the first case on our calendar is one of two tandem cases this is only the regattas versus board of trustees and this is of the welfare fund correct yes thank you would you please proceed please the court my name is robert lee bros counsel for appellant emily d regardless these two cases arise out of emily because emily de regard us went down to the local fifteen welfare fund office in new york trying to make sure that her husband's pension application was in order his application to the central pension fund he was an operating engine near here in new york a member of local fifteen he received his pension benefits from the central pension fund in washington and he received health coverage from the local fifteen welfare fund here in new york back in march first excuse me in january of two thousand and eleven mr di regattas was diagnosed with an operable lung cancer and he continued to work in in march he and he and his wife went down to the local fifteen war and the welfare fund offices where i spoke with introduce to patrick keenan the head staff person of the welfare fund office and mr cain and discussed both pension and welfare fund eligibility with m got us when he was ready to retire and the reason was mr keenan had called the pension fund office in washington told them that the regattas were coming in and the pension fund sent them a bit of a statement with a retirement date of april first describing which how much mr de rogatis might get under different forms of his pension the pension fund authorized worker to elect fifty to seventy five or one hundred percent survivor benefit the one hundred percent was the largest survivor benefit that the pension fund provided and so they had a discussion and then mister mr cain and sent them a can of confirmation letter i think we understand the fact that we read the briefs the facts understand or confusing in certain respects but i think we're on to get right to the point about the welfare fund case the district court granted summary judgment of the welfare fund on the ground that the the he would lose her husband loses health benefits if he wasn't sixty two or didn't have a social security disability ward this was inherently misleading and coercive no person taking care of a dying intent it was it was nobody listening it was such nobody hearing this taking care of a dying spouse could do anything but he was just listened to and if it's right in your allegations that he gave incomplete case the harder issue which the district court never got to is remedies can you get make whole relief this is this is a question i want to ask you about which is in the suit against the welfare fund you take it your claims if successful what you want is damages from the welfare fund in the amount of the lost pension benefits that's correct and in the suit against the pension fund you're asking for the pension because only the pension fund would have the responsibly to pay the pension but you're saying no fair fund it would be damages would be damaging the amount of the pain the amount of the pension reform or final thing of course these remedies or alternative remedies that's great you can't you cannot not double recover and at the end the damage award then would be for the fifty percent that has not been paid of the pension but it would be a form of you have to justice prior wrote that nine years earlier in the villa in the supreme court case of the versus develop that was a preemption case in which the court ruled that a claim of negligence against a doctor for not prescribing medicine was was a state law that had a state law claim and went to the supreme court the court ruled claim preempted but justice ginsburg concurring with justice justice principle ginsburg concurred justice prior joining that opinion been fleshed out yet we haven't seen cases coming up to the circuit where consequential damages have been awarded one case is a gone to the circuit as in this quarter bout two years ago where a district court had stated that provided that you are sixty two or have a social security disability award your medical benefits will continue that's what lopez told her that if he'd provide he said provided the implication clearly being if you're not two what would happen if someone retired in the normal course age sixty five whatever whatever is the retirement age under the plan what would happen would there be retirement medical benefits they had two plans have different requirements be a welfare fund has i think age sixty five has twenty five years of service to continue your medical benefits and retirement mr d regattas didn't qualify for retiree benefits under the medical fund but if so if they're so is it not literally accurate but misleading that literally accurate that if you retired early you would eventually lose medical coverage the problem is the medical coverage continues the medical coverage that you have earned continues right so mr as specifically applied to mr de regardless he would have continued to receive medical benefits through the following april whether he retired or not because he had earned them after that that would cease something out and i may be wrong about five things awaiting tell me all the things i'm wrong about  april at april he would run out of earned medical benefits but a cobra would be available for another eighteen months if you survive those eighteen months after april at that point if he he would not any longer be eligible for medical benefits under the plan is that roughly correct that's right roger and you are correct in saying it's misleading because she told well what's misleading is of course as applied to the particular circumstances of mr de vere a goddess faced coldly and rationally and recognizing that his wife might be hoping for a miracle the likelihood was that he would not survive the expiration of medical benefits and so that it was not perhaps a wise bit of advice to say in this particular case that it was a mistake to retire that's correct because she had told mr lopez that my husband's in the hospital has an operable cancer uneasy wants to retire the age of mr lopez new and no i mean in the thing that might be considered misleading is when you say if you retire you will lose the medical benefits well maybe it's true that you would lose them eventually but the employer the impression that someone hearing it might take away is that lives regulates immediately that's in fact what happened because the record shows she immediately went into when she signed up for disability hassani her husband of her disability benefits she told the lady helping her my daughter i'm glad i came here if i sent the application in we would have been we would have lost our medical that's what she understood this to mean i see that i have gone over my time and i'd like to reserve some good morning your honour's my name is james steinberg along with my colleague joseph green we represent the apologies the local fifteen board of trustees before i go into my formal comments about the basis for the decision a summary judgment and judgment man's decision lopez in their july or august two thousand and eleven meeting their husband was suffering from an operable cancer instead the record shows that the first time that he ever took into consideration or recognize their her husband's condition was unfortunately  terminal was early september of two thousand and eleven instead mr lopez this testimony is that the focus upon their discussion the former at the at the fund office was about health coverage and from there obviously the case rolls into the facts that judge mcmahon relied upon for purposes of granting my client's summary judgment with regard to that summary judgment motion the judge properly found that the appellate is employee mr lopez was not fiduciary under riseth because he neither s i don't know that anything in this case turns on a special fiduciary responsibility if someone must perhaps we're talking about a negligent misrepresentation is that the idea that only a fiduciary would be liable for negligent misrepresentation as i understand the takur decision which judge mcmahon relied upon in reaching her decision is the threshold issue is determining whether or not the employee who has ministerial duties as we articulated in our brief is not even a fiduciary responsibility it's not about the duty to put the beneficiary first it's a duty imposed by statute to provide accurate and clear information about what the plan provides i think isn't that the the duty that's in question that is the do absolutely that's the duty in class and that's a duty that the fund has now if the fund provides for example an unclear s p d and on top of that says if you have any questions come see this person and that person gives misleading information why does it matter that the person to whom the fund delegated the responsibility of clarifying a confusing s p d and i recognize you going to have an issue about whether it's confusing why assume for the sake of the argument for the moment that the s p d is not clear and the fund has said if you need information go see in effect mr lopez and mr lopez fails to clarify and in fact gives the wrong answer about what the fund provides why hasn't the fund reached that duty regardless of whether lopez counts himself as a  and i don't i would not disagree with that analysis understated backor those are the two components that judge macmahon focused upon her in connection with the reconsideration i know that's so let me focus on the s p d question of clarity  heading eligibility requirements for members who elect early retirement that's the language you're relying on right correct your honor now the problem is if you look at the whole context if you look just at that you might say well that's tolerably clear certainly to a lawyer it is whether it might be to a layperson or not in fact both sides agree that it's so clear that you don't there's no dispute about what it means right but if you look at the thing in context that heading is eligibility requirements is in a certain size fund if you look back to page e file of there is a much larger heading that says fifteen d eligibility am i right that fifteen d refers to a different local than the one that mr de regattas belonged to correct a different division of local he's in local fifteen and there are different benefits depending on and different eligibility rules depending on if you're in fifteen fifteen eight fifteen c fifteen correct but now you've got this big heading fifteen dhea eligibility and then you go on and there are lots of things that say there are about fifteen de then there's something about reciprocity which relates to all the different divisions but at the same time it's also about fifteen v and then you come to the same headings about members who elect normal retirement in early requirement why wouldn't a person think that this is still the fifteen d section why would you even be looking if you're looking at this extremely long no table of contents no index no cross reference plan why wouldn't a reasonable person think that we have switched from e one eligibility to eat to fifteen fifteen a eligibility to eat three fifteen c eligibility all of these i can get away how many points it is but it's a rather large fund then only five fifteen the eligibility and then you never get another heading of that size until you get to the next topic in roman ether teen why doesn't that alone suggest that a reasonable person would have no idea that this eligibility for people who elect early retirement applies to someone in local fifteen because you have to look at in the context of the entire s p d and joint penna sixty two provides the definitions and the explanations for one's initial eligibility as a local fifteen i say that generically as a local fifteen operating engineer and this is also your honor is is within the record of mrs d irregardless understanding the concept of how coverage accrued under the plan and even her original expectations short of when she speaks to mr lopez as to when the eligibility of her husband shall expire she was under the impression up until when she meets with mr lopez that she has coverage should say she and her husband had coverage through april two thousand and twelve every impression she had why would a reasonable person this is several assume that that is an unambiguous aspect of the plan when as i look at the plan a reasonable person might either wherever she got her impression that it would continue through april a reasonable person might look at this and never find that vision at all and if he found it might reasonably think well i think that applies to me it's about early retirement and that's my topic on the other hand it doesn't seem to it's not listed under fifteen eligibility it's listed under ability then you go see lopez and suddenly you're told it doesn't apply to you apparently because going to lose your benefits because i'm between pages sixty five and the joint appendix through sixty eight the sections with regard to a and d for eligibility requirements for so specific divisions of the union are spelled out based on the number of hours they want you can you explain yes yes why it is that when i get to early retirement or the previous  l retirement that's in the same saw is as all of the subheadings of fifteen why would i think that that is not still a part of the eligibility for fifteen because in between those two sections there's a section here a reference you're on regarding reciprocity and the reciprocity section was commentating the requirements of reciprocity for all divisions of local fifteen and couple there after that there's only these particular sections as to what your requirements are to receive regular pension if you well an early retirement pension if you will or if you want to apply for social security disability award which is which starts on the next page there's no redundancy and maybe there are no such requirements  fifty maybe just doesn't matter maybe once you're eligible under fifteen year old you will forever why would why would anyone look there in this because which has a very confusing format because the expectations of every participant of the plan is that something day in time they are going to be eligible for certain types of pension benefits and what starts on this page are those specific types of benefits that are available on their wrists and under the local fifteen  what tells me even to look at that while you go on again as we explained in our briefs the judgment man you identify under the terms of eligibility i mean granted as i said as we wrote in our brief to judge a band there is not a traditional table of contents there is a color code what nor index nor index or section labeled retirement correct but eligibility rolls into the different rules with regard to their identify the different types of pensions through the terms eligibility hundred fifty six pages yes and unfortunately you honour's i work with lots of us a few days this is where s p these are now the documents themselves which once upon a time work was were simplistic in the sense of thirty pages of more or broke down benefits very succinctly welfare office yes and going back to the earlier questions that's been the case all shows that there's plenty of opportunities and plenty of scenarios whereby participants go to where i'm going to find identify mr lopez being employee under the statute for purposes to inquire about what you plan of benefits are how do i become eligible for these benefits as mr lopez testified he would often ask answer questions how do i keep benefits or obtain benefits upon retirement those are the expectations of participants of the plan the cancer here was notably as an adequate jasmine just mcmahon found she said we go upon the premise that the answer is inadequate or it's misleading and then the then this scenario on the back o becomes what whether or not the court determines that the s p d provides clear information so that it can contradict the misleading or incorrect information that's provided by the ministerial employee and as judgment man don't know what would be in the medical benefits but something like how to get approval for an operation just somehow it had been transposed inaccurately and that was there surely you would not in that case be telling me that because under that misleading eading you had a very crystal clear explanation of this particular problem about retirement benefits a member participant in the plan should have found as i understand back to your honor hopefully i'm  would be contending under my hypothetical that the fact that what it says is clear even though no one would ever looking for this answer would would ever look there would still be ok i would disagree respectfully with the there to say she understood that based upon the hours being redeemed coverage was extended for a certain period time in the future redemptions of stamps and i are husband has said you're going to lose your medical benefits if you didn't for a moment question it or say but wait a minute i understood that it was this way why are you telling me and there's nothing and there's nothing in the record that reflects that that portion of that type of a conversation occurred but i guess i would fall back to back up and say that the if that was a bell and whistle that went into her head an mr lopez says to her hey don't don't don't retire now if you retire you going to lose your health cover which is which in certain respects is actually an accurate and a comment it's the issue of a well says around that commonwealth is around the conversation contention that you're making that assuming that we concluded that there was a problem here that the b b was not clear enough and there was misleading  information provided or are you arguing that nevertheless there is not an available remedy against the welfare fund in the form that mr lee bros was arguing for itself again i apologize we didn't we didn't brief it before your honor's but my recollection of the brief before judge macmahon on the issue which he obviously didn't do that had to address is i find it can only a difficult relief to provide maybe and  me if you didn't brief it to us have you waived that kind of argument or is that something that if we disagree with you about the application of the state of becker we would then have to  district court to fashion appropriate relief and you'd still able to make those arguments i would say yes yes you know i mean there's nothing in either a tell us briefing or are stressing surcharge and again those have not you have you have not argued to us suppose this is a purely hypothetical question i'm not telling you what i think i don't know what i think yet and i certainly know my colleagues think about the liability issue if you want to call it that with respect to remedies if we were to agree with you that th is case falls within the state of becker in the sense that the fund has violated some kind of duty you have said well the remedy is they should pay damages and the nature equitable of all you're going to call it damages because it's equitable but something like damages in the amount of the missing fifty percent pension benefit should come from the welfare fund district worked it first crack at that what do you say to that because i remember in your brief an argument in the nature of what you said here about remedies today maybe i missed it or wasn't focused on it  so should we in that event send it back to the district court or do you think the law is somehow so clear that you know we should just say yet reversed summary judgment for the plaintiff were not i guess not some object is not fact issues about what actually was said and what actually went on but well act actually i i don't believe there are any with respect to your question about remedies the remedy issue is intertwined with how the court disposes of the pension fund case because if the court ends up ordering reverses the vacated summary judgment escapes becomes moot in the fact if the the arguing in the pension fund case that the court has the authority to to order in the pension fund case they remain for the purpose of remaining to the plan for calculation of damages under the sway back case inherently into interfering with the submitting of the application and benefit election form it's a hard question it's a hard question because but assuming it wasn't intertwined i believe that in light of the the the court the the supreme court's authorization of make cold relief and if the if the if the court were to believe that justice pryor was in make in writing a merrill was referring to professor lang bines article that he had joined justice ginsburg's opinion in nine years earlier  describing may call relief that i think the court does have the authority to order that the root relief would be whatever pension benefits are not recovered from the central pension fund whatever the differences between what she's getting and what the benefit would be under the central pension fund is the appropriate measure of damages pending on how we resolved each case because they are intertwined they were into there would be a lot of different possibilities as to what happens next but in principle the court could order that the measure or state that the measure of damages is consequential damages  light of professor lang bines fairly comprehensive and authoritative article here what you're saying and so i think i have your argument on that thank you very good then well we're going to proceed then to