three minutes and three minutes good morning your honor stink you for hearing oral argument on this matter what i'd like to you first is to start with an apology because of the brief the condition of the brief with multiple fonts looks like a ransom note and it is difficult to read and i was mortified and continually mortified that that's my induction to the ninth circuit and also well  we appreciate that but we did read the brief and even if our eyes had to move you would find to find it was not so we appreciate your comment if that's very generous thank you what i'd like to do is to start off with just some basic explanation of the terms that i believe are the the relevant terms to the rest of consideration if the court thinks that that would be helpful i'd be glad to do that if the court rather just delve into questions then without having me well you know where you're welcome to go where you wish but we come down to is this a retirement plan and so it seems to me that you know there's a few key points that you want to talk about because we're quite familiar with the arrangement and were quite familiar with the recess so i don't know if that will help you in framing your argument well your honor i guess that if the court would think that the hearing of the court doesn't think is created alongside of somerset l o l c which held the plan assets or asset the asset and the worth of somerset l c was a metric by which you turkey's financial understand counsels argument that that's retirement value the shares but that sounds like an issue of fact as to whether a reasonable person or reasonable sure one paragraph five paragraph five automatic investing after reaching age sixty two regardless of how old is he how long he worked or twenty years of informing either of those would appear to be tied to what is commonly known think sixty  necessarily a an accident that's in an age when somebody first becomes eligible for social security so the plan and the wording of the plan and those two provisions a reasonably interpreted as providing deferred income and they're not paying you this this bonus if you will or this extra compensation as part of your monthly check true that's not something that you're earning and then they're holding it back but it is compensation which is that just because you get compensation doesn't mean you have a retirement plan one thing seems odd about this that would be not like a retirement plan at all if they can i don't know if you want to call these phantom shares or however the characterized but you can buy and you can sell those before you retire right now you can and you can and obtain your benefits with penalty was a pretty steep penalty prior to reaching twenty years or sixty two years of age yet given that you have to give a year's notice on that if you give years even if you're seventy two you can use want to keep working you can still get year your benefits right if you want to get it before that you can you can basically cash it outright yes just to similarly if it as say the organ purse you can cash in your organ retirement also i don't think that that's something that prevents it from having a primary purpose again i'd only two requirements served number one you have to be an employee to you have to be chosen to participate at the sole discretion of the euterpe the board of directors which is the plan administrator so that sounds a lot like a case where they say that you know it's not a plan but it's it's basically their description discretionary and given to certain individuals for service or in addition to regular compensation so there are i mean there are other factors to consider rather than the primary purpose test there are that's not the only consideration there are two tests there's the donovan test of course and there's the watkins review westinghouse test with respect to the donovan test you have the selection of participants we've talked about that procedure for receiving benefits give one year's notice to terminate the court noted that three intended benefits there's a in paragraph four a and b there's a pretty detailed situation there with respect to determination of the benefits and there's also a mechanism which details what the terms of payment will be of that amount this determined in for a and for be the source of financing is to clear the corporation will pay according to four a and four c so under donovan it certainly seems clear that the requirements are met and i don't i wouldn't see the i don't believe the primary purpose test in any sense so counselor you asked are you saying this is a fact issue and it needs to be remanded for some sort of evidentiary hearing and walked on what the subjective i mean your client may have thought it was a retirement plan when the company might have thought it was a let's keep our people here longer plan how how what if their subjective beliefs are totally contrary what's the what's the also you know i guess you need a written plan that controls here not the expert subjective expectations is what i'm saying well the donovan test is from determined under the standard of a reasonable person from surrounding circumstances there are four factors those are met reasonable person seems like a pretty in that seems like a factual determination and in order for the summary judgment to hold under that standard it would have to be that there is not enough evidence to allow any reasonable juror in other words no reasonable juror could come to the conclusion that this was a plan under the donovan test that's just clearly not true i'm sure the more involved test how i guess the stricter test the watkins test i'd be glad to address that if the court would like but similarly we can look at just briefly the plan provides a policy and method for funding the plan under for a enforced see the employer utopias financial obligation is established there  it's a function of the value of the trust asset and then that is applied some algebraic formulas applied to that and that's the policy in the method for finding the plane when you ask for your benefits there's th economic figure that's the it's the plug into a formula and that determines the time and the amount of the employer's obligation in terms of the ongoing administrative scheme it's interesting that six years after the creation of the plan mr olson used his discretion to i think this is in the  brief factual section used his discretion to kind of protect the asset from asset of the trust against you know falling real estate prices i don't know what greater example there could be of his ability to manage the trust assets he actually exercised it six years into the trust and so that the that and the other factors of discretion who can who's chosen  functions that have a real effect on the participants benefits if you take for instance if you take your retirement in between appraisal years that five percent really matters so with respect to the ongoing administrative scheme it's clear that this plan meets the test i have if anything else that the court would like to address and starts when the trigger event happens and the the money comes from you chirpy to the beneficiary and so there's clearly a basis for you know paying to and from the plan under those two tests which are the only multi factor test in the circuit which i would argue have not been supplanted by the primary purpose test demonstrate that this is a risk of plan and even if you use the primary purpose test if you look at the document as a whole and the surrounding circumstances which this gentleman at the time he decides he wants to retire he goes and talks to you to turkey and says hey i want to i want to retire i need to get these things in order that and the time and the timing and the penalties that are provided underpinning paragraph five show that this is deferred income this is meant to judgment and hold that the equity growth plan at issue is not subject to a risk for the following three reasons first the plan's primary purpose was not to defer compensation or provide retirement income second the plan does not identify a source of financing or describe a method of funding third the plan does not involve an ongoing administrate of scheme unless you want to start of the plan is to provide deferred compensation or other retirement benefits my colleague suggested that simply by virtue of the fact that funds might be available after retirement that makes it deferred deferred compensation the cases that the court has seen and that we've said in our briefs say quite the opposite they say just the simple fact that someone might be able to receive some benefits after retirement that doesn't make it deferred compensation or a retirement benefit as we've explained in our brief  about and i'm going to use uses the word systematically deferred compensation that is systematically deferred so that it is received after it after employment has ceased this equity growth plan contains nothing that could suggest that it was set up so that compensation was systematically deferred so that people received it after retirement and as the court knows it was set up as what we view and what my clients intended as a bonus plan as a means of encouraging longevity and rewarding  he was he would have been fully vested by the time he's forty forty five entitled to cash out entirely and continue working with no penalty at that point with no penalty at that point absolutely and continued working with no penalty at all so i don't believe there was i believe the district court was correct in deciding that this is not a situation this is not a plan mr winter spoke to two different tests that on an test and the the walking test he called it under but under either of those tests there has to be under donovan a source of financing under walk under a method of funding in the equity growth plan there is no information at all to describe how payments would be made into the plan and it's important to ninth circuit at six has explained provides for an individual account for each participant and for benefits based solely upon the amount contributed to the to the participants account there is no no information or suggestion at all that payments were going to be made into an account held for the benefit of the participants there's no information at all to explain how  how payments would be made into the plan at all the plan simply states that participants would receive phantom shares in somerset l l c which owned a house the intent was to allow   would enjoy the benefit that increased equity hence the term equity growth way and it is a contract with the employee would you say would you agree that  trial court looked at it as an summary judgment i'm going to go this way or this way that it was not contemplated that there was going to be a trial or anything was there i don't believe so be from the court as to whether or not this is what i mean the mr miller subjective belief about what he signed and what it man is not controlling is it that's my position that's my knows the that's that's a requirement that came out of a number of different cases starting with the supreme court case for halifax packing coverts this coin and has been refined at length  in the ninth circuit based on the lardy versus pace membership case until the labors aggregate agric hack and vogue versus impacts what we know as a result performed with regard to the administration of the plan here there is no such ongoing particularized discretionary analysis that that seeks to determine what discretionary duty in terms of management that was exercised six years after a plan was created there was an assessment of the real estate market a desire a stated desire to protect the the l l c from that and an exercise of that  discretion in selling the only measuring stick asset if you will from the from the trust and i say trust but the fun with respect to motive why did this plane exist there can be lots of motives i say i would posit that it's probably common that one of the reasons employers have pension plans is to encourage loyalty and i would say if for instance well that's one too is the intention or stated intention only goes so over the people who create the plan if my motive in doing so and i'm not saying this was true here is dishonest because i just want to steal from my employees and i'm not saying that's what happened here that's not going to really remove the plan from a risk so i would hope you know i mean i think what you're saying it either is or it isn't no matter what your subjective and and i would just in closing i would move to i think pages twelve and thirteen of the the polies brief six years receiving a copy of the e g p plaintiff had his first conversation about it started when he said i want to start getting myself lined up for retirement when he asked about how much this is worth olson explained the information we contained in when you look at that scenario and i move to page twenty three my colleague explains that the court explain that congress and acted arista to deal with a lack of information and safeguards concerning the operation of employee benefits plans i would say that this situation is precisely the safeguard that was designed to protect employees against when it came to retirement time all the wheels fell off and even though it says retirement and even though it says planned and a reasonable person in the construction industry would in word or just someone without a j d would see this is a retirement plan in spite of all that