[00:00:00] Speaker 02:
Good morning, Your Honors.

[00:00:01] Speaker 02:
May it please the Court?

[00:00:03] Speaker 02:
My name is Aaron Dawson.

[00:00:04] Speaker 02:
I represent the plaintiff and appellant, Jill Steigelman.

[00:00:11] Speaker 04:
It's Aaron, right?

[00:00:12] Speaker 04:
A-A-R-O-N?

[00:00:13] Speaker 02:
That's correct.

[00:00:14] Speaker 02:
Not to be confused with my co-counsel, Steve Dawson.

[00:00:19] Speaker 02:
We're here because the District Court for the second time found that ERISA preempts Ms.

[00:00:24] Speaker 02:
Steigelman's state law claims and entered judgment against her.

[00:00:28] Speaker 02:
This court should once again reverse for three primary reasons.

[00:00:32] Speaker 02:
This will serve as a bit of a roadmap.

[00:00:34] Speaker 02:
First, the district court violating the rule of mandate and law of the case.

[00:00:39] Speaker 02:
Second, even if that were not true, the Arisa finding is contrary to the law.

[00:00:44] Speaker 02:
Both of these things are reviewed de novo.

[00:00:47] Speaker 02:
And third, regardless of the first two, the finding, the conclusion was based on clearly erroneous findings of fact, which is an abusive discretion standard.

[00:00:56] Speaker 02:
I want to be clear about what we are appealing.

[00:01:01] Speaker 02:
It is our position that in ruling on summary judgment on the question of a risk of preemption, that the district court had no choice but to rule in Steiglman's favor.

[00:01:12] Speaker 02:
And this is appealable because it was based on legal error, no factual disputes remained, no genuine factual disputes, and it wasn't followed by a full trial on all of the issues.

[00:01:23] Speaker 02:
Rather than directly challenging the district court's finding that factual disputes did remain, today I'll primarily be spending my time discussing the final order concluding that ERISA applies.

[00:01:38] Speaker 04:
First... The district court conducted a bench trial?

[00:01:42] Speaker 02:
That's correct.

[00:01:43] Speaker 02:
And I was about to actually give a brief history, procedural history of what got us here.

[00:01:47] Speaker 04:
And your client consented to that?

[00:01:50] Speaker 02:
Well, it was... Or didn't object?

[00:01:53] Speaker 02:
So he did not object.

[00:01:55] Speaker 02:
Yes, that's correct.

[00:01:56] Speaker 02:
The district court denied motions for summary judgment by both parties in order for the parties to go to a bench trial.

[00:02:04] Speaker 02:
Four years ago, when the district court first entered judgment against Ms.

[00:02:09] Speaker 02:
Steigelman, it was based on the conclusion that her long-term disability coverage was pursuant to an insurance benefit plan that she had established or maintained, and thereby was governed by ERISA.

[00:02:22] Speaker 02:
This was based on primarily undisputed facts that the disability coverage offered under this plan, among other types of coverage,

[00:02:30] Speaker 02:
were that Stiegelman was eligible for that because of her membership in a non-profit organization called the Agents Association, or TAA, and that her staff, like all TAA member staff, had access to this insurance coverage as well by virtue of their employment with the TAA member.

[00:02:49] Speaker 02:
For those who enrolled, for those employees of hers who enrolled, Ms.

[00:02:53] Speaker 02:
Stiegelman paid the premiums.

[00:02:55] Speaker 02:
This, based on this, the district court found she'd created an ERISA plan.

[00:02:59] Speaker 02:
On appeal, this court held that though Steigelman's payment of premiums certainly was evidence of the creation of an ERISA plan, it was insufficient, and remanded the case to resolve a single issue of material fact, which was whether Ms.

[00:03:12] Speaker 02:
Steigelman had created eligibility criteria and placed those on the offer to pay her employees premiums.

[00:03:24] Speaker 02:
On remand, the district court resolved that lone factual dispute in Stiglund's favor, and this should have ended the matter.

[00:03:32] Speaker 02:
Instead, the district court analyzed the Orisha issue from square one, including any issue, argument, fact available.

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And this was convenient for Symmetra because it knew that that lone factual dispute was no longer viable.

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It was based on a single piece of evidence, Ms.

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Steigelman's deposition testimony, that this court deemed was insufficient for Symmetra to meet its burden.

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And though given the opportunity, it didn't seek additional evidence, and therefore had no additional evidence.

[00:04:01] Speaker 02:
And so it pivoted to other arguments without new facts.

[00:04:05] Speaker 02:
For example, though it was always known that the TAA plan offered certain kinds of coverage in what it offered, and that some of those coverages were also available to employees' family members, and it was always known what Stiegelman's staff

[00:04:20] Speaker 02:
enrolled in, and what they didn't enroll in, and that they enrolled for themselves, Symmetra on remand began arguing that these facts were evidence that their choices were governed by limitations Steigelman had placed on her payment of premiums.

[00:04:38] Speaker 02:
So the district court again found a reciprocation, supplementing its original basis with primarily two factual findings, that Steigelman indeed placed limitations on her payment of premiums

[00:04:50] Speaker 02:
That is, on the types of coverage she would pay for, and that she would only pay for employees, not their family, not non-employees, and that she had an on-going administrative scheme in place to make sure that these limitations were followed.

[00:05:07] Speaker 02:
The district court also found that Steigelman had delegated the establishment or maintenance of an ERISA plan to a third party.

[00:05:17] Speaker 02:
So with that, I'd like to turn to the rule of mandate discussion.

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On remand, a lower court's conduct must be consistent with the expressed terms and the spirit of the appellate court's decision.

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The party can't use the accident of remand as an opportunity to reopen prior arguments or arguments that should have been asserted before appeal.

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Here, this court found that the district court had erred in finding Steigelman's payment of premiums was sufficient to establish an ERISA plan.

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and identified one issue of material fact and no others, as both sides agreed on remand.

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And in the footnote, it also identified one legal issue that it had not addressed, but the district court, quote, may decide whether it would be appropriate to consider on remand.

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And that was whether TAA itself established the plan as an employer under 29 USC 10025.

[00:06:11] Speaker 02:
That issue is no longer relevant today.

[00:06:13] Speaker 04:
Did the prior panel either explicitly

[00:06:17] Speaker 04:
or impliedly say there was no employee welfare benefit plan?

[00:06:23] Speaker 02:
No, Your Honor.

[00:06:24] Speaker 02:
The prior panel said that the facts don't support that one was created.

[00:06:27] Speaker 01:
I have the prior panel decision in front of me.

[00:06:31] Speaker 01:
I was just re-reviewing it.

[00:06:34] Speaker 01:
The prior panel said that the evidence didn't support that conclusion as a matter of law.

[00:06:39] Speaker 01:
Yes.

[00:06:40] Speaker 01:
And so the district court erred in entering summary judgment, but then did not go on to make any

[00:06:46] Speaker 01:
factual findings, reaching any conclusions, but reverse and remanded.

[00:06:50] Speaker 01:
So the summary judgment order was an error, but I don't see that this disposition limited the issues on remanded the way you're suggesting.

[00:07:02] Speaker 02:
Well, respectfully, Your Honor, I would disagree only to a limited extent in the sense that I think if you read the mandate, you'll see that what the prior panel did make certain factual findings.

[00:07:16] Speaker 02:
For example, the facts were that Steigelman had access to this benefit plan by virtue of her membership and that her staff gained access to that coverage as well by virtue of her membership.

[00:07:29] Speaker 02:
And she paid the premiums, which is unlike what the district court continued to argue on remand, which was that these facts showed Steigelman purchased or obtained the coverage for her employees.

[00:07:42] Speaker 02:
That is contrary to the facts that's described.

[00:07:45] Speaker 00:
Were those facts described in our prior decision, were those agreed upon by the parties?

[00:07:49] Speaker 00:
Were those facts that were indisputable?

[00:07:51] Speaker 02:
Yes, that's correct.

[00:07:53] Speaker 02:
And yet the district court says they were evidence of purchasing a plan or obtaining, sorry, purchasing coverage for her staff or obtaining coverage for her staff.

[00:08:03] Speaker 02:
Which may just be semantics, but I think it's important in the context of how we analyze.

[00:08:07] Speaker 00:
So none of those facts were re-examined by the district court at the bench trial?

[00:08:11] Speaker 02:
When you say none of those facts, I'm assuming you're asking about whether or not indeed the Stiegelman or staff had access to this coverage.

[00:08:20] Speaker 00:
I'm asking about the conclusions that we reached as to whether any of those, whether all of those facts were conceded by both sides.

[00:08:31] Speaker 02:
I hope I'm answering your question.

[00:08:33] Speaker 02:
Those facts were conceded by both sides, and I don't think that was ever really disputed.

[00:08:37] Speaker 02:
There was an argument about whether the label of purchasing or obtaining coverage could be applied, but the underlying facts were never in dispute.

[00:08:45] Speaker 01:
The issue is whether Stiegelman established or maintained an ERISA plan.

[00:08:52] Speaker 01:
Correct.

[00:08:53] Speaker 01:
So you're parsing pretty finely the semantics here of purchased or acquired or

[00:08:59] Speaker 01:
whatever that means when the undisputed facts are that this insurance was available through her membership in this organization, TAA, and she agreed to pay certain portions of the premiums.

[00:09:11] Speaker 02:
Perhaps you're correct.

[00:09:11] Speaker 02:
Perhaps it does not matter.

[00:09:12] Speaker 02:
One can call it whatever they want, purchasing, obtaining.

[00:09:17] Speaker 01:
So what is it that you think the district court was supposed to do on remand?

[00:09:23] Speaker 01:
What is it that had already been decided that the district court violated in the mandate?

[00:09:29] Speaker 02:
Well, I think there are a few different things.

[00:09:31] Speaker 02:
So the district court, I'll try and answer that by jumping to some specific examples.

[00:09:38] Speaker 02:
Whereas this court held that payment of premiums is insufficient.

[00:09:45] Speaker 01:
It's evidence, but it's not in itself sufficient.

[00:09:48] Speaker 02:
Exactly.

[00:09:48] Speaker 02:
That couldn't support a fine of a risk of preemption.

[00:09:52] Speaker 02:
The district court directly disagreed with that legal conclusion.

[00:09:56] Speaker 02:
It challenged it repeatedly, including by pointing to the same two cases that this court used in support of its conclusion that would be con and cruel.

[00:10:06] Speaker 02:
The district court used that in support of its own contrary conclusion.

[00:10:10] Speaker 01:
Did the district court conclude after the bench trial

[00:10:15] Speaker 01:
that Ms.

[00:10:15] Speaker 01:
Steigelman had established and maintained an ERISA plan because she paid premiums.

[00:10:22] Speaker 02:
That was a major part of the ruling.

[00:10:24] Speaker 01:
But that wasn't all of the ruling.

[00:10:26] Speaker 02:
No, it was not, Your Honor, but the remainder of the ruling, as I intend to explain, was based on facts that were completely derivative of her payment of premiums.

[00:10:36] Speaker 02:
For example, she paid premiums for A, B, and C, but she wouldn't pay premiums for something else.

[00:10:43] Speaker 02:
She paid premiums for these people, but not those people.

[00:10:46] Speaker 02:
She paid premiums for something that she had assessed or evaluated the quality of before she paid those premiums.

[00:10:53] Speaker 02:
Her payment of premiums also included the desire to offer employee benefits, and because these were employee benefits, that was a major part of the district court's reasoning.

[00:11:06] Speaker 02:
her offering to pay employee premiums was a benefit package because she was therefore offering disability and vision and dental insurance and disability insurance.

[00:11:16] Speaker 02:
All of this is really just iterations of the point or slight extrapolations upon the point that she paid premiums.

[00:11:24] Speaker 01:
She also selected a different health insurance provider, correct?

[00:11:29] Speaker 02:
That's true, Your Honor, which happened sometime years after she had enrolled in coverage and most of her staff had enrolled in coverage.

[00:11:37] Speaker 02:
It was a completely unrelated policy with nothing to do with the TAA plan.

[00:11:43] Speaker 02:
And the district court, the main point for the district court was that this showed Steigelman had evaluated the TAA plan coverage and rejected the TAA plan medical coverage for something else.

[00:11:55] Speaker 02:
But the fact of the matter is,

[00:11:56] Speaker 02:
The TA plan didn't have any medical coverage.

[00:11:58] Speaker 02:
It had things like telehealth or accidents, critical illness, things like that, but those aren't health insurance.

[00:12:08] Speaker 02:
Also, on this point about this unrelated policy, this was something, like many of Samantha's arguments, that really wasn't raised until extremely late in the proceedings.

[00:12:18] Speaker 02:
It was hardly ever briefed.

[00:12:20] Speaker 02:
We have no information about

[00:12:22] Speaker 02:
the facts and circumstances leading up to her purchase of the insurance, the medical insurance, it just was never really part of this case.

[00:12:30] Speaker 02:
But regardless, putting that aside, and even if one were to assume that medical insurance itself was governed by ERISA, that does not dictate that this unrelated benefit plan that they all had access to is also governed by ERISA.

[00:12:45] Speaker 04:
This one day bench trial, which you've told us, I think,

[00:12:50] Speaker 04:
that your client agreed to?

[00:12:54] Speaker 02:
Yes.

[00:12:55] Speaker 04:
Again, I just- You didn't make a jury trial demand?

[00:12:59] Speaker 02:
We made a jury trial demand for the state law claims, but not anything else.

[00:13:04] Speaker 04:
So you know it's going to be a bench trial, and it lasted what, one day?

[00:13:07] Speaker 02:
The bench trial lasted one day.

[00:13:10] Speaker 02:
And your Honor, when you say you know it's going to be a bench trial, I'm not sure if you're saying that we knew there would be a bench trial on remand, because I would disagree with that.

[00:13:19] Speaker 02:
No, no, no.

[00:13:21] Speaker 04:
at the point that Judge Silver scheduled the bench trial?

[00:13:26] Speaker 04:
We knew there would be one.

[00:13:27] Speaker 04:
You knew there would be a bench trial?

[00:13:28] Speaker 04:
Yes.

[00:13:29] Speaker 04:
Your client consented to it.

[00:13:31] Speaker 04:
Were there any limitations placed by Judge Silver on what you could present?

[00:13:37] Speaker 02:
No, Your Honor.

[00:13:38] Speaker 02:
In fact, Judge Silver had explicitly said that everything under the sun was going to be considered in this bench trial.

[00:13:44] Speaker 02:
But I would point out that the district court excluded the majority of our exhibits because

[00:13:51] Speaker 02:
they proved a point that was not disputed, and that is, Steiglman had no involvement in the administration of this plan.

[00:13:58] Speaker 02:
Everything was done by this third-party entrepreneurial business, MGC.

[00:14:04] Speaker 02:
The district court had trouble identifying the relevance of these things, because it would only look at Steiglman's actions.

[00:14:11] Speaker 02:
And as it explicitly said, it was of the opinion that payment of premiums was sufficient.

[00:14:15] Speaker 02:
I have 45 seconds left, which I would love to reserve for rebuttal.

[00:14:20] Speaker 02:
Thank you, Your Honor.

[00:14:21] Speaker 01:
I'll give you a couple of minutes.

[00:14:23] Speaker 02:
I very much appreciate that.

[00:14:51] Speaker 03:
Good morning, may it please the court.

[00:14:52] Speaker 03:
I'm Steve Bresler, and along with Nicole True, we represent the Appellee Symmetra Life Insurance Company.

[00:14:58] Speaker 04:
You're soft spoken, and I'm sure everyone around you appreciates that.

[00:15:04] Speaker 04:
Bring the microphones a little closer to you and speak up like you were addressing a classroom of teenagers.

[00:15:13] Speaker 03:
Is this better?

[00:15:14] Speaker 04:
Little louder.

[00:15:15] Speaker 03:
Okay.

[00:15:18] Speaker 03:
The district court, sitting as the trier of fact, found that appellant had established and maintained an employee benefit plan when she provided health, disability, vision and dental insurance benefits to her employees on an ongoing basis for nine years.

[00:15:37] Speaker 03:
This court reviews those district court's findings for clear error and there is none.

[00:15:44] Speaker 03:
Appellant was not a passive bystander in the establishment and maintenance of an employee benefit plan, and I would point out that the statute only requires either that she establish or maintain, but not both.

[00:15:57] Speaker 03:
But she wasn't a passive bystander in the establishment or maintenance of an employee benefit plan, and there are seven indicia that appellant arranged for the program.

[00:16:08] Speaker 03:
First, appellant decided to offer benefits, a practice she did not have to do.

[00:16:14] Speaker 03:
She testified at trial that some agencies do not offer benefits.

[00:16:19] Speaker 03:
She likened herself to other employers that maintain benefit plans, and she said that she offered these benefits to attract and keep qualified personnel.

[00:16:30] Speaker 03:
Second, Appellant decided where to get those benefits.

[00:16:34] Speaker 03:
For disability dental and vision insurance, it was through her membership in TAA, but for health insurance,

[00:16:42] Speaker 03:
it was with Blue Cross Blue Shield of Arizona.

[00:16:46] Speaker 03:
As a licensed insurance agent with relationships with carriers, she could have obtained coverage outside of the TAA offerings.

[00:16:55] Speaker 03:
But she evaluated and liked the TAA offerings with the exception of the medical insurance.

[00:17:01] Speaker 03:
And as she didn't like the health insurance offerings, she went with Blue Cross and Blue Shield of Arizona.

[00:17:07] Speaker 03:
She paid

[00:17:07] Speaker 03:
100 percent of the premium for the TAA offerings and 50 percent of the premiums with Blue Cross Blue Shield.

[00:17:17] Speaker 03:
Third, appellant decided who would get these benefits.

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Appellant admitted at trial that she put limits on what she would cover.

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Though the TAA offerings were available for employees and their families,

[00:17:32] Speaker 03:
She would only pay for the employees, not their families.

[00:17:37] Speaker 03:
And once again, she likened it to what other employers typically did.

[00:17:42] Speaker 03:
And her employees testified, Michelle Morin testified, that she viewed this as a benefit of employment.

[00:17:51] Speaker 03:
Fourth, appellant decided what benefits to offer and what benefits not to offer.

[00:17:57] Speaker 03:
The district court found that she had only decided to offer health, disability, dental, and vision insurance.

[00:18:04] Speaker 03:
The record reflected during the nine years that she offered benefits to her employees, it was only for disability, dental, and vision insurance.

[00:18:13] Speaker 03:
It did not include the many other TAA offerings that were available if she said, apply for whatever you want, I'll pay for it.

[00:18:20] Speaker 03:
The other offerings included critical illness and cancer insurance, accident insurance,

[00:18:27] Speaker 03:
life insurance, long-term care insurance, and telemedicine, just to name a few.

[00:18:33] Speaker 03:
Consequently, the district court found as a matter of fact that Appellant imposed her own limits on the TAA offerings to disability, dental, and vision insurance.

[00:18:45] Speaker 03:
Fifth, Appellant acknowledged that one of the reasons she went with TAA's offerings is that they would handle much of the administration for her.

[00:18:56] Speaker 03:
In doing so, she agreed at trial that she was delegating tasks to TAA and its broker, MGC.

[00:19:04] Speaker 03:
This is also how the ERISA statute works.

[00:19:07] Speaker 03:
Under 29 USC section 1002 paragraph 5, the term employer means any person acting directly as an employer or indirectly in the interest of an employer in relation to an employee benefit plan.

[00:19:24] Speaker 03:
and includes a group or association of employers acting for an employer in such a capacity.

[00:19:31] Speaker 03:
And just as in the con case, which we've cited in the brief, where ABC's activities were attributable to Harlow Carpets, TAA's and MGC's activities can be attributed to Appellant's agency.

[00:19:47] Speaker 03:
Sixth, Appellant decided how to pay for the benefits.

[00:19:51] Speaker 03:
She could have had her agency billed directly and paid that way, but she instead opted to have it deducted from her commission checks.

[00:20:00] Speaker 03:
And finally, seventh, recognizing that she had created an employee benefit program, she listed it on her agency's tax returns under employee benefit programs.

[00:20:12] Speaker 03:
and deducted the premiums.

[00:20:14] Speaker 03:
This fact was not in the record before the Ninth Circuit panel a couple of years ago.

[00:20:19] Speaker 03:
These were at or it was not before the district court either.

[00:20:23] Speaker 03:
These tax returns were added to the record upon remand.

[00:20:29] Speaker 03:
So before the bench trial even began, the district court asked

[00:20:34] Speaker 03:
the appellant to identify opinions, preferably in the Ninth Circuit, where the employer directly paid the entirety of the insurance premiums but did not establish an ERISA plan.

[00:20:45] Speaker 03:
And the appellant could not come up with such cases, and we are not aware of any either.

[00:20:51] Speaker 03:
Let me finally just make a brief comment about the mandate that the district court supposedly didn't follow the court's mandate.

[00:21:00] Speaker 03:
When this panel previously heard, when the Ninth Circuit panel previously heard the case, it was on a very narrow issue.

[00:21:07] Speaker 03:
And that issue was, did the district court err when it granted summary judgment?

[00:21:12] Speaker 03:
In other words, should it have ruled as a matter of law, based on the record before it, that appellant created an employee welfare benefit plan?

[00:21:21] Speaker 03:
And as to that issue, the court said no and reversed and remanded.

[00:21:26] Speaker 03:
There were no limits on the court's factual inquiry.

[00:21:29] Speaker 03:
In fact, in footnote two of that opinion, the court gave the district court leeway to consider an argument that it did not believe it had been made before the court.

[00:21:40] Speaker 03:
So as we cited in our brief, the Barnes v. Chase-Home Finance Case, 934 F.

[00:21:46] Speaker 03:
3rd, 901, and I'm quoting now, a defendant need not raise every possible argument in a motion for summary judgment and may make a different argument on remand if a grant of summary judgment in its favor is reversed on appeal, end quote.

[00:22:02] Speaker 03:
Another way to view this would be suppose when we made our motion for summary judgment to the district court judge,

[00:22:09] Speaker 03:
the judge denied it and said we're going to have a trial, a fact issue.

[00:22:16] Speaker 03:
Would we be precluded from putting on evidence at trial that we had not put in our motion for summary judgment?

[00:22:22] Speaker 03:
And the answer is no, because we do not put all of our facts or all of our arguments in a motion for summary judgment.

[00:22:28] Speaker 03:
It's usually very limited.

[00:22:30] Speaker 03:
And so when this court remanded and it was then for the district court to hold a fact issue, a bench trial,

[00:22:37] Speaker 03:
and considering all the relevant facts.

[00:22:40] Speaker 03:
Unless the Court has any questions for me, I don't have any further comments.

[00:22:43] Speaker 01:
I have a question for you.

[00:22:45] Speaker 01:
So Opposing Council argued that the additional information or evidence that the District Court relied upon was really just a derivative of payment of the premiums.

[00:22:57] Speaker 01:
And you've listed seven factors that you argue support the conclusion that Ms.

[00:23:04] Speaker 01:
Stickleman

[00:23:06] Speaker 01:
established or maintained an ERISA plan.

[00:23:09] Speaker 01:
How do you respond to their argument that all of those things are really just another way of saying she paid for the premiums?

[00:23:16] Speaker 03:
Well, it was really more than paying for premiums, unless you're going to say that

[00:23:20] Speaker 03:
Everything about establishing and maintaining a plan goes to the payment of premiums.

[00:23:25] Speaker 03:
But she decided where she would get those benefits.

[00:23:28] Speaker 03:
That's not payment of premiums.

[00:23:30] Speaker 03:
She had a choice.

[00:23:31] Speaker 03:
Should I get them from TAA?

[00:23:33] Speaker 03:
Should I get them from another disability carrier?

[00:23:35] Speaker 03:
Because she wrote disability insurance and got them from at least two other carriers.

[00:23:40] Speaker 03:
She decided who would get the benefits.

[00:23:43] Speaker 03:
She could have extended them to the families, but she didn't do that.

[00:23:47] Speaker 03:
She decided what benefits to offer, and she could have offered many other benefits that she didn't offer.

[00:23:55] Speaker 03:
And she also made the decision who would administer a lot of these activities.

[00:24:02] Speaker 03:
was attracted to TAA because they said, we can do a lot of the work for you, which is very typical, by the way, in large employers.

[00:24:11] Speaker 03:
Our law firm, for example, relies upon the carriers to do a bit of the administration in terms of benefits.

[00:24:19] Speaker 03:
So most of these actually don't go to the payment of premiums.

[00:24:24] Speaker 03:
And obviously, somebody has to pay the premiums if you're going to get the coverage, and that's

[00:24:30] Speaker 03:
a core foundation, but that's true with every benefit plan.

[00:24:39] Speaker 03:
Does the panel have any more questions for me?

[00:24:57] Speaker 02:
Thank you, Honors.

[00:24:59] Speaker 02:
I'd first like to go back for a moment to a question by Judge Hawkins.

[00:25:03] Speaker 02:
On remand, the District Court gave the parties the option that it asked whether it could be resolved by motion on summary judgment, or would they like a bench trial?

[00:25:11] Speaker 02:
And repeatedly, the parties both said it could be resolved on motion practice.

[00:25:16] Speaker 02:
But ultimately, the Court decided no bench trial.

[00:25:22] Speaker 02:
It seems to me that opposing account, Symmetra's argument kind of proves the point I am trying to make.

[00:25:27] Speaker 02:
All of those arguments really are things that were argued in the first appeal.

[00:25:34] Speaker 02:
It was a complete repeat of that appeal.

[00:25:37] Speaker 02:
You know, Ms.

[00:25:38] Speaker 02:
Stegelin's tax returns and the fact that she got benefits from TAA and not somebody else, all of these things have already been argued.

[00:25:45] Speaker 02:
There was one fact that was identified by the Ninth Circuit on remand.

[00:25:49] Speaker 02:
And I'd quickly like to address the point that,

[00:25:51] Speaker 02:
In a footnote, as both parties mentioned, there was another argument that the district court could address on remand.

[00:26:00] Speaker 02:
That really is not in play anymore.

[00:26:01] Speaker 02:
That had to do with an alternative argument that not Steigelman, but TAA itself was the one who established a benefit plan.

[00:26:10] Speaker 02:
And it could do so as an employer as opposed to as an employee organization, which this court ruled it is not.

[00:26:18] Speaker 02:
All of these facts that some opposing counsel just offered to the court, that she decided to offer benefits, decided where to get the benefits, the limitations on these benefits, none of these have anything to do with whether or not there was sufficient administrative involvement in the operation of a plan.

[00:26:37] Speaker 02:
The Ninth Circuit found that Ms.

[00:26:39] Speaker 02:
Steigelman did not contract for nor did she otherwise arrange for this coverage.

[00:26:45] Speaker 02:
which would suggest it found she did not delegate this coverage.

[00:26:48] Speaker 02:
But those findings are important because practically all cases dealing with the question of whether an employer has established an ERISA plan, they fall into one of two categories.

[00:26:59] Speaker 02:
if I may finish my point, one, where the employer contracts for and arranges for this coverage directly, or two, multi-employer welfare arrangements, or METs, where an entity is established by employers specifically for the purpose of obtaining benefits, and then individual employers subscribe to that unique entity to get benefits for their employees.

[00:27:22] Speaker 02:
This case fits neither of those facts at all, and ruling otherwise would be a dramatic expansion of ERISA.

[00:27:28] Speaker 01:
Thank you, Your Honors.