versus lincoln national life and it is the conclusion that judge sailor reached in the district of best to choose its inventor glue carrying case that the court is going to hear next well what you've said to this point certainly and in receiving the list of authorities you away and it's an impressive list is song but it seems to me there a dealing solely in the best interests of the of the insured so that's one point you've got to what grounds another point that you got to address is your adversaries here respects but one very critical respect and that is that the policies that issue in mobile require payment by lump sum and that's the basis by which the department of labor the two court creation of the array now plaintiffs focus on one particular paragraph in mogul in which this court cited the seven circuit's decision in vega as saying that payment doesn't occur until the funds actually transfer through the banking system and are in the plaintiffs the beneficiaries hands as an initial matter i want to point out that the vega decision was a involves a pension plan so there was no issue there about whether the assets were planted since more importantly even the paragraph that the plaintiffs rely on in mobile has to be read through the prism of what the policy provided and the policy provided the payment would be made by a lump sum when it's read in that light with this court was saying that we're a policy provides for a lump sum payment payment effectuated until the money actually transfers through the banking system and gets into the beneficiaries hands they didn't the court this court did not decide whether the actual transfer of money is required where there is a policy like this which expressly provides the payment is to be made through the establishment of an r e a so moco therefore did not  e the issue that is now before this court second the language of of the risk of it talks about acting solely in the interest of the beneficiary requires that you consider what is the interest of the beneficiary the interest of the beneficiar contractually defined benefits it's not to receive more than what the contract requires judge torsen was going beyond the language of the plan in deciding that there was an additional duty and that there was a breach of that duty the courts had been very clear the supreme court and this court this court very recently in the rightly decision that when considering whether somebody complied with their duties under risk the cornerstone of that consideration is language of the plan in here unum complied with that but when judge torsen focused on the interest rate she was really charting new ground that no other court had ever charte even going beyond with the plaintiffs were alleging in the case at the time also  not wearing its fiduciary hat at the time it said its interest rate the courts have been very clear again this court has precedent on this and the supreme court as well that an insurer does not breach its duty its  under four zero four by taking reasonable business actions through which you can make a profit it's intitled to do that it's wearing that union was wearing at the time it's at the interest rate the head of an insurance company making inherent delivering what the contract the plan calls for it creates the our age that gives the the beneficiary control it no longer has a risk of fiduciary duty and then the amount of interest that it chooses to credit to those accounts happens as part of  acting as the service provider as the insurance company that is offering the our aid to the beneficiary then decides unilaterally what that rate will be and arista does not govern that is the benefit as defined in plan this amount of money you know at an interest rate yes and why wouldn't it be a reasonable interest rate if it doesn't separate well it doesn't it doesn't provide whether the for that to be reasonable i suppose that you could you could i understand the argument that arista requires that the interest rate be reasonable however your honor keep in mind that as a participant what's the benefit i'm going to get what can i expect to get and it isn't just this amount of money it's this amount of money in a formation say in our in not just in our in but out in internet has to be an interest bearing  the beneficiary has complete control as to whether they want to keep the money in that account so if they don't like the interest rate if they think it's unreasonably low they can pull all their money out but there's nothing in a risk of that says the federal courts should be determining what interest rates the insurance companies that have these are aides should be providing to to their beneficiaries and in fact for federal courts to begin to do that runs counter to the language of several supreme court cases that says you have to consider that part of the basis for risk one of the goals was not to make ministration a plan so complex and expensive that employers are discouraged from offering bennet's benefits in the first place where federal what happened in this case was judge torsen went beyond anything the risks are required and opened up a huge and very expensive can of worms through protracted litigation through confusion about what the standards were of the expert couldn't even figure out exactly what the standards were at the trial judge horace and herself wasn't sure what the standard was and that's the simple fact in this case is that this court got it right in mobile it is a correct and a wise interpretation and application of the statutory language and the law of trust and just pure considered mogul and distinguished it on the basis of not policy wine which and i'm struggling since i think the deal with guidance is disproving of skidmore difference  struggling with with why we should just we should brush the distinction assign what do you want to first of all they declare is different to what this court said more importantly and i think if you read bedsit it goes the death benefits are planned assets even if they are being held by the insurance company during this period and the favor case and the deal though early opinion did not address the question before the between the time paid for in fact that's what the dealer says of the play and paid for the policy of the name policy holder they have a beneficial interest in the death proceeds and the pose of the plan assets and they cite as support for that not when the time of death and the time and the think and it's not instant thing they got claim to approval they have to get all the information when they approve it and this is on the record face don't just send out and the circumstances arise in which you claim is legitimate and at that point the insurance company has to send regain its assets and identify them to that claim and from that point wise decision otherwise trustees and lawyers and everything else would be say it oh i've finished your case and i can move your trust funds in the muffins bartman best and not be accountable for profit gained on those funds because i decision ok and in that case your honor the plan itself provided that when deaths occurred the death benefit proceeds would be paid into the plant so they become plan assets  and what happened in that case was that the trustee they actually go into a trust and the trustee took the money from the death benefits out of the trust and put them into different trusts that the beneficiaries had no interest in they were just trust that were in the interest of the beneficiary of the trustee and so the deal well took the position that you can't do that you're taking plan assets out of the planet diverting them to some other concluded that units general accounts are not planned assets under the guaranteed benefit policy exception of section four hundred one b two of rissa they are exempted the policies are planned assets but the general accounts of the insurance company are not now mr bell argues in his brief that they are temporarily exempted from the definition of plant assets but once the death occurs in the claims of prove it become plan assets there's no authority for that proposition anywhere it's a that argument just doesn't go anywhere it isn't the ones that claim county was how is that tre liability that's only to the beneficiary and that somehow gets accounted for but it doesn't mean that the funds that backed the liability need to be segregated or that that is all in a risk  function it's not as if the other courts of health now the deal well in its decision on our aids in favor or it's brief said the test is whether the plan has an ownership interest in the funds in the general account and that very held the trust law does not tell the whole story but what verity it was was suggesting was that a risk is not coterminous with trust law which i think everybody recognizes a risk as i said earlier reflects a congressional balancing of competing interests the interests in protecting this court has said before i think into mars that a risk is designed to protect employees and to protect employers it's balance it's a careful balancing that courts are reluctant to interfere with in fourteen ian this court said and i quote any application of trust principles in a recent context must be tempered by a scrupulous regard for the delicate balance congress struck in enacting arista so trust law does not help it may be the beginning of the analysis but it's certainly not the end of the analysis deal well took that into account  its letter brief in favor that other courts have taken it into account it's the arista interests that have to be considered finally if i may just respond make one more point with qwest respect to the question about the setting of the interest rate in determining whether the rate is reasonable the firestone would suggest and require that the courts to fur to the decision of the insurance company in deciding whether there that is a interest bearing account and there's no basis on the record in this case for any court to say that planned benefits if we flip that we're not we believe that what the elbow the core was the door to five to share service they establish rule if they use that service to benefit themselves