morning your honour's me it please the court i'm catherine help representing appellants board of directors of the motion picture industry health plan and the motion picture industry health plan i'd like to reserve five minutes rebuttal i also like to let the court that i have a virus and i'm having some difficulty hearing the appellant's request that this court reversed the separate orders of the summary judgment in the judgment in favor of the mall's on the grounds that the district court committed legal in factual error in finding that the document intitled motion picture industry active health plan summary plan description did not constitute a governing plan document under a receiver and an enforceable benefits and clarification of rights to future benefits found in a document that they determined was not a planned document the principal issue as to whether the s p d is it in forcible plan document must be viewed in the light of the purposes for which a receipt was adopted so that every employee on examining the plan documents to terms with exactly what his rights and obligations are under the plan scuse me rights to their rights and their obligations to reimburse the plan are found only in one document the plan s p d which together with the trust agreement was intended by the plan to do sherry's in charged with the creation interpretation of the it seems that the individuals could not recover anything because there are no provisions for benefits in the trust agreement itself so how can you get benefits so i mean it strikes me that it would be illusory and supplying well that that's my point your honor is that either it is a plan document in which case the trust agreement which best discretionary authority in the planned benefit appeals committee to decide to decide and interpret benefits isn't forcible and it should be given deference by this court and because it was in force in the clear unambiguous terms in the s p d for reimbursement and their decision was not implausible or illogic interrupt a moment because it's very clear that the the plan contemplated that there would be a schedule of benefits correct is what is intitled the summary plan description which term summary is rather unusual for a document that's hundreds of pages long goes well beyond being a schedule of benefits could we decide that the schedule of benefits contemplated by the plan is part of the plan but if there's a lot of other provisions in this document beyond being a schedule of benefits that it's not part of the plan well your honor i think that the first of all the trust agreement in titles the tasks the directors with creating a plan of benefits and the document is very clear it's adenovirus itself as that plan a benefits the desperations the trustees say this is the plan of benefits and on the first page it also alerts participants x contain an express integration clause i would say it plays an implied integration clause and in fact will not express but imply no but your honor is this does this court is determined that documents that that contain in forceful plan terms are enforceable plan documents don't have to be labeled as such what it entails supports is very much the same situation that was found in the mountain elk case i'm going to interrupt again i'm sorry is there any significance to the fact that the trust agreement was adopted in two thousand and ten and the summary plan description is from two thousand and seven no you're i and one didn't mean that  and ten they say oh and that two thousand and seven document is where you find out what your benefits are and are not no your honor because if you look at the trust agreement the trust agreement was this is this is a taft hartly trust it was a contains all of the plan amendments up to that date it doesn't change the structure of the plan the fact that there were amendments to the document in two thousand and ten the document the plan is  pursuant to a trust agreement just like an mot now with the contemplation that plan benefits like many health plans would be expressed in a separate document but by this i guess i just not quite sure i understand or appreciate why we have a law that says it's drafter of the plan it's your burden to show that the summary plan description was expressly corporator into the trust agreement iran or the there is nothing that requires that a plan b that the requirements of for zero to be peace expressed in any one document it would be impractical for a health plan to incorporate the provisions of a summary plan description when those change those provisions are changing  it's very common for this kind of search for health plans to to to have a separate document a trust agreement and a separate document that actually describes the benefits i think that there is an incorporation of the of the document because it contemplates that the plan is going to be governed by this trust agreement and the directors with full discretionary authority are authorized to create a plan of benefits which meets the definition of for zero two before if you're wrong the point of still lose because if there are no benefits then then the trust cannot have violated the terms of the plan requiring the payment of benefits that so i'm not sure how that really helps i mean that's well even be for because it's the only one that specifies benefits or it is not if it is not a plan document then the court clearly erred in number one granting the mall's benefits and  the mole's claim are not part of the plan document but let me get right to the provision that i have a fine with respect to the recoupment and it's one thing to have a person covered under the plan receive a benefit that she wasn't entitled to receive or retain a benefits she wasn't entitled to retain and quite another thing to have a provision that would require another person entitled to benefits under the plan say her mother or her minor sister be subject to recoupment for her failure to reap pay the plan it seems to go against the whole idea of any equitable principles that were contemplated at the time that a risk had these plans why would the other and i'm carefully not using the word participant why would the other d pendants under the plan who had no control or say so over what the adult dependent did with the funds and didn't do with the funds that she received have to pay back well or have to not receive planned benefits because of someone else's failure to pay the money back well i will address the court's question but i would like to first preface it with the statement that that is shu is not properly before this court and if it is considered before this court to determine a determination that it's not properly before this court because the court did not cite on it and they didn't appeal it but nevertheless if it is before this court what's before this court is the decision of the trustees or the directors enforcing the written terms of the plan  their written terms of the plan in this case stated that if in fact a participant fails to reimburse the plan for benefits then benefits will be recouped from all future benefits do that participant in anyone claiming under the participant basically a dependent it is the only way that the plan can maintain its financial integrity and there is nothing that violates it this this kind of recoupment it's not you're not getting directly a man on your own but you're collecting a little bit of time that's correct your honor and it's it's not a situation where directors didn't enforce the benefits in accordance to the plan they can seek relief under five zero to a one b well and in asking the question i'm thinking about the supreme court's decision in a morrow about how the summary plan description cannot have something in it that's contrary to the plan and that's why in a morrow they said the bill the summary plan description was not planned documented it can only be a brief explanation of what the plan is providing could this provision be considered even if we agreed that the plan contemplated a schedule of benefits that what we have in this so called summary plan description is much much more than a schedule of benefits and contains many other provisions that are not necessarily consistent with the plan no i don't think so your honor because in this case first of all again that the trust agreement does charge them with designing a written plan of benefits and this particular  provision tells you know the reimbursement provisions as well as the recruitment provisions specify the basis upon which the coin will will in fact provide benefits and the plan is has clearly said that when there are there are injuries that result from third parties it's a non covered benefit but the fine and we'll pay benefits under these following circumstances and those circumstances are that you agreed to or in person and if you don't it's considered an overpayment and then the plans over cross referenced overpayment procedures kick him that allows the plan which would have no other opportunity let's say in the case of of where the plan the participant has dissipated the benefits to recoup the benefits that were given only under specific terms how so you're down to about a minute would you save i would like to indicate that  like there's a recent case that was published in the fifth circuit which came out on friday the ria versus submit that in writing i will do that in writing and it talks about the read the enforceability of a summary plan description  where where in fact there is no other plan of benefits and and include and also in this case this court in the picture it was very clear that  court discussed the ability of ski's me plan sponsors or did they discuss but did not address the ability of a plan sponsored to korea eight a plan a benefits which i think is very different from a situation in a mara where you have the plan administrator and you have a document that's conflicting in this case there is no conflict that is tender bill either either you have it you don't have a conflict in substantive terms you don't have a situation like  most of the postmark cases where the grant of discretion is only in a document that is considered a document of a disclosure document in this case the court found a conflict but the reality is that in morning or honors done to camera appearing for the most family plaintiffs in a pelleas may please the court counsel to put this case into perspective it's important to look at what m p i is trying to accomplish with the instant appeal because the only two plan members that they sued in this case have resulted in final judgments against m p i and in favor of the plan members the first one of those was let name all who was severely injured in february two thousand and ten in a very bad car accident when she was an eighteen year old college freshman as an eighteen year old she was an an adult and as judge bolton said no one in her family and no one else in the world can control her decisions for she's so we're we're we're actually aware of that of the facts but i'd like to get you right to where i think we have to go which is to determine whether the district court was correct or incorrect to description is clearly not enforceable plan document as judge ferrer banks decided began how can you possibly get any benefits of any kind because the trust agreement contains no that if that's correct your honor but number one the plan members don't know what's in that summary plan description they certainly don't know about this trap about a reimbursed i'm asking a more theoretical question or a summary plan description is not a plan document them there are no benefits payable because there is no plan document that contains any right to any benefits them doesn't your clients necessarily have to lose no then it would be an  illusory plan and norman moles nearly a quarter century of work for the movie studios as a wrangler and putting in his union dues every month every year and since two thousand and thirteen making direct payments to the i plan for health benefits would be all for not well but aren't there cases that say that a court is not entitled to reform as and reformation of a contract on a recent plan so you would be asking the court to do exactly that to expand upon what you say is the only plan document well not really your honor because that the fact of  undisputed fact in this case but have coverage that you are claiming is correct is the coverage that is provided for in the summary plan description correct ok that's right so what you want to do is pick and choose what you want to say is that the benefits are part of the plan but none of the conditions under which the benefits are paid are it's part of the plan and are just on understand theoretically how you get there well i don't think that you can take an undisputed issue in the case and turn it into a disputed issue in the court of appeal that's why well and then i did i'm trying to take a step back and figure out how legally this works because it's it's about this case but it's also about how the next case comes out or how the next case is analyzed and it seems to me that when the trust agreement provides that a plan of benefits not a listing of payable benefits but a whole plan about benefits will be separately written why that isn't part of the plan to begin with and if it is why the recruitment provision isn't enforceable well because  it's not that precisely set for the plan documents were defectively drafted as judge bolton mentioned the formal plan document is dated two thousand and ten at that time the s p d had been in force for three years it's a two thousand and seven s p d and the article six in the formal plan document is titled plan of benefits and it's drafted in the future tense section three says written plan of benefits after determination of the detail basis upon which payments of benefits is to be made pursuant to this agreement the same shall be specified in writing by appropriate resolution of the directors and was that language in the previous iterations of the trust agreement that predated two thousand and seven i have no idea it's not in the record but each page the cover page of this is that it's revised and updated in two thousand and ten as does each page that i bought it that's fine but if the same provision existed for example in two thousand and five then wouldn't the summary plan description in two thousand and seven have been for appropriate even under your analysis no your honor because this clearly indicates an intent to adopt a different plan of benefits in the future because there they were there missed wrapped in their document and it wasn't corrected until october twenty first two thousand and fourteen when they did adopt all of the reimbursement provisions in their s p d and recruitment and recovery enforceable by m p i except that was a situation in which it actually functioned as a summary there was a separate plan that contained the lot of stuff and the description was short and it conflicted with the other thing that contained a lot of stuff and that's not true here we have the agreement that says has no benefits and none that's correct your honor but are we to assume from that that nobody in  the movie studio plan the m p i plan has been titled to benefit since one thousand no what i would assume from it is that it incorporates by reference the plan of benefits that is titled the summary plan description because that's where all the information is found and that's the point if it expressly fails to do that until two thousand and fourteen up seems to elevate form over substance to me at least well i don't think it does i  respectfully disagree well how without a summary plan description in this case how how could there be an a recent health plan how could your clients draw benefits from that if you're arguing you're arguing and you're arguing vehemently that there shouldn't the summary plan documents is not part of the trust agreement and direct so you should win but plan it's a question of who has the burden who drafts the plan documents well no it's a question of the result here in terms of what's and happening based on your argument if you want what you want you have to be careful because then the question is is there going to be an arisen health plan that your parents your plans can get any benefit well clearly they contemplated that there would be a receipt health plan and there is such a thing as the reasonable expectations doctrine which is codified in a risk in twenty nine c twenty five twenty point one zero two dash three sub al which applies the reasonable expectations doctrine to reimbursement of recovery provisions and the reason why expect summary plan description is actually the plan of benefits but let me ask you a different question in other circuits at least to the question of this type of we couldn't provision has been dealt with i'm not aware of any ninth circuit cases that have dealt with it but it seems to be that proficiency like the one here have been fully enforced by courts what is it about this one other than this question about whether it is or isn't part of the plan i where a reimbursement provision has been enforced against planned members who didn't recover the specifically identifiable fund of the recovery and that is a requirement under the last four supreme court cases the prong requirement has to be for that has to do with whether you're reaching directly for the benefits this is a this is that's why i called it's like garnishing the wages it's not getting the direct and raise and and that's a great example garnishing wages we should bear in mind that most of these arrests of plans are employment based so if the court were to become the first court to ever say that you can go after plan members who recovered nothing and have no ability to pay it back then employers would be able to seize paychecks and i've seen that happen already that's what will happen if this court becomes the first court to ever go there i guess i see no basis whatsoever under the arista exclusive civil enforcement rule stated by the supreme court in the mid eighty's in the pilot life and mass mutual cases or the last four supreme court cases establishing what is necessary to enforce properly enforce a reimbursement provisions and that's a three prong test it has to be for but he says well i'm sorry i was going to ask what's your best your case that squarely supports your argument that  health care plan cannot utilize the overpayment procedures provided in its terms to recoup any over payment benefits the last four supreme court cases on point great west versus new since there sara bo us airways versus mccutcheon and monta neal but the these cases it seems to me only concerned the limitations on plants ability to seek judicial relief under section five zero two that's and it's not just let me finish and then i'll it's not clear to me that they for close all forms of potential extrajudicial relief and it seems like a few circuits have agreed with defense argument that the as here where the rest of the mall family the other three from all family members recovered nothing pendants who were under under the i'm sorry they are dependents for purposes of the plan correct and they have title beneficiaries under a dependents under that right m p i plan yes that's correct they don't have a separate relationship on a separate plan themselves know they're covered and they're covered under the same plan but it goes back to what there's no provision in a recess that says plans can have reimbursement provisions there is a provision in the arista civil enforcement section eleven thirty two eighty three which limits the plan to seeking injunctive relief or other approach appropriate eckel believe this is the only statue we have and that's the statute is there you're the plaintiff there not the plaintiffs correct so while well they did sue name all on a late mandatory counterclaim and norman mole her death and they they forced the name all into bankruptcy they challenge her discharge ability to challenge her personal injury exemption they lost in the bankruptcy court she was discharged that's a final ruling they sued norman model and as the participant they filed this late mandatory counter claim with the court's permission over our objection and in doing so they argued in the pleadings and in a sworn declaration of counsel by ms howe for that lynn a mall was the person who had in possession and control the balance of her recovery which is a requirement of the last four supreme court cases they can only go after the identifiable fund of the recovery in the possession and control of the plan member and based on that judge fair bank granted our trouble be six ruling to dismiss the counter claim against norman on the basis of judicial stoppel i want to go back to this discussion of the reasonable expectations of the parties and this plan of benefits called a summary plan description jerk if your clients were going to have incur medical expenses where would they look for their reasonable expectation of what was covered they would look undoubtedly in the summary plan description because that was the only document provided to them and what they would find it is the only document s that tells them what's covered what's not covered in the extent to which things are to hubbard and so they must have i mean any reasonable member would assume that that was where they would find out what their coverage is or and if that's true doesn't have to be part of the plan does not it's the summary plan description as judge fairbank found in ruled and based on the evidence the summary plan description has only one of the four requisite elements under twenty nine u s c eleven zero two the formal plan the death ration of trust has all four that was the basis for judge fairbanks ruling and it seems to be controlled by cigna vs ammara and becker and pritchard and pritchard involved two documents as we have here couldn't just have the wrong name instead of being called the summary plan description isn't it the plan of benefits contemplated by the well just agree it has a generic that benefits summaries and descriptions in it but there's about five of them because there's various programs health net oxford kaiser the blue shield a self funded planet cetera so there is no document titled plan of benefits thank you  amendments that occurred since then are footnoted at the bottom and the court can see that in fact these provisions that we've referenced are from the original creation of the plan document or scuse me of the trust agreement with regard to the two thousand four amendments which were taken in an abundance of caution the amendments being only fourteen twenty fourteen thank you the amendments only included the reimbursement provisions they didn't like council suggest include the plan of benefits or incorporate the plan of benefits so in this going forward we have been in forcible reimbursement position and to an extent a participant challenges it it's in forcible but there's still no plan of benefits in the trust agreement the structure is very clear there are two governing documents and only one of them specifies the benefits also counsel clearly conflates the scope of different things we're talking about he's saying that in fact the the you cannot design a plan with the recruitment provision and it's not what i'm saying i'm asking whether these extreme limitations they have put on equitable restitution might not be instructive as to the scope of what a legitimate recoupment provision can provide in the plan because as your opposing counsel pointed out there's no case yet where recoupment has been allowed or sought against someone other than the person who received the funds your honor i think that the case is talk about whether recruitment is available as a remedy at all and i i don't quite understand because if you're looking in terms of five zero three a three what the court does is in force equitable terms in accordance with the terms of the plan we