wrongful termination but also because he did not suffer any compensable harm until the last day of his employment the second point is that if given leave to amend mr rich could allege facts demonstrating that the stock plan is not a bonus program and third even if it bonus program the stock plan is still subject to a risk because none of the booz allen partners were paid for their stock until their employment had terminated starting with the sufficiency of the allegations the district court here utilized an overly well i think three reasons your honor firstly i would suggest and submit that the second one a complaint does state a wrong claim for wrongful termination here the district court i believe assumed that mr rich had to express lee state that terminations was a breach of contract mr ridge only needs to allege facts demonstrating what is at issue in a lawsuit and i think the district court noted that it was quite obvious that what was at issue in the lawsuit here was that mr rich was suing over the loss of his termination it didn't suggest the at his ultimate decision to resign was the preach of contract so how do we how do we get a wrongful termination claim from a second  complaint well i would start by saying i believe that is the totality of the circumstances and all of the allegations in the complaint as the district court noted made it quite obvious he was suing over the loss of his employment i would also submit their better graph you would point  that really states a wrongful termination claim your honors i would point to paragraphs four thirty four and then four thirty nine three four forty three most notably a paragraph or thirty nine mr rich alleges that he was not a not employee he was not subject to the upper on policy in the could not be terminated in the absence of a poor assessment from he then goes on to note that his assessment was that very positive that's paragraph eighty and that he was nonetheless terminated  i think importantly though why did you seek to amend to specifically allege rule for terminations and claim if you had properly pled it you know in the second amended complaint because the district court here your honor erred in concluding virtue of an improper assessment even that claim is timely under california quite california law your honor and that's the mccaskey case which is really critical in this i claim is really bothered by this that your limitations and respectfully your honor it is not the breach of contract the statue of limitations does not begin to run upon the breach that is the law that the district court relied on is the law that booz allen has proffered here and it is incorrect under california law specifically mccaskey the statute of limitations for breach of contract claim begins to run only when the employee suffers compensable harm and in mccaskey as is the case here mr rich only suffered compensable harm on the last day of his employment that's when his but that's what termination claims alleged but the court noted that there was no inherent relationship between the two claims the employees there suggested that the employer interfered with their ability to meet their quotas that that alleged interference began on april first two thousand and one they did not bring their claim until over four years later the district court granted summary judy cation to the employer on structure limitations grounds and the california court of appeals reversed and expressly rejected the legal proposition that booz proffering here and that the district court relied on below which is the statue of limitations begins to run of the breach as the court of appeals noted in mccaskey and correctly is that mr rich was entitled to nothing but perhaps nominal  damages when he was first notified that he would be directed to retire there are a number of intervening event that could have occurred that would have made that breach harmless but importantly i think this went to your question judge bach i'm sorry for getting there in a circuitous manner there is no prejudice here if mr rich is required to expressly allege that his terminations also breach there's no prejudice and that's because the case that's going to go to the trier of fact here is going to be a very simple was mr rich terminated for not complying with the op wrong policy a policy from which he was contractually exempt yet he wasn't terminated just to get things straight he resigned correct you know you're under and under california law and this is the right i want to have a constructive discharge because or was he actually hence unless you choose to retire and you can either get your benefits or not get your benefit as well as he told that he would be terminated unless he retired i believe so your honor i believe the indication as it was here which is is that you can either retire and get your retirement benefits or not retire and likely be terminated and get it all together different package their health and then he would likely be terminated or did they tell him he had to turn his his program around or whatever it was i'm sorry we are discussing romano or this case your honor this case no your honor he the implication was always either you comply with the direction to retire or you can be counseled on that that was the pattern  practice of booz allen and that's what mr rich understood it to be i didn't understand that could you repeat that what were the choices he was given when he had the performance review he could either begin a retirement process or the possibility would be that he would be counseled on which is the the language that goes on use for have your employment terminated but getting back to what what this trial would be and why there is no prejudice this trial would be about whether  allen terminate his employment or directed that he be retired for not complying with the upper arm policy or for some other reason and all the discovery on those issues has been completed there's been discovery about the documents that mr rich content make up his employment contract there's been discovery on what mr rich contends are the limitations on blue zones right to terminate employees and there's been discovery on why mr rich was in fact directed to retire there's nothing more that booz allen wo possibly need to adequately defend this lawsuit and i suggest that it should go to the jury or as our i see that i only have a few minutes left i would like to move to the arista claim if that's ok the district court dismissed the arista claim with prejudice in this court reviews that terminations do novo and it reverses unless it's clear that mr rich can't add any allegations to state a claim here i would submit that reversal is appropriate because mr rich can certainly allege facts demonstrating that the stock plan is not a bonus program but instead is akin to a mandatory deferred compensation program that had as its purpose the funding of booz allen capital needs through employee contributions in lieu of outside financing and that that was the primary purpose isn't even subject to reasonable dispute because doug swenson an officer from who's on it admitted as much this is your for ninety he says and i quote the primary purpose of a stock program is to provide capital to the firm that was reiterated by that strength in your case how does that make this a retirement plan or a supply it would not show that it's a retirement plan but it certainly demonstrates that the court was incorrect we concluded this was a bonus program all that mr ridge needs to show to demonstrate that the stock plan is subject to a risk is that as a result of the plans surrounding circumstances there was eighty for all of income  the termination of employment and he certainly can do that mr rich will allege that mr anderson in the one nine hundred ninety five minute this is it your for sixty two he indicated that partners are and i quote expected to hold their shares until they leave the firm and quote that's exactly what booz allen partners did mr rich have given leave will allege that the entire reason that all of the booz allen partners held on to their stock is because that was the manner that the plan was administered and that was the manner that the plan was communicated to them and those allegations alone are sufficient to demonstrate that the stock plan is a pension plan your respective of whether it's considered a bonus primary purpose of the plan is the main focus i'm just curious as to what the proper stand that is by which we evaluate this and that's that is a matter of law can it not be applied by the district court as a matter of law by balance he would have the fact there will by focusing on what might be the primary purpose of the plan which of the dominant factors here you're i certainly think that the district that a district court on a motion to dismiss on certain alleged facts could determine that a plan is is not subject to rest of the question is whether it is clear what's the path to apply what i would submit that for the role of income there is no test you look at the surrounding circumstances and i  understand that the district court here identified factors from other cases but there is no there is no so are you having any any plan that results in income being paid later is it ressa plan is that what you would no your honor if if a standard is going to be made it would be made by this court but i would submit that your court the court need not do that in this case you only need determine whether mr ridge can allege allegations that the deferral of income was a result of the way the plan was administered in the serial case a single allegation that the employer suggested that the plan would be a good retirement vehicle was sound found sufficient seemed to be suggesting that certainly here the threshold is is met whatever that threshold maybe because mr rich will allege that one hundred percent of the plan participants deferred their income until the termination employment because they were told to do so by their employer i'll save my time thank you thank you may please the court my name scott ballenger here for the happily booz allen hamilton if i may i think i'd like to start with a few thoughts about the contract case so mr rich wants to say that that i pled a wrongful termination claim  all along or at least that whatever the differences were they just went to the legal theory and not to anything important about the facts judge patel you have supervised this litigation for many years and strongly disagreed in his opinion denying reconsideration judge battalion explains that he and judge an elbow had scrutinized various iterations of this complaint four times and each time it was perfectly clear to an experienced judge that the only promise and breach of promise alleged in this complaint was a promise to provide a review consistent with the opinion of his peers and a breach of that promise in two thousand and three when the review was delivered and i think it's very important for this court to understand that that wasn't an oversight or bad lawyer in by anyone it was a deliberate strategic decision mr rich and his counsel for starters at the outset of this case mr rich want to do allege and did affirmatively allege in his complaint that his retirement was actually voluntary that was essential to the federal securities claims that he brought which are always worth awful lot more to him than this breach of contract claim which is kind of an afterthought because of the limit on consequential damages he thought he would potentially have a path to recover tens of millions of dollars under the federal securities claims and under those claims his retirement has to be volunt because it has to be an investment decision capable of being influenced by the emissions and the statements that he alleges so he very carefully constructed this breach of contract claim so that he wouldn't have to a budget in a manner that would interfere with the volunt allege to sustain federal securities claims he eventually backed away from that sort of affirmative allegation a volunteer in us but he never change the fundamental nature of the contract claims which were always set up in order  to deflect attention away from the merits of the decision to ask him to retire and instead on to these allegations about the process that was followed in two thousand and three well why because he was also a budging rico claims and intentional interference with tort claims there were all about an allegation that the c e o of booz allen mr schrader had sort of parachuted into this review process in two thousand and three that he says was supposed to be only about the opinion of his group and had corrupted that process allegedly for for personal reasons that was what this case was about and everything was directed at telling that story he didn't never wanted this case to be about the merits of the decision or about whether he had really been promised tenure his own behavior illustrates that he obviously didn't think at the time that he had been promised tenure and that he couldn't be fired so against that were asked to retire which is what happened so against that backdrop i think it's it's really not fair to say that judge patel you committed a gross abuse of discretion by refusing to give mr rich leave to file a fourth amended or a fourth complaint in this case the third amended complaint five years into the medication after summary judgment has been granted against him and you know you can take down the factors undue delay is enough to support that conclusion the fact that it would have been the fourth complaint in the case is enough to support that conclusion the fact that summary judgment  had been granted against him the fact that all of the necessary facts were in his possession from the very beginning of the lawsuit under this case is that this court's cases would be more than sufficient to justify that exercise of discretion the district court has to be able to look at  and say what is your theory and then design a litigation plan to test that theory and then make a ruling and i also you know if there's any doubt about that i'd like to direct the court's attention to judge and now those original  opinion dismissing the first amended complaint at a supplemental excerpt of record three sixty four he says that given his experience in the litigation so far up through two complaints the quote the court has reservations about plaintiff's ability allege in good faith specific facts that support his office nonetheless the court will allow plaintiff one final opportunity to amend his complaint as to the principal defendants that's the sort of thing that a district court has to have discretion to say particularly allen made in october of two thousand and four to reopen the decision and let him stay longer he says that you know sort of too late because his reputation at all he been destroyed and he had no desire to stay at that point obviously he had it a claim that he could have made even if only for for equitable or or injunctive relief at that point but he alleges in his complaint that he suffered tangible damages prior to that point do i read the case correctly it seems t income purposeful consistency and that's the case is the case law has come to a standard you know i think that judge metabo was correct in his overall assessment of the case law that mr rich has not cited a single case from anywhere in the country published or on published that has held a klan subject to arrest on facts that are anything like this your honour's colleague in the southern district judge kaplan recently considered this exact same booz allen plan and ruled that very very different kinds of plants i mean that so those two are about explicit income deferral plans where you can take some part of your actual vested salary your you know that you're contractually entitled to salary and put it into a different vehicle for several years those cases explicitly distinguish murphy versus annex go in m an egg or an international paper and all the cases the judge battalion relied on and say yes we agree the bonus plans are different but when it's your salary and you are explicitly deferring it then the income for periods extending to the termination of a rhythm or matter beyond your own of the department of labor rejected that literalist view of the statute forty years ago and no court has ever has ever applied it that way for the very good reason that  bonus plans like this particular stock bonus plans don't implicate any of the concerns that are wrestlers path was passed to address iris is mostly about if you take something that someone is owed and then you promise to give it to them later rather than now you need to have all kinds of protections to make sure that the plan is fully funded and the best in requirements are reasonable and the department of labor determined that nobody ever intended for stock bonus plans or anything like them to be covered and so it wrote that regulation that the courts have sort of dismissed as a matter of law anyway so on the substantive merits arista says that mr rich's intitled to quote recover benefits due to him under the terms of his plan that section eleven thirty two a one b the claim for benefits claim and it's undisputed in this case that he got exactly what he's do under the terms of this plan now he alleges that he also has a breach of fiduciary duty claim and that's going to solve his problem but it is also clear that both the supreme court and this court have held several times that there is no such thing as a breach of fiduciary duty claim for individual benefits under arrest that's why sources for arising from this court were rude versus the wolf from the supreme court clearly held that the only breach of fiduciary claim recognized by arista is a me out in two thousand and seven they should've let me stay and participate in the carlisle transaction which by the way nobody knew about at that point and that is clearly a claim for individual benefits in fact the delaware supreme court very pointedly said on these exact facts there is no delaware state law reach a fiduciary duty claim here because the essence of the claim is that you should have done something that would have that we should've done something that would have helped you but would hurt everybody else in the these claims are clearly time part he agrees that the statute of limitations for rest of claims is borrowed from delaware law it's no longer than three years he says that the oh yes but the cruel rule is federal but if there's one thing that we all know in this the federal accrual principles don't help him right the whole point of the moments in ramana cases from the california supreme court was rejecting for wrongful termination claims what otherwise would have been federal accrual principles that absolutely this court held that that claim vest and the clock starts ticking as soon as the employer says on equivocally we're not going to pay you that in the future so so when did mr rich have that kind of notice well he knew in september two thousand and three that he was being asked to retire in a year or two and then there would be a two year period and that therefore he would be cashed out in sometime in two thousand and seven you know that and back in two thousand and three and the statute of limitations is three years if you want to give him the benefit of the doubt and say he didn't know it for sure until he actually retired in march of two thousand and five it's still time barred because three years from march of two thousand and five it's march of two thousand and eight and he filed april first two thousand and nine so that the claim for benefits is clearly time barred again he says maybe i can escape that with a claim for breach of fiduciary duty which he says is six years but it's not if you read the statute closely twenty nine u s c above and thirteen says this is a very unusual the plaintiff knows the facts constituting a violation well again when does he know the facts constituting the breach of fiduciary duty if he's saying the breach of fiduciary duty is the recommendation to retire somehow then he knew that back in september two thousand and three we know that if he's claiming that it was the redemption of his stock we he knew on no later than march twenty fifth the at the end of march two thousand and five that he was retiring and that the plan said in two years we can re start the running of the statutes as to the argument that mr rich got everything he was entitle to under the plan that is incorrect the plan here entitles mr rich to book value twenty four months from his terminations date march thirty first two thousand did not get booked i value he got one hundred forty seven dollars and eighty cents per share less than a year later the same shares are selling for seven hundred and sixty some odd dollars that did novo review here or the review here is whether