outline of the reasons why this court should reverse the denial of benefits or remain in the decision back to the plan administrator i'd like to provide a little bit of context for the shifting decision for the shifting characterizations by about the reasons why they did not mr bo used position before this court is the opposite of the reasons why they gave him in the administrative process for why they denied benefits their current position before this court is that the potential permanent elimination of his job in a restructuring is irrelevant because that wasn't the reason why i was terminated the reason why was terminated was poor performance in the administrative process however they had the opportunity to deny that to deny benefits on that basis and instead said the sole reason why your benefits are being denied it because your position was not permanently limited in a restructuring on september tenth two thousand and fourteen aren't those basically different ways of saying the same thing no other words if you say the reason was not because of position elimination the answer is that it was because of anything else that the rest of the universe comprises right the issue was if they wanted to base it on why he was terminated they could decide that if they have to assess whether the restructuring was the cause they refused to engage in that analysis because they separately said you know what your job wasn't even eliminated the restructuring so we don't have to decide if you were fired for that reason or fired for this reason and that was the reason why they did it so when they wrote his denial of benefits on september tenth two thousand and fourteen clarifying their denial they said job elimination is a prerequisite other issues are relevant and then when they sent the final decision and this is important this is the this is the decision that's at issue on appeal on december two thousand and fourteen there was a one sentence justification for the denial of benefits and it says the plan finds that mr boies sin job was not permanently eliminated but rather he was replaced by mr caskey and that the change in title for the position does not equate to a permanent job limitation out of the plan and now my due in litigation when we were litigating the issue we saw documents for the reasons for his terminations and they fought that saying that that's not that was irrelevant so what i want is but if the position was not a limited what does it matter the position was eliminated and that's essence that's why he was terminated he was terminated because the restructuring permanently eliminated his job at the time of his terminations or later they permit it with his terminations they eliminated that job because they didn't replace it with another general manager and we fought tooth and nail it doesn't have to be the same title right you were you would agree with that if i do it even if you change the title believe everything else the same that doesn't really mean anything that's right but the evidence shows although they didn't allow this evidence to be in the administrative record because despite our efforts to try to get this information in the administrative record the plan administrator refused to consider it and we finally got a document in discovery at the end of discovery it said it's not the same job and so we we said document fifty five dash two which was a document we confronted the plan administrator with in his deposition and it said exactly what voice it's been saying the whole time as we move towards divisions the need for general manager is being a limited the general manager level and title is being phased out and it doesn't say that the business unit manager job is the same it describes how it's different it says they're going to streamline functions so it could be a less complex job with less scope he says it's expected in the future these standalone businesses will consolidate administration and streamline functions when one relative to mr boies and terminations when was that document dated there's not a date on the document but this was the restructuring that was occurring at the time of the germination he wasn't the only one let go i think of you went from eight hundred business units to ninety lots of people were losing their jobs did you did you ask or try to find out when that document was dated so for example i'm going to give you a hypothetical that's not this case mr boies and gets terminated on let's say november first of a given year and a year and a half later that memo comes out it's not necessarily determinative that a year and a half later illinois tool decided to eliminate jobs and mr boies in this position right so it seems to me that the tempora scope of that memo is at least relevant i would agree was happening around the same time it becomes more relevant and more probative to your point if it's very distant in the future it becomes less relevant i would think i would agree with that but i would say the most important point your honor is that these are all the types of questions the plan administrator should have been doing and the planning minister we told him we said this is the reason that boy's hands said i'm entitled to benefits because my job is lemonade in a restructuring and there is not a single restructuring document in the administrative record he refused to look at it and those are the types of questions he should have been asking when he looked at the job description write a new job and he looked at the offer sheet that was given to the replacement he did look at those things and then once those the most important to move item what was the person who can replace your client to do his job responsibilities the based on that scene we made it clear right as we outlined in our briefing and as the plan administrator admit it the actual documents the job description and the offer letter actually describe a smaller position they describe a position for business unit manager of just kept tronics which is just one wasn't subsequent amended or he had both divisions or subdivisions well the plan administrator said although those documents don't say it i was told that he's doing something different and again the point isn't is there some information that the real issue here is that the it plan administrator has an obligation under arrest and to consider all of the information submitted by a plane and then the procedure here violated the minimum procedur i mean this court in mellot versus life insurance company of north america said you cannot even evaluate the decision as to you first determine if the administrative record is complete and the plans expressed terms and the regulations require a plan administrator to consider in and basically ordered i d w to turn over all documents relevant to the terminations and then you took a deposition of the deposition must take of june twenty three that i couldn't find anything in the record or the briefs or whatever would tells me what was produced pursuant to that order before the deposition was taken that i can imagine taking the deposition well out of having the documents first but what i see and i may be wrong in my interpretation of the brace and whatever the orders  on bay twenty three the deposition as is on june twenty three and then there is a motion to compel the discovery that the made twenty three order  required and that was the not not do i have it wrong no i think you have the timing right there were documents produced what was it was i did they produced between may twenty three on the deposition the document was they don't know what document restructuring document that we cited earlier this is one of those that fifty to fifty five dash to fifty five and there were some other documents they produced they produced about five hundred pages worth of documents that this was the only document on restructure well what what was messing it according to the to the motion in july right so in the deposition we confirmed a variety of things we confirmed what information the planet ministry what you know and you have said what he needed to know right and so when we filed the motion to compel after the deposition it was targeted to the most important information that you didn't produce dispossess not just the general restructuring documents although we do what we do need more of these documents because we do need to get to the issues that you are talking about is when were these documents done what are the other documents say we also want documents specific to his business unit i mean mr boysen has testified that there was a specific restructuring plan for his division that would outline it which would better explain the differences in the duties between that new business unit manager and the old general manager but as even this document describes you know you're no longer going to have to supervise h r you're not going to supervise finance marketing sales operations because all of those are getting consolidated and so a new business unit manager isn't going to have the same level of responsibilities as a general manager but again the issue here is just the process wasn't complete he didn't consent let me ask you about the process because one of your claims is that you didn't get full and fair here what is the standard of review no one has specified that this standard for review and i just ran out of time so i don't know if that's that's basically to answer them sure and i just get over it is deferential if the review is to the specific reason which believe the standard of review for whether or not there arose a full and fair review for the court below is based on it's a risk of precedent and would be a standard that would be deferential to the administrators it said that was a part of the the factors the first factor and it is a part of what the court should assure itself that it has a full record before it before it goes on and applies that analysis and i think the court definitely has those assurances here as well talk about in my argument the ins minuteness of soccer let me tell you for least from my perspective and i speak for myself only a couple of concerns i have  reading the briefs and they're not conclusive i haven't looked at every single piece of paper in this record yet but if the basis for the denial is that a job position was not a limited and that was the basis for the denial of the severance benefits right that absolutely did not experience or terminations due to a permanent elimination of his job ok if that's the reason how can it be irrelevant to consider whether the company is making plans to eliminate or downsize the job that mr boies in held and how is it irrelevant to know what the person who is taking over his position whatever that may be has a salary that's different lower the same as mr boies and how are those things irrelevant for the plan administrator your honor i i don't think that those things are relevant and one of the things that i think is a starting point in an answer to that question is what the plan administrator did when he went to look to see why did mr boies and lose his job which was as you said in your question to opposing counsel the flip side of the coin when he was presented the question about did he lose his job due to a permanent elimination of his position he went to look at the separation information as to why it was that mr bo and lost his job and in both reviewing the performance paperwork prior to the terminations and the terminations documentation and selves and in his later interviews of the supervisor and the other people that  were in the h r over that area that investigation was all targeted to find is there information that would show that this was a elimination of a position that would be inclusive of a restructuring that is what the investigation would go to find and i don't think the planet ministry or took the position that such it information if it existed would be irrelevant labor while where you say may be correct as to the initial level determination right but then there is an appeal and in that appeal mr boies and says i need to have the documents that he believes deal with restructuring of the company and he believes the elimination of his position and and the plan administrator says not relevant not going to give them tea if they are that point how can the administrator take that position not look at those documents very importantly your honor there was never able to quest made of the plan administrator in the administrative process for restructuring documents to mr boies and asked for what mr boies in asked for is he asked for a series of things one thing was proof of the company's assertion that there had been a change in title for the position and that information was given to him by the administrator in response when he gave him the copy of the new job description for the well i think what the administrator says is i'm looking at a volume of information that is in front of me and that information is all consistent that this is a performance based discharge you've asked for information or proof that there was a title change i do not believe that title change is going to change my decision but nonetheless here is the documentation reflecting that but my understanding is  his conclusion is dr mostly from interviewing and talking to people i don't think so your honor well it wasn't based on mkhize fees employment records it was based on mr boyce and performance management records his terminations records all of which were person no no i'm talking about in terms of of the job description he then looked at the job description there was an offer letter there was an a i did the district judge order the production on may twenty three of the documents relating to the terminations if they were all in the record your honor that into the court must have been satisfied that something mess no your honor i do not believe it was the judge's order on discovery there said you were ordered to produce all information regarding the plaintiff's terminations to the extent not already produced and very of take the employers word for it it was certainly as counsel we did a very diligent search with the employer to ensure that all information that reflected on his terminations which would include any documents of a restructuring based nature were  oduced that restructuring memo was not in the administrative record right that restructuring memo was not in the administrator there as something missing no that document was never requested of the plan it straighter and that record does not discuss mr boyce and job it does not discuss the elimination of mr boyce or does not discuss it talks about the company's ongoing restructuring efforts and it talks to some degree about title changes and one of those four needles is mr boies in the title one of those titles was mr boies since title but he talks about the job being mapped over to another job titles and that's exactly what the administrator investigated and he got information through a very diligent inquiry including interviews of the supervisors and the h r people who would be in the know on whether or not that title cha you're wrong about that does your case have a problem i'm sorry if i'm wrong about what it is his request to the plan administrator for documents matches what he asked the district for foreign discovery does your case run into problems no i do not believe it does your honor i think you know under this court's holding so if so if he asks for access to the plan administrator right doesn't get it ask for x in discovery and gets it you think the administrative record is complete i think that the administrators of record is to be compiled by a plan administrator exercising reasonable efforts in conducting a reasonable targeted effort to get at information that bears on the claim this court's precedent recognizes the fact that a plan administrator if it does a full and fair review of a claim it doesn't have to be if there are no other sources of direct evidence that event that could have been investigated that were likely to disprove what the evidence that was before the administrator already showed and if the administrator has done what he's eight a review of terminations records it review of the information leading up to the terminations process in the performance management process documents interviews of the supervisors h r people interviews of replacement job descriptions job posting an offer letter an announcement all to find out is this job really the same is it still continued this is pnas and when there was nothing asked of the administrator for restructuring records at the at the claim level it was simply not asked of him not even a dent a fight as a category by mr boyce said if later on a document that turns up that discusses the very same thing that the administrator is already made the decision on about a title change and why that does not reflect that there is a elimination  job because other evidence including evidence showing what that new job is and that is doing the same thing and it's over the same business units that title change document that document the mr bar has is not going to overcome that volume of evidence and that's perfectly consistent with this court's precedent and recognizing the fact that if an administrator does a full and fair review if he does all of these different things to come up with the relevant information it doesn't matter that there may even have been a document that was missed if you will that it depended on great work the very same things that the administrators already investigated and found other evidence about that i think that's too from my perspective that may be too broad a statement because the administration if there had been if there had been a memo a week before from the top executives illinois tool that said we're limited in these positions you know within the next month we're limited in these positions and the administrator had not looked at that document would that be a problem if the administrator has done administrator is or not held to a perfect standard i think it would depend on the circumstance i'm not asking you whether he's got to be perfect i'm asking you the as the administrator have to consider that document in that hypothetical if for example the document was concealed from the administrator not turned over by a supervisor who had the information and instead didn't share it and the administrator has done everything he reasonably can do inquiry to try and get that information which i believe the plan administrator absolutely did here then i'm not sure that that document would say that the administrators decision needs to be overturned especially if it's based on a substantial volume of evidence like you have in this case that the administrator compiled that says look this was not in fact that it in other words that would present only a situation of competing evidence right well what  be administrator say in his deposition he did not look at or consider what you see there were questions asked of him of counsel about certain hypothetical documents concerning disagreements between our hypothetical situations concerning disagreements between mr boies and his supervisor and he said look if there dispense all that's all he said he didn't consider i thought there was a heck of a lot more no i didn't look at these documents i didn't look at this stuff i didn't consider that and there is nothing more than the deposition and those information if you look at isa's those pieces of information those are not information that would go targeted to whether or not mr boies and position was eliminated they just aren't there and at the time with the administrator had been interviewed the supervisor looked at records all that show a performance based discharge and that the judge below ruled our very suggest that the administrator needed to go back further and fact check further and find more evidence of veracity and look at more documents that's a shifting of the burden of the administrator to go find every varnished i think you can figure that we're focusing on the restructuring of the company documents yes and i'm oh i'm sorry and i'm looking at i think the five categories of documents that were requested that the administrator provide there's a variety of of communications during the administration process where we talk about restructuring documents on august eighth two thousand and fourteen page one o seven of the administrative record laurence ash sends a letter because keep in mind there are initial position was that we're not  the restructuring doctrines that we obviously have some interesting we were we were requested restructuring documents on august eighth two thousand and fourteen we said if it's true that no longer any individual serving in the general manager position or restructuring document or communication regarding th is documentation supporting ita debby's assertion that the title general manager was changed across all businesses to business unit manager so he acknowledged our request for restructuring documents in september and this is page one fifteen of the administrative record and his response is the plan is not going to address any company wide title issues as they are not relevant to the question of job i'm hearing so you're interpretations look different in my interpretation of that it's not maybe by implication or stretch but it certainly didn't ask specifically  record during the administrative what he what what is the side taishan of the responses to that that letter so the response to that letter when they send their clarification is on page one fifteen of the administrative record when we asked for documents supporting  regarding the change from general manager to business unit manager in the restructuring we asked for information about other general managers affected by the restructuring that was the second category but they said that none of what was going on elsewhere in the  response page one fifteen and one sixteen of the administrative or of a page of same pages yes so a receiver has certain minimum requirements in the plan a minister has no discretion to not follow them and one of those is to produce to a claim it after the initial determination in prior to appeal all of the records that were relevant all the records that were relied upon they only produced three documents the job offer that the job offer the job description and another job another document about the business unit manager none of the performance documents were produced which is consistent with the notion that they weren't denying benefits on that basis they were only talking about and producing a few documents about whether or not this business unit manager job was the same as the other job and he talks a little what what specific documents because the district court order illinois tool to provide certain documents to you and they provided some so at the end of the day which ones do you think you didn't get that you wanted to get it's not just getting it in litigation it's getting it in the administrator i know but now we're now we're in your district court action challenging the administrators decision so i want to know what documents at the end of the district court process used to will think you were denied access to we were denied access to other restructuring documents we've got one which is just a high level presentation we didn't get the other documents about restructuring we didn't get the documents regarding the specific restructuring that was happening with boy since business unit the other problem that didn't happen with the process was the interviews he talked about interviews the plan administrator never interviewed the two most important people he didn't interview mr boyce in and he didn't interview caskey who replaced him he talked he didn't talk to the two most important people and i'm out of time thanks so much