[00:00:11] Speaker 01:
Good morning, Your Honors.

[00:00:12] Speaker 01:
My name is Glenn Cantor.

[00:00:13] Speaker 01:
My co-counsel here is Elizabeth Green, who represents the appellants in this matter.

[00:00:18] Speaker 01:
I'd like to reserve three minutes for rebuttal.

[00:00:23] Speaker 01:
I'd like to start by answering what I suspect is the first question this panel is going to ask me, which is, where is the clear error?

[00:00:32] Speaker 01:
And I'd like to answer that question by taking 21 of our plaintiffs as a group and explain what happened to them.

[00:00:41] Speaker 01:
I don't think I need to individualize them as a group.

[00:00:46] Speaker 02:
Let me maybe preempt what you're about to do because it seems to me you're getting to the second question.

[00:00:54] Speaker 02:
First question would be did the district court err

[00:00:59] Speaker 02:
Selecting the standard of review for its decision That was not where I was going your honor well I get there but frankly it seems to me if the district court is correct that He that the court was to apply an abuse of discretion standard Then and you're not questioning that then

[00:01:27] Speaker 02:
I want to make that clear now because it seems to me that that's a very important question because after that, if we get to the elusive discretion standard, then if you're not going to give me some case law or something that suggests that the trustees were wrong in the discretion that they used in making the determination they did, you're going to lose.

[00:01:54] Speaker 02:
because if they have an abuse of discretion standard that they use and all I'm trying to do is see if they did it right, then I think that's a pretty important decision for us to make here.

[00:02:09] Speaker 01:
Absolutely, Your Honor.

[00:02:11] Speaker 01:
And I was going to get there, but I think the simple answer to that is before 2013,

[00:02:21] Speaker 01:
These claims were administered by Connecticut General.

[00:02:25] Speaker 02:
That doesn't answer the question.

[00:02:27] Speaker 02:
You're trying to argue the facts, and I can understand you want to get to the facts, but frankly the facts only come up after I determine what standard I have to review this under.

[00:02:39] Speaker 01:
Okay.

[00:02:39] Speaker 01:
Your Honor, the standard review is abuse of discretion.

[00:02:42] Speaker 02:
All right.

[00:02:42] Speaker 02:
Then I'm not going to worry.

[00:02:44] Speaker 02:
If it's abuse of discretion, period.

[00:02:46] Speaker 02:
I mean, I got from your brief.

[00:02:48] Speaker 02:
Not period.

[00:02:49] Speaker 01:
Okay.

[00:02:49] Speaker 01:
Not period.

[00:02:50] Speaker 02:
All right.

[00:02:51] Speaker 01:
Go on.

[00:02:51] Speaker 01:
Why isn't it?

[00:02:52] Speaker 01:
Not full abuse of discretion.

[00:02:54] Speaker 01:
The language of the plan affords the trustees abuse discretion, but the Supreme Court has made very clear that discretion can be reduced.

[00:03:04] Speaker 01:
The deference can be greatly reduced if there's a showing of bias or conflict.

[00:03:09] Speaker 01:
Here, before 2013, the claims were administered on a fee-first-service basis.

[00:03:17] Speaker 02:
After that, they hired... Well, that's just that you're arguing inconsistent application of the plan's provisions?

[00:03:23] Speaker 01:
No.

[00:03:24] Speaker 01:
What I'm arguing is that the new administrator was being paid on a contingent basis to find a basis to deny claims.

[00:03:33] Speaker 00:
So is that a reason for a heightened standard of review?

[00:03:36] Speaker 01:
Your Honor, how could it not be?

[00:03:39] Speaker 01:
It's like the home team in a baseball game getting to hire the umpires and say, we're going to pay you a flat fee, but if you make calls that are close in our favor, we'll give you a bonus.

[00:03:50] Speaker 02:
Well, but just a minute.

[00:03:51] Speaker 02:
If you're right that change healthcare has a conflict, that may be, but change healthcare didn't make the decision.

[00:04:01] Speaker 01:
No, they didn't.

[00:04:02] Speaker 02:
In fact, CNF made the decision.

[00:04:05] Speaker 02:
They didn't really make a decision either.

[00:04:07] Speaker 02:
They gave a recommendation to the trustees, and the trustees made the decision.

[00:04:13] Speaker 02:
So there is no conflict with the trustees.

[00:04:15] Speaker 01:
Well, I would respectfully disagree.

[00:04:18] Speaker 01:
Why?

[00:04:18] Speaker 01:
Because the trustees rubber-stamped every single claim that came before them from my clients.

[00:04:24] Speaker 02:
Well, but just a minute.

[00:04:25] Speaker 02:
Every single one.

[00:04:26] Speaker 02:
All you're saying, you're using your best argument, and I, Frank, in front of a jury, you might be very good.

[00:04:32] Speaker 02:
But the honest truth is, I'm looking at the facts as to what happened here.

[00:04:37] Speaker 02:
Change healthcare, you're the ones who say that.

[00:04:40] Speaker 02:
They're the ones who say they have a conflict.

[00:04:43] Speaker 02:
They make a recommendation to Zenith.

[00:04:46] Speaker 02:
Zenith makes a recommendation to the trustees and the trustees make the decision.

[00:04:51] Speaker 02:
I don't see any conflict with the trustees.

[00:04:54] Speaker 02:
They're just taking the decision