refused to honor the bargain struck by the contracting parties that rhode island law would govern their relationship and secondly the court misapplied california law to invalidate the discretionary clause that second issue is the same issue that you've heard about this morning in the better case in our case you don't need to reach that issue if you agree that rhode island law should have been applied in this case so i'll begin with the choice of law issue this circuit has held that when the choice of law is made and a risk the contract should be followed it's not unreasonable or fundamentally unfair that's the wine case in fact the court there explained why choice of law clauses are beneficial to the plan and not unfair to the beneficiary now the policy here said this policy is delivered in rhode island and is governed by its watch there's also evidence in the record the policy was issued in rhode island to rhode island trust under w this court should honor this provision unless it's unreasonable or unfair now to determine whether it's unreasonable or unfair the court should look at the circumstances existing when the contract was for cowden became a participant ten years later in april nineteen ninety nine no one compelled cowden to join the group child and chose to provide this benefit to it california employee the benefit of california law or the argument made on the other side at the time the policy was issued as you stated in rhode island to a rhode island trust it was interest would be it california and that therefore someone would have an interest in it not trust who was not from rhode island and they would be buying into that trust and they would not be from rhode island therefore the beneficiaries of the trust would be in a foreign jurisdiction well there's no evidence about what they anticipated at the time but participants then they most of anticipation arizona participants texas participants new mexico participants forty nine other states could have participated in this trust the whole point of the choice of law clause is to prevent the loss of forty nine states from coming into play depending on where a claim came from a plan that has to deal with the laws of forty nine states is going to be more expensive and it's going to be a more  permits and the contract here contains a very clear discretionary choice of law not choice of forum clause if and forcible that's correct as it is the involved california federal court in counseling in california point i don't know but it's correct the climate was not obliged to fly across the country to appear in rhode island it was a choice of law and not the choice of form clause if we were t because there was no claim of conflict of interest in the district court body comes into play if the claimant contends that heightened skepticism should be applied because there is a conflict of interest of some sort there was no such claim in this case so that's why i'm suggesting this court itself if we ever get to the district court ever get to that well the district court first entertained a summary adjudication motion on standard of review  believe the issue has been waived in this case if this court disagreed then i suppose a body would inform the abuse of discretion analysis if the claimant think that's actually what i was asking review the claim decision under an abuse of discretion standard which is less favorable to the plaintiff in this case of course this court and the u s supreme court have said discretionary clauses are perfectly appropriate in a risk the contract so they can't be unreasonable or fundamentally fundamentally unfair they've been approved by both this court and the u s supreme court and that standard applies where is here t amended by this provision this policy is amended to meet the minimum requires of those laws yes your honor the policy was issued in rhode island so that provision means that if the policy is in conflict with rhode island it is deemed amended to conform to rhode island law that's correct turning to the discretionary clause issue if the court is interested in hearing more on that which you've heard about it in the beta case determine on this record that there was no abuse of discretion by the company this there is nothing else to be adjudicated in the trial court the record is that the record act the law tells us what constitutes a abuse of discretion failing to follow the law ignoring the plain language of the policy arbitrarily failing to credit evidence presented by the claimant those are the factors that can support an abuse of discretion finding none of those are present here in fact the district court said neither side is entitled to a summary judgment here go back and apply the right standard as far as you know we don't educate factual things here and i understand i understand i don't believe any factual findings are required then you would argue to the court there's no factual but i don't know what you plateau we asked you to stay i didn't realize you had both cases court didn't find it necessary to consider because of her decision that it was that the standard of review was due no vote for example she didn't consider the effect of this but the determination by both the social security administration and the state of california as employment development department that mr sandberg became disabled on february twenty second she didn't reach that because she determined that even if you didn't become disabled and tell march first he point one or something but hwang seems to say that we should respect the choice of law contractual decisions rather we steer clear around or over  in preparing its benefits plan that it would select as the state law should govern the state where the employer was located and most of its employees were located which was massachusetts that's not true here in this case the employer is located in california and all of the seven participating employees in the plan are located in california your court your coyness beneficiary of this contract right well referenced in the insurance policy the in trust agreement was never put into the record but this trust is not an arrest supplant the trust and that's clear that's the eleventh circuit so analysis in the donovan v dillingham ca because this trust is not established by an employer for the benefit of its employees it is not an arrest of plan so we know that the trust is not an arrest a plan and i think that calls into question whether the contract which is the charm that's used in writing i also want to point out a factual question that's raised by the record that judge alston didn't find it necessary to reach and that is  and that is the question whether that napster policy is actually the governing contract here now the master policy begins on page four twenty one of the administrative record of the second volume of the  that policy is policy number ninety seven two hundred and it states that the policyholder is the trust now following that directly in the administrative records starting at page four forty two is the statement of the contract provisions that provide that applies specifically to count not a motive and that document says that the policy number is for thirty three and the policyholder is counted in automotive and in every piece of yone else well there's the policy states there is one page in the record that states the policy number ninety seven two hundred was delivered in rhode island the documents that to we are for forty two and subsequent pages so that the policyholders coude not emotive the policy numbers for thirty three not a motive is located in california and you are that's totally correct but let me answer if we were to follow your trust actuarially made the premium with the thought that it would be the views of discretion standard if they thought they were going to go into a fifty state  just on benefits and i each one of the participants is a policy holder and they are go as separate states law would apply that they never would have written the policy for the premium which they envisage when they thought well we're correct that a forum choice is an reasonable where it selects a forum that has no relationship to the employer theorist's a plan or the employees then then the forum choice i other than rhode island that every employer's policy would have separate state standards that's exactly what the supreme court contemplated in metropolitan life insurance company v massachusetts when it said that the congressional decision to preserve state insurance law with respect to arista plans you never have only result induced uniformity because of the application of individual state's laws could you policy number is throughout the record that would be the claimed al letters and so forth there's a there was an issue raised regarding the benefits of a choice of a lot of prevention s any doubts as to the proper form for a case well this suit could not have been brought in rhode island because it receives venue provision states but venue is proper in the state where the plan is judge cowden indicated that there were complaints actually on how they're going to deal with it and then they can make that available to folks across the country and and the benefit to a small employer is they can protect vested participate in a pool with a lot of other people and perhaps gain great stand coverage that they might not be able to get that's the benefit that occurs to me what's wrong with that well for one thing it's hard to believe that there aren't enough small employers in california to aggregate their risk well that's outlaw before you made that choice they presumably surveyed what was available they made choice and they made the plan available for their employees right that's correct but they made that it's not clear that they made the choice of rhode island  made the choice of rhode island law by tell the not a motive the documents pertaining to cabin automotive make clear that it purchased the insurance from a broker here in california whose commission was paid here in california can pay the premiums in well that's not clear there's a document wrong why am i clear why that well there is a document that states that caliban is agreeing to participate in the trust it has a signature line for callen but no signature that's and i think that's a fact question that wasn't developed in the district court because again the district court found that it was inherently and reasonable here to have distrust of law provision the e r site for the the stated in the documents that started to we are four forty two here in california it was built in california well i mean it's sort of i've just read the briefs and i just of course stay on the record but i'm not aware that any allegation was made that of a baby here a baby apply because there is a structural conflict of interest it doesn't matter whether the issue under atwood of whether the conflict tainted the decision making was raised below that's a non issue the only issue under a baby is that there is a structural conflict of interest and a baby says that where a structural conflict of interest exists that conflict must be weighed in applying the abuse of discretion standard that didn't happen here of course because the district court never got to the question of conflict and could not have gotten to the question of conflict as analyzed under a baby  baby hadn't been decided yet  apply a heightened level of skepticism for example as the district court pointed out reliance made no effort to resolve the discrepancies in the record regarding when mr feinberg terminated his employment mr fenn byrd says it was february twenty second the social security administration says it was february twenty second employment development department says it was february twenty second the employer says it was march first so reliance made no effort to investigate these discrepancies and to try to resolve them to determine before making a determination on on on mr fenn bert's claim it simply picked the date that it believed was most favorable to it and decided t beta in two respects one respect one respect in which it's different from beta is that the policy in this case was never proved by the california insurance commissioner so the issue of whether the notice to withdraw earlier exactly that if california law applies then the policy is deemed to comply with california law which the insurance commissioner has said requires that the discretionary clause not be you first on the question whether the master policy here is truly the governing contract that's a completely new issue this morning is the first time i've heard about that if there's any doubt about which contract applies here and we'd be happy to brief that so i think it's been a wave that's never been argued the policyholder is the trust not counting automotive i'm looking at excerpts page two twelve which is the face page of the said that they have a policy number that they were given well there's a policy number on the policy a different policy number than the trust tester said i mean i don't know i just i'm not sure your honor i'm not sure but but there's no doubt about which contract applies there's no doubt it w rhode island policy holder issue ten years before karen joined the plan council briefly mention that the form choice here a form choice of rhode island was unreasonable i respectfully disagree it was completely reasonable because that's where the the policyholder was located right yes i'm sorry the choice of law correct was totally reasonable also counsel raised the question whether cowden signed signed up with the plan because there's no signature on the page in the all proceeded with this case and with the appeal on the assumption that coward is a participant there is never been any dispute about that finally i guess the point that was made there is that least from your opponents point of view it's on clear which policy they were participating in i think that was the argument again that has never been brought up before this morning ok i don't believe it's in the case finally on the commissioner's opinion if the court is interested in further discussion about that i have a lot to say the court may have had a spill of that this morning but briefly the commissioners opinion that the discretionary cla renders the policy illusory simply unsound if that were true if you know if if the discretionary clause were totally