[00:00:00] Speaker 05:
May it please the court.

[00:00:24] Speaker 05:
I'm Stephen Bruce and I represent the plaintiff class in this case.

[00:00:30] Speaker 05:
This action was brought by Jamal Kapapi, who was here in the District of Columbia and worked for Hilton at both the Washington Hilton and the Capitol Hilton.

[00:00:41] Speaker 05:
After 12 years of litigation, we secured a judgment, not a settlement.

[00:00:46] Speaker 05:
We secured a judgment from the court which provided for permanent nationwide injunctive relief.

[00:00:56] Speaker 05:
to redress over two decades of violations of ERISA's Benefit Accrual investing rules.

[00:01:04] Speaker 05:
Those violations have affected over 20,000 current and former Hilton employees.

[00:01:12] Speaker 05:
But Hilton has, based on the last records that we have received, that Hilton has still not paid over $8,500 of those

[00:01:23] Speaker 05:
current and former employees.

[00:01:24] Speaker 05:
Almost all of the people who haven't been paid are former employees.

[00:01:30] Speaker 05:
But the district court has closed this case out without any continuing supervision and without any accounting.

[00:01:39] Speaker 03:
There's no... Let's just be clear on what the district court has done and what it hasn't done.

[00:01:44] Speaker 03:
It didn't vacate the injunction, right?

[00:01:46] Speaker 03:
Right.

[00:01:47] Speaker 03:
The injunction will remain in place.

[00:01:49] Speaker 03:
And you can see contempt

[00:01:52] Speaker 03:
for violation of that court order, right?

[00:01:55] Speaker 03:
Even without the court exercising supervisory jurisdiction, you still have an order in effect that you can enforce through contempt proceedings.

[00:02:06] Speaker 05:
I think that we can also seek to reopen the case for continuing supervision and for an accounting.

[00:02:16] Speaker 03:
I just want to be clear on what's happening here, sir.

[00:02:20] Speaker 03:
You can, you agree with me, right, that the order is in effect and you can seek the normal, I guess, options that you have for violation of a court order.

[00:02:36] Speaker 05:
Yes, Your Honor, but I think the first step would be to seek an accounting.

[00:02:41] Speaker 03:
Well, the issue is that the district court exercised its discretion to say, you know,

[00:02:49] Speaker 03:
Here's what I'm going to exercise, continuing to exercise my jurisdiction over and what I'm not.

[00:02:56] Speaker 03:
And that's the question, of course.

[00:02:58] Speaker 03:
You still have an order that you can enforce if it's not being complied with, right?

[00:03:05] Speaker 05:
Yes, but Your Honor, I think that what the accounting allows is that the accounting allows you to say,

[00:03:17] Speaker 05:
These are the gross benefits that are unpaid.

[00:03:22] Speaker 03:
Okay, did you ask for an accounting, did you ask the district court to conduct an accounting?

[00:03:27] Speaker 05:
Yes, we asked for a compliance.

[00:03:29] Speaker 03:
Where is that in the record?

[00:03:32] Speaker 05:
We repeatedly asked for compliance reports from the district court, including what's all supporting data, and the district court had listed all the things that we had asked for.

[00:03:46] Speaker 04:
We ask for an... So you're not objecting to turning down an accounting, you're just objecting to turning down those requests?

[00:03:54] Speaker 04:
Or are you objecting to turning down an accounting, which is it?

[00:03:58] Speaker 05:
Yes, we're objecting to turning down an accounting, which is the same as those requests.

[00:04:02] Speaker 04:
I think maybe this is easily resolved.

[00:04:04] Speaker 04:
Did you ever use the word accounting in the district court?

[00:04:06] Speaker 04:
Yes.

[00:04:07] Speaker 04:
When was that?

[00:04:07] Speaker 04:
Can you tell us the page?

[00:04:09] Speaker 04:
Yes.

[00:04:22] Speaker 05:
Oh, it's docket number 242.

[00:04:30] Speaker 05:
Which page is the Joint Appendix?

[00:04:33] Speaker 05:
It's not in the Joint Appendix.

[00:04:34] Speaker 05:
It's docket number 242.

[00:04:36] Speaker 04:
I guess I'm confused.

[00:04:38] Speaker 04:
If your complaint in this Court is that the District Court denied you an accounting, you would think the first thing you would do is put that material in the Joint Appendix.

[00:04:50] Speaker 04:
Why isn't it in the Joint Appendix?

[00:04:52] Speaker 05:
Because the term that we used was compliance report.

[00:04:55] Speaker 05:
So you didn't use the word accounting.

[00:04:57] Speaker 05:
No, we did use the word accounting in docket number 242, but generally we used compliance report with all the supporting data.

[00:05:06] Speaker 05:
We asked for verified reports from Hilton with all the supporting data.

[00:05:12] Speaker 04:
What's docket number 242?

[00:05:15] Speaker 05:
It's a brief on unresolved remedial issues.

[00:05:20] Speaker 05:
And it's at pages 22 through 23.

[00:05:23] Speaker 05:
What's the date?

[00:05:25] Speaker 05:
It's April 11, 2011.

[00:05:31] Speaker 05:
We cited the Cobell case for that.

[00:05:33] Speaker 05:
But you didn't cite it for the purposes of accounting, did you?

[00:05:36] Speaker 05:
Yes, we did cite it for the purpose of accounting.

[00:05:38] Speaker 04:
Can you read this sentence and what you say about the Cobell case?

[00:05:43] Speaker 05:
We said that the Cabell case provided for an accountant.

[00:05:46] Speaker 04:
Could you read the sentence of docket number 242, which I obviously don't have, because you didn't give us the joint appendix.

[00:05:53] Speaker 04:
Can you read it to me now?

[00:05:55] Speaker 05:
I don't have it in front of me, but I've read it recently.

[00:05:58] Speaker 05:
And it refers to an accounting that Cabell provides for an accounting.

[00:06:03] Speaker 05:
But the term that we used, I think is the more modern term, is to ask for a compliance report.

[00:06:09] Speaker 05:
That's what the restatement

[00:06:12] Speaker 05:
third of trust says that the terms are interchangeable.

[00:06:18] Speaker 01:
So you're basically asking, you were asking in the district court and you're asking in a slightly different packaging before us for a factual basis of Hilton's claims that it has complied that is sufficiently concrete that you can

[00:06:38] Speaker 01:
Check it.

[00:06:39] Speaker 01:
So you want something that allows your role in the adversary process to have traction, some information.

[00:06:47] Speaker 01:
Tell us who, where, what, when, and how much so we can do something other than just take on faith what Mr. Hernandez has said in his declaration.

[00:06:57] Speaker 01:
That's what you've been asking for all along, and that's what you're asking for now.

[00:07:01] Speaker 05:
Absolutely, Your Honor.

[00:07:03] Speaker 05:
An accounting, I think the thing here is that these are, the defendants are fiduciaries, and an accounting is the classic request for fiduciaries, and the modern terminology is compliance report or certification, but it's the same thing.

[00:07:23] Speaker 01:
So you don't care what we call it, you just want to get some kind of more concrete compliance reporting.

[00:07:29] Speaker 05:
We want to get information where we can help with the process to make sure that additional people are paid and we want to get the information that shows who has been paid so that we can see the progress towards compliance with this permanent injunction.

[00:07:48] Speaker 04:
So the district court's opinion of February 2015 says

[00:07:53] Speaker 04:
that defendants provided directly to Plaintiff's Council a summary categorization spreadsheet detailing participant by participant which class members have been paid increased benefits or sent notices of increased benefits, including how much they were paid to each participant.

[00:08:09] Speaker 04:
Is that what you were asking for?

[00:08:10] Speaker 05:
Right.

[00:08:11] Speaker 05:
We were asking to continue to receive that information.

[00:08:13] Speaker 04:
But you did get that.

[00:08:14] Speaker 05:
It's not as if you... But we didn't get it.

[00:08:15] Speaker 05:
But you did get it.

[00:08:16] Speaker 05:
It stopped.

[00:08:18] Speaker 04:
You're asking for a continuing state.

[00:08:21] Speaker 04:
It's not that you never got it.

[00:08:24] Speaker 04:
Right.

[00:08:25] Speaker 05:
The counting that we got brought us up to early 2015 and that's what shows that there are still 8,500 people who are unpaid.

[00:08:36] Speaker 05:
So we have a permanent injunction requiring those benefits to be paid.

[00:08:41] Speaker 05:
It didn't have any equivocation.

[00:08:44] Speaker 05:
It said that all benefits were to be increased within 90 days of the attorney's fee decision, which brought us to sometime in early 2014.

[00:09:00] Speaker 05:
That's the permanent injunction.

[00:09:03] Speaker 05:
That implementation of that is subject to fiduciary duties because Hilton is a fiduciary.

[00:09:09] Speaker 03:
It's also subject to fiduciary duties because someone who's been enjoined... Explain to me how, even if we assume for the sake of argument that you requested an accounting, explain to me what was the abuse of discretion.

[00:09:26] Speaker 05:
The abuse of discretion was that the reason why the judge turned down continued reporting was because the judge said that the amount of paid and unpaid benefits wasn't relevant.

[00:09:42] Speaker 05:
That the judge was seeing substantial efforts by

[00:09:47] Speaker 05:
Hilton within a limited time period and that somehow the amount of benefits paid and unpaid wasn't important.

[00:09:57] Speaker 05:
And that's the central, it's the central part of the injunction and it's the central part of an accounting.

[00:10:05] Speaker 05:
So that was the abuse.

[00:10:09] Speaker 01:
So it seems like her approach was to require certain processes, do these number of searches for this

[00:10:17] Speaker 01:
remaining time and then we'll deem that to be sufficient.

[00:10:22] Speaker 01:
And your perspective on that is that that's not adequate.

[00:10:26] Speaker 05:
Why?

[00:10:32] Speaker 05:
things that the court ordered did not really change the overall results very significantly.

[00:10:39] Speaker 05:
We, you know, that all, practically all the things or all the things that the district court ordered were good instructions.

[00:10:49] Speaker 05:
But it didn't change the bottom line, and the bottom line is the injunction.

[00:10:57] Speaker 01:
The bottom line is... But I take it that it's not your position that the injunction could be or has to be 100%.

[00:11:05] Speaker 01:
There are going to be people who can't be found with all reasonable diligence.

[00:11:12] Speaker 01:
Some number.

[00:11:13] Speaker 05:
I think that has to be documented.

[00:11:15] Speaker 03:
One of the things that... But what case... I'm sorry, answer Judge Perkins' question.

[00:11:23] Speaker 01:
So you're saying that that hasn't been documented even though the district court seemed to think it was.

[00:11:30] Speaker 01:
She thought telling them do searches every other month with this court-approved search firm and then do it in six months and then do the last one in a year, your view was that you need some window into what was done and what wasn't done in order to be able to

[00:11:47] Speaker 01:
determine whether you think that was everything that needed to be done.

[00:11:50] Speaker 01:
And you didn't have that window.

[00:11:51] Speaker 01:
You were just told by their people.

[00:11:54] Speaker 05:
Right.

[00:11:54] Speaker 05:
The thing that is developing recently is the thing of missing participants is what the term that's being used is a nationwide problem.

[00:12:07] Speaker 05:
And it's a super problem in this case.

[00:12:11] Speaker 05:
But there's been a GAO report in early January

[00:12:17] Speaker 05:
on this of GAO report 1819, there was a settlement that was announced yesterday of MetLife where they paid $189 million because of missing participants.

[00:12:32] Speaker 01:
So can you tell us, I know your position is that your information is somewhat limited, but you mentioned this number 8,500.

[00:12:42] Speaker 01:
Can you characterize those and tell us in which of the buckets of, as Hernandez and the district court described, those fall?

[00:12:51] Speaker 01:
Are these part of the 5,600 whose claims have not yet become payable, or are they others?

[00:13:00] Speaker 01:
Are they overlapping with that?

[00:13:01] Speaker 01:
Tell us what you know and where in the record you know it about these shortfalls.

[00:13:07] Speaker 05:
We had about

[00:13:09] Speaker 05:
2,000 people who were unlocated.

[00:13:13] Speaker 05:
Over the course of 2016 and 2017, we retained class action administrators and did mailings to confirm the addresses of close to 1,000 of those people.

[00:13:28] Speaker 05:
We gave those addresses to Hilton.

[00:13:32] Speaker 05:
They only announced that they were about to conduct a mailing after we notified the court that they were not cooperating.

[00:13:42] Speaker 05:
So that's a tranche of 2,000 of whom we supplied confirmed addresses, not just addresses that we had found.

[00:13:52] Speaker 05:
We got pieces of paper back from each of those people confirming that this was their address and that information was not used.

[00:14:01] Speaker 01:
The people that... It has now been used except for with respect to a certain subset.

[00:14:07] Speaker 05:
The last we heard was that they were in the process of doing a mailing to those people.

[00:14:13] Speaker 05:
We never got any results from that.

[00:14:15] Speaker 05:
And when you look at the 10K report that we cited in the briefing, there's no noticeable uptick.

[00:14:24] Speaker 05:
In fact, there was a downtick in 2017 when we were supplying that information.

[00:14:31] Speaker 05:
there are of the people with the deferred benefits close to four thousand of those people are now eligible for benefits but we have no records of those people being paid so if they could not be paid immediately the court needed to retain jurisdiction to supervise their being paid when they did become eligible it doesn't mean that the court has to

[00:14:57] Speaker 05:
you know, to devote 10 or 15 hours a week to this.

[00:15:00] Speaker 05:
It just means that the court has to be requiring reports.

[00:15:05] Speaker 03:
What's your best case for us finding an abuse of discretion of the court's broad kind of equity remedial authority here?

[00:15:20] Speaker 05:
Is that the court said that it was giving up jurisdiction

[00:15:27] Speaker 05:
and that we could only get it back under the standards of Rule 60B, and that is not the case.

[00:15:35] Speaker 05:
The court has the inherent authority to exercise supervisory jurisdiction over an injunction for the life of the injunction.

[00:15:46] Speaker 05:
And the court cannot limit itself and then make the case subject to a 60B standard for relief from a judgment.

[00:15:55] Speaker 05:
That it has to remain subject to the court's discretion in that discretion.

[00:16:00] Speaker 03:
What case from our court or the Supreme Court or any court?

[00:16:05] Speaker 03:
stands for the proposition you just made.

[00:16:09] Speaker 05:
We cited Brown versus Plata.

[00:16:12] Speaker 05:
We cited Cobell.

[00:16:14] Speaker 04:
I mean, Cobell has I think what Judge Wilkins is asking for is a case in which the district court gave up jurisdiction and reordered them to reinstate jurisdiction.

[00:16:30] Speaker 04:
What case did that happen?

[00:16:32] Speaker 04:
In what case did that happen?

[00:16:34] Speaker 05:
I'm not sure that I have a case.

[00:16:36] Speaker 05:
Most of the cases the court exercises the continuing jurisdiction.

[00:16:41] Speaker 04:
Most of the cases are ones where a party wants them to give up jurisdiction and the court refuses and the Supreme Court or our court discusses whether that's possible.

[00:16:51] Speaker 04:
Can you think of a case in which a court has done what this district court did and where the district court was reversed?

[00:17:00] Speaker 05:
Well, the case that we cited that Judge Huvelle dealt with, that they were trying to get the 60B standard applied, and Judge Huvelle rejected that on the basis that 60B does not apply to retaining, to continuing jurisdiction or to... I'm still asking, when I'm asking, just to make sure I'm not being clear, a case in which an appellate court has reversed a district court

[00:17:30] Speaker 04:
for giving up jurisdiction.

[00:17:35] Speaker 05:
I'm not sure that I have one, Your Honor, but I don't think that means it doesn't exist, because I think we were looking for the principal, and the principal is the district.

[00:17:44] Speaker 04:
I understand the principal, but I'm just asking if there was a case.

[00:17:47] Speaker 04:
I guess the answer is so far as we don't know.

[00:17:49] Speaker 04:
Now, what is the difference between district court having an injunction

[00:17:58] Speaker 04:
And if it's violated, you coming back in and asking for contempt, which I think everybody acknowledges is still available here, versus continuing holding on to jurisdiction.

[00:18:13] Speaker 05:
In my mind, well, it has to do with proceeding, of trying to make this work, which is what we've tried to do all along, that it's not trying to get someone held in contempt, that we're trying to get this done, and we're trying to use accounting for that, which is what happened in Cobell.

[00:18:37] Speaker 01:
I mean, I guess one issue is, one way to read what the district court did was to say not only I'm not retaining active supervisory jurisdiction, but I think that Hilton has done all it needs to do.

[00:18:53] Speaker 01:
It's done with, other than paying the people that it's identified and for whom there are benefit shortfalls, which it has to do with any retiree who's entitled to bench and benefits.

[00:19:06] Speaker 01:
But one way of reading her order is that they've discharged their responsibility.

[00:19:12] Speaker 01:
And so to what extent is your appeal, has your appeal challenged the order on that ground, or do you disagree with me?

[00:19:22] Speaker 01:
that that's how Hilton may be characterizing the order.

[00:19:25] Speaker 01:
I mean, we can ask them.

[00:19:26] Speaker 05:
I think that's how they're characterizing the order.

[00:19:28] Speaker 05:
I think that what happened was that the district court had a motion to release the supersedious bond before the court, and Hilton

[00:19:39] Speaker 05:
produced evidence that in the court's mind showed that Hilton was making substantial efforts up until that point and the court decided that that was sufficient to release the supersedious bond and use the word compliance when in context what compliance is referring to is substantial efforts for a limited period of time not

[00:20:05] Speaker 05:
that the judgment has actually been fulfilled and the court recognizes that it hasn't been fulfilled because it keeps making very limited exceptions and keeps reiterating that Hilton has the continuing obligations under the injunction.

[00:20:24] Speaker 05:
So the injunction clearly hasn't been complied with and this district court would never make that mistake.

[00:20:32] Speaker 01:
Where do you think

[00:20:34] Speaker 01:
she's clearly expressed that they have ongoing obligations to search for and identify beneficiaries beyond the last specifically ordered search, which was at the end of 2017.

[00:20:48] Speaker 05:
Yeah, the language in the 2017 order was also in the

[00:20:57] Speaker 05:
It was also in the, I believe in the December 2015 order saying that Hilton had continuing obligations to people who have been identified and who will be identified.

[00:21:13] Speaker 05:
And so that indicates that the permanent injunction is ongoing.

[00:21:22] Speaker 05:
The district court doesn't believe that the permanent injunction has been discharged.

[00:21:27] Speaker 01:
But when she says, just to push back on that a little bit, and I'm looking at JA 132 in the December 2015 opinion order,

[00:21:45] Speaker 01:
that the termination of the search requirement does not modify defendant's obligations to class members or beneficiaries who have already been identified, so that would just be their obligations as ERISA plan manager, or who will be identified by other means in the future.

[00:22:06] Speaker 01:
What's your understanding of what other means specifies?

[00:22:12] Speaker 01:
Other means other than they're doing searches, no?

[00:22:15] Speaker 01:
Like, you bring them.

[00:22:16] Speaker 05:
There's processing, that people respond and then they get processed.

[00:22:22] Speaker 05:
And particularly if the class member's deceased, that people have to be confirmed.

[00:22:29] Speaker 01:
In other words, if there's out there a notice that then comes back in some form, they would have an obligation to deal with that.

[00:22:36] Speaker 01:
Right.

[00:22:36] Speaker 05:
So my understanding of this is it isn't referring to just you have the obligation in general.

[00:22:42] Speaker 05:
This is referring to that

[00:22:45] Speaker 05:
that Hilton has a continuing obligation to comply with the permanent injunction.

[00:22:51] Speaker 05:
That's what we asked for to get this language.

[00:22:55] Speaker 03:
So we kept saying that at the very least... But sir, any permanent injunction can apply into the future.

[00:23:06] Speaker 03:
It can apply

[00:23:07] Speaker 03:
for decades into the future.

[00:23:10] Speaker 03:
That doesn't mean that the court has to, if it has a term like that, exercise supervisory jurisdiction and continue to hold status hearings and compliance reports, et cetera, in the case forever.

[00:23:26] Speaker 03:
Those are two different things.

[00:23:28] Speaker 05:
I think in those kind of cases, when something comes up, you reopen.

[00:23:33] Speaker 05:
So there was an example of this is the air traffic controllers had sick-outs back in the 1970s and there was a permanent injunction issued against those because it was an illegal strike.

[00:23:51] Speaker 05:
And so when they started doing sick-outs again in the 1980s,

[00:23:56] Speaker 05:
the FAA or whoever goes back into that same district court and says you've got an injunction against their doing this and the district court reopens the matter to take to handle that.

[00:24:10] Speaker 03:
That's my point is that the district court has discretion as to whether it wants to keep the case open or close it and have the party if they believe that there's non-compliance

[00:24:22] Speaker 03:
seek to either reopen the case or have the non-compliant party held in contempt, right?

[00:24:27] Speaker 05:
But in this case, the process of complying was ongoing.

[00:24:34] Speaker 03:
So that, like with the sick-outs, when that... But that's a determination that the district court inherently has

[00:24:42] Speaker 03:
the discretion to make.

[00:24:43] Speaker 05:
But this district court made it on the basis of Rule 60B.

[00:24:47] Speaker 05:
It specifically said that we did not meet that high bar.

[00:24:51] Speaker 05:
The court did not consider the factors in Brown versus Plata and Cobell that are cited about continuing jurisdiction to achieve the purposes of the injunction.

[00:25:04] Speaker 01:
I mean, I think one of your responses has to be, contempt is not going to be enough because we need to be able to have access to the information to assess how far they've gone, how fully Hilton has in fact fulfilled its responsibilities under the injunction.

[00:25:28] Speaker 01:
If you had access on an ongoing basis to

[00:25:33] Speaker 01:
the kind of compliance information that you've been seeking.

[00:25:36] Speaker 01:
We found this person.

[00:25:38] Speaker 01:
We've done these three things to look for this other person.

[00:25:41] Speaker 01:
We've contacted this beneficiary at this address, you know, six months ago with no response.

[00:25:47] Speaker 01:
then you would have a better sense of why the shortfalls, what has been done, whether that looks like a reasonable effort, and with others, whether nothing has been done and whether you could then go into court on the ones where nothing has been done and say to the judge, look, this kind of looks like contempt or not.

[00:26:06] Speaker 01:
So it feels to you, I think, like a blunt instrument to say you have a contempt opportunity when much less intrusive

[00:26:17] Speaker 01:
efforts to prod Hilton are what you're looking for.

[00:26:21] Speaker 01:
Is that right?

[00:26:22] Speaker 05:
Yes, I think in the legal scholarship and all, the phrase that was used was that the accounting allows you to find out what is known to the fiduciary but unknown to you as the beneficiary.

[00:26:36] Speaker 05:
And so we're representing the beneficiaries who do not have all this information.

[00:26:41] Speaker 05:
Hilton has the information.

[00:26:43] Speaker 05:
To the extent that we have information, we don't see any payments coming out.

[00:26:52] Speaker 05:
And we're providing close to 1,000 addresses with people due close to $15 million in benefits.

[00:26:59] Speaker 05:
We don't see anything coming out.

[00:27:01] Speaker 05:
And we don't get any cooperation from Hilton.

[00:27:05] Speaker 05:
Once that court supervision ended, once the court announced that it was giving up supervisory jurisdiction three weeks after it issued that order, the cooperation from Hilton evaporated.

[00:27:20] Speaker 05:
that it only comes about because the court is present.

[00:27:28] Speaker 04:
And you made that argument to the district court.

[00:27:30] Speaker 04:
Yes, and we would like... And the district court found against you.

[00:27:35] Speaker 05:
The district court found against us for the wrong reasons under Rule 60B and because the district court said that the amount of unpaid benefits is not important.

[00:27:47] Speaker 05:
that we're just looking for sufficient efforts.

[00:27:50] Speaker 05:
And Cobell directly rejects that.

[00:27:54] Speaker 05:
Cobell has, there were diligent efforts by the Department of Interior

[00:28:00] Speaker 05:
to do an accounting and the court said that's not enough.

[00:28:04] Speaker 05:
I mean we're glad that you're making diligent efforts but you've got to do the accounting.

[00:28:09] Speaker 05:
That was a statutory accounting.

[00:28:12] Speaker 05:
The court's decisions were based on statutory and the equitable accounting.

[00:28:19] Speaker 05:
It was based on Bogart and it was based on court of claims cases about equitable accounting.

[00:28:24] Speaker 05:
Is that our court or the district court?

[00:28:26] Speaker 05:
Our court.

[00:28:28] Speaker 05:
Yes, in the 2009 and the 2001 decisions.

[00:28:33] Speaker 04:
And did it require the district court to do this, or just affirm that the district court could do this?

[00:28:39] Speaker 05:
I think it used the principles of equitable accounting to, that in some ways that provided more than the statutory duties, in some ways it provided less, but it definitely was an independent ground.

[00:28:57] Speaker 05:
I mean, the surprising thing in doing this was, I mean, that the court cited Bogart and a court of claims case and that there were all these, there were these district court and circuit court decisions about accounting that it somehow, I think that, you know, when we merged law and equity that some of that history got lost.

[00:29:22] Speaker 01:
Mr. Bruce, in 2010, the district court said that it was not inclined at this point to appoint a class action administrator, which I gather was something that you had requested.

[00:29:34] Speaker 01:
Yes.

[00:29:35] Speaker 01:
Although the court said it shared your concern that

[00:29:40] Speaker 01:
The court should not rely unilaterally on Hilton to implement the remedies, given its history of violations, but the court seemed to think that the parties would be able to agree on the calculations and that that could be incorporated into a final judgment.

[00:29:56] Speaker 01:
turned out to be more complicated than that.

[00:29:58] Speaker 01:
My question is, did you ever renew the request for a class action administrator, or is the request now for compliance reporting kind of the do-it-yourself substitute for that?

[00:30:12] Speaker 05:
I think it was, I don't think that we kept asking for the, I think we did ask once more but then we went along with what we could get.

[00:30:22] Speaker 05:
And so we tried to work with the information and to help Hilton with getting people paid.

[00:30:31] Speaker 01:
So is the general point at a kind of more

[00:30:35] Speaker 01:
higher level of generality that you're asking for some adversary process to be available over the fact questions about whether and to what extent Hilton has complied.

[00:30:49] Speaker 01:
That there needs to be some way for you to participate meaningfully in testing what Hilton has proffered in terms of compliance.

[00:30:57] Speaker 01:
There just needs to be some

[00:31:00] Speaker 01:
can't be a one-sided process.

[00:31:04] Speaker 01:
It has to be that plaintiff's counsel can be, class counsel can be engaged.

[00:31:08] Speaker 05:
Well, I think it is stated in Cavell that an equitable accounting doesn't have

[00:31:17] Speaker 05:
It isn't necessarily like calling in Arthur Anderson and following gap principles.

[00:31:24] Speaker 05:
It's different.

[00:31:25] Speaker 05:
And in Cobell, there were adjustments made because if they had followed gap principles, it could never have been done.

[00:31:32] Speaker 05:
So I think that there is discretion for the district court

[00:31:38] Speaker 05:
But there's not discretion to just ignore the accounting.

[00:31:42] Speaker 01:
And I think what the accounting gives you is... And when you say accounting, I'm just trying to, you know, because there's an issue about whether that's really what you were asking for.

[00:31:50] Speaker 01:
And as I read your brief, and maybe you're saying something, maybe you're correcting me today, but as I read your brief, you were asking for, under one name or another, access to information that was sufficiently concrete.

[00:32:04] Speaker 01:
about efforts to find people and specific decisions to calculate and be prepared to pay their benefits that would allow plaintiff's class counsel to either find that to be satisfactory or not and push on behalf of the class for greater efforts.

[00:32:26] Speaker 01:
And I gather that you had some concern about the adequacy of Hilton's efforts when you went and were able to verify

[00:32:35] Speaker 01:
upwards of 900 addresses and actually get contact with people who they said were unfindable.

[00:32:40] Speaker 05:
Yes, yes.

[00:32:41] Speaker 05:
I mean, we've done these cases.

[00:32:44] Speaker 05:
We did a case that the very end of it was before Judge Boesberg where

[00:32:52] Speaker 05:
We got a $1 billion case with the PBGC where we got 96% of the retirees paid.

[00:33:01] Speaker 05:
And we didn't even have social security numbers for a lot of them, but we tracked them down.

[00:33:06] Speaker 05:
So with cooperation,

[00:33:10] Speaker 05:
This case, there might be a handful of people who couldn't be paid, but it's very small.

[00:33:17] Speaker 05:
What's happening here is somebody

[00:33:23] Speaker 05:
We locate people.

[00:33:25] Speaker 05:
They don't get contacted.

[00:33:26] Speaker 05:
They don't get processed.

[00:33:29] Speaker 05:
People respond.

[00:33:31] Speaker 05:
There's some, you know, maybe they didn't get a notary to witness something.

[00:33:36] Speaker 05:
It gets dropped.

[00:33:38] Speaker 05:
That's what happens.

[00:33:39] Speaker 05:
It isn't just a matter of locating people.

[00:33:42] Speaker 05:
It's when people respond that they don't get processed through.

[00:33:45] Speaker 05:
And if you have a real fiduciary duty,

[00:33:50] Speaker 05:
that that's not what people wouldn't put up with that.

[00:33:53] Speaker 05:
A real fiduciary would say, I can pay these people and I've got a helper here.

[00:34:01] Speaker 05:
I've got this class council who are willing to help find people.

[00:34:05] Speaker 05:
That's a bonus.

[00:34:07] Speaker 05:
Instead, here we have people who are

[00:34:09] Speaker 05:
uncooperative, they do not respond, and they follow the history of 20 years of violations.

[00:34:18] Speaker 03:
So sir, if those 900-and-some, close to 1,000 people you located never were contacted by Hilton, then that would be a violation of the injunction, right?

[00:34:34] Speaker 03:
You have the information for those people.

[00:34:37] Speaker 03:
You could contact those people and find out what Hilton has done with respect to contacting them and what they have.

[00:34:45] Speaker 03:
And if Hilton hasn't complied with their obligations for those people who you specifically told Hilton about, you could go back to the court with a motion for contempt and then seek an accounting and seek anything else you want, right?

[00:35:01] Speaker 05:
I guess, Your Honor, the way I see it, and maybe I'm

[00:35:05] Speaker 05:
Maybe I'm wrong on this, but the way I see it is that an accounting is easier to do because what you show is the gross of the burden to the fiduciary to show why those gross amounts haven't been paid.

[00:35:22] Speaker 03:
I understand that, but can you answer my question, which is that if for these people who you have identified to Hilton

[00:35:32] Speaker 03:
If you go back to those people now and find out that Hilton hasn't properly contacted them, you can seek contempt and seek as a remedy an accounting or anything else.

[00:35:49] Speaker 03:
Isn't that available to you right now?

[00:35:53] Speaker 05:
I think we would get tremendous pushback on the examples that we showed that they would try to show that there was some reason and that we couldn't prove that they were in contempt.

[00:36:08] Speaker 05:
Whereas I think we can easily show that there should be an accounting and that accounting gets us more information where we can

[00:36:21] Speaker 05:
we can move for contempt if that's necessary.

[00:36:24] Speaker 01:
Now, Hilton argues, Mr. Bruce, that you need to make a showing of noncompliance in order to be entitled to whatever you call it, post-judgment discovery and accounting, compliance reporting, the kind of information that you're asking for that would give you traction to participate

[00:36:43] Speaker 01:
Hilton says, yeah, there's some law saying you can get that.

[00:36:47] Speaker 01:
But in order to get that, you need to make a showing of noncompliance.

[00:36:52] Speaker 01:
And in their view, the district court has said, no, full compliance.

[00:36:56] Speaker 01:
You're fine.

[00:36:57] Speaker 01:
So if we were to agree with Hilton that a showing of noncompliance is a predicate to your getting more information via discovery, compliance reporting,

[00:37:10] Speaker 01:
and accounting, whatever title you want to give that, what is your case that Hilton is in non-compliance?

[00:37:20] Speaker 01:
Just each element of it, what are you relying on to be so confident that they're in non-compliance?

[00:37:29] Speaker 05:
Well, going back, my understanding from the Kayford's case is that what you show

[00:37:38] Speaker 05:
When somebody has fiduciary duties, you show that the money hasn't been paid.

[00:37:45] Speaker 01:
The district court said the money was an estimate.

[00:37:48] Speaker 01:
Everybody understood it was an estimate.

[00:37:51] Speaker 01:
And maybe it's an overestimate.

[00:37:53] Speaker 01:
Maybe more of these people left the country, died, don't care.

[00:37:58] Speaker 05:
I think, again, Your Honor, she was referring to the

[00:38:02] Speaker 05:
to the motion to release the supersedious bond and that there were estimates of how much could be paid in the first year.

[00:38:11] Speaker 05:
And so she was dismissing those as just estimates.

[00:38:15] Speaker 05:
She wasn't dismissing the $146 million or the individual.

[00:38:21] Speaker 05:
There's a spreadsheet

[00:38:23] Speaker 05:
that Hilton itself filed that has all of the amounts for these people.

[00:38:29] Speaker 05:
It's all been calculated according to formulas that were specified by the district court.

[00:38:36] Speaker 05:
So there's no question that the benefits haven't been paid.

[00:38:41] Speaker 05:
There's no recalculation of those benefits.

[00:38:46] Speaker 01:
Right, so the shortfall, as I understand it, is in finding the recipients.

[00:38:53] Speaker 01:
Is that right?

[00:38:53] Speaker 01:
Not in calculating the amount, but in finding the recipients and maybe with the vesting a little bit in calculating the amount.

[00:38:59] Speaker 05:
No, it's finding and processing.

[00:39:01] Speaker 01:
Right.

[00:39:02] Speaker 01:
Finding and processing.

[00:39:03] Speaker 05:
Finding and processing.

[00:39:04] Speaker 01:
And so I'm asking you, to the extent that finding and processing has not been done,

[00:39:10] Speaker 01:
What is your, you mentioned the 8,000, you mentioned the 1,000.

[00:39:18] Speaker 01:
Who are the 8,000 that you say, when you opened your argument you said 8,500 have not been paid?

[00:39:28] Speaker 05:
It's based on the records that we got from Hilton before they stopped providing any records.

[00:39:35] Speaker 05:
We have the list of 20,600 people and we have a list of all the people who have been paid.

[00:39:42] Speaker 01:
And I think that Mr. Hernandez says 5,600 had not been paid because they weren't yet in pay status.

[00:39:50] Speaker 01:
1874 hadn't responded, so they didn't have full information.

[00:39:56] Speaker 01:
Some had no identified address.

[00:39:59] Speaker 01:
Another 1400 hadn't responded, and some were having their status as beneficiary confirmed.

[00:40:05] Speaker 01:
So they've given some description of what is going on there.

[00:40:10] Speaker 05:
The biggest group, the 5600,

[00:40:14] Speaker 05:
actually consisted of over 4,000 people who had unconfirmed addresses.

[00:40:19] Speaker 05:
So they don't have any idea whether or not those notices were received by people.

[00:40:26] Speaker 05:
And then the second big fault in that is that of those people who were entitled to deferred benefits, we not only don't know whether they've been contacted, Hilton also

[00:40:39] Speaker 05:
broke the rules on notifying the IRS and the Social Security Administration about those benefits.

[00:40:47] Speaker 05:
And of those people that close to 4,000 of them are now eligible for benefits, but there's no indication that they've been paid.

[00:40:57] Speaker 05:
So a lot of those people were very close to eligibility, and they're saying, oh, well, they're not eligible now.

[00:41:05] Speaker 05:
Well, they have to be eligible sometime.

[00:41:07] Speaker 05:
And you've got an injunction that says that you have to increase those benefits.

[00:41:12] Speaker 01:
So for all you know, they have been paid.

[00:41:13] Speaker 01:
You just don't know.

[00:41:15] Speaker 05:
We have a pretty good idea from the 10Ks that there's been no uptick in payments after the first two years.

[00:41:22] Speaker 05:
All right, let's hear from the other side.

[00:41:24] Speaker 05:
We're 30 minutes open now.

[00:41:25] Speaker ?:
Thank you.

[00:41:45] Speaker 00:
Good morning, Your Honors, and may it please the Court, Jonathan Youngwood, for the defendants and the appellee.

[00:41:52] Speaker 00:
Let me begin, Judge Garland, with the question you asked.

[00:41:57] Speaker 00:
my opponent about whether or not we've ever seen this equitable accounting before.

[00:42:03] Speaker 00:
And he gave you one reference, which I don't have with me, but he referred to, I guess, docket number 242.

[00:42:08] Speaker 00:
And he said the date of it was April 11, 2011.

[00:42:12] Speaker 00:
That was before the court ruled on the remedy stage, before this case previously came before this bench.

[00:42:23] Speaker 00:
And if that's what he wanted then and he wasn't awarded it,

[00:42:27] Speaker 00:
just like the plan administrator, which was part of the subject of the two-day hearing in July of 2011 before the district court, which he asked for and was denied.

[00:42:38] Speaker 00:
If those are things he wanted and he thought was important, then he should have appealed those things to this court back in 2012, and he would have had a ruling one way or the other, but he did not.

[00:42:52] Speaker 00:
And that is the problem in a nutshell of everything we're discussing.

[00:42:57] Speaker 00:
This is a, come this June, a 21-year-old litigation.

[00:43:04] Speaker 00:
The prior decision from this court noted that at that point 15 years had passed and 12 district court decisions had issued.

[00:43:14] Speaker 00:
Today we are seven years later with five more district court decisions.

[00:43:18] Speaker 00:
This district court judge has weighted deep into the weeds of this case.

[00:43:27] Speaker 00:
There are, in the record before you, I count 14 declarations from Hilton, numerous declarations from the plaintiffs that were presented to the district court that led to the four decisions that you're looking at today.

[00:43:43] Speaker 00:
Within them, but not within your sets, are lengthy spreadsheets

[00:43:48] Speaker 00:
giving answers to many of the questions that plaintiff today says they don't know the answer to.

[00:43:54] Speaker 00:
They were presented to the district court.

[00:43:57] Speaker 01:
What was the most recent of those spreadsheets?

[00:44:00] Speaker 00:
The most recent would have been presented in connection with the briefing in 2017.

[00:44:08] Speaker 00:
where a plaintiff asked for more discovery.

[00:44:12] Speaker 00:
Discovery in a case where discovery closed in 2003.

[00:44:16] Speaker 00:
So 14 years after discovery closed, they were asking for discovery.

[00:44:20] Speaker 01:
They were asking for discovery relating to the implementation of a permanent injunction.

[00:44:27] Speaker 00:
Asking for discovery relating, yes, correct, your honor.

[00:44:32] Speaker 00:
But to be specific, and again, I raise it because it was the subject of questions a moment ago, the declaration of Aaron Hewing submitted in June of 2017 on the joint appendix, I'm looking at page 1480, refers to an exhibit A that goes through

[00:44:56] Speaker 00:
many of the people that plaintiff's counsel has raised before you as being people that they found.

[00:45:04] Speaker 00:
It turned out that more than half those people had, by the time this was submitted, been located by Hilton.

[00:45:11] Speaker 00:
It is true that plaintiff's counsel was not informed day by day of all the activities of the plan.

[00:45:18] Speaker 01:
Not informed according to plaintiff's counsel and according to the record, not informed at all.

[00:45:24] Speaker 01:
That's not true, Your Honor.

[00:45:26] Speaker 01:
the judge got involved.

[00:45:29] Speaker 00:
Your Honor, we've been having back and forth with Mr. Bruce, some in the record, some not.

[00:45:34] Speaker 00:
My firm got involved in this case in 2009 after the summary judgment decision, monthly, weekly, daily.

[00:45:41] Speaker 00:
It is respectfully not a correct statement, but I don't know how to deal with it in this form.

[00:45:49] Speaker 00:
And when he went to the court, there were responses presented long after the court's jurisdiction had expired.

[00:45:57] Speaker 01:
So in terms of the jurisdiction of the court, is it your position that Hilton's affirmative obligations in terms of searching for people are over?

[00:46:08] Speaker 00:
Hilton will always have an obligation under the law to do its best to find beneficiaries.

[00:46:14] Speaker 00:
It has a continuing obligation to try and find anyone who came into benefits by virtue of this court's and the district court's prior orders, and it's continuing to do that.

[00:46:25] Speaker 01:
What it's not- But not pursuant to the permanent injunction in this case.

[00:46:28] Speaker 01:
I mean, I'm just wanting your view on what Judge Wilkins was asking, why, asking class counsel, why isn't

[00:46:36] Speaker 01:
just going to the court and asking for contempt and adequate protection for the class in terms of the fulfillment of their own injunction?

[00:46:48] Speaker 00:
Oh, I don't know if there's a contempt opportunity here, but if there is, I think there's always the opportunity if somebody violates a court order.

[00:46:55] Speaker 00:
I don't believe he's going to have grounds to seek contempt, so I want to be careful how I answer the question.

[00:47:00] Speaker 00:
But yes, that for any court order in anything that involves an injunction, you know, if the injunction is to do something tomorrow and it's done, I'm not sure it's true.

[00:47:08] Speaker 01:
But Mr. Youngwood, you were very careful in answering my question to say that you had an ongoing duty as flowing from your status as a fiduciary.

[00:47:17] Speaker 01:
But my question is, don't you also have an ongoing duty more specifically from the permanent injunction in this case?

[00:47:25] Speaker 00:
Yes, but I don't know that the permanent injunction in this case, other than adding people into the pool, and many people who were not going to be beneficiaries became beneficiaries by virtue of this litigation.

[00:47:37] Speaker 00:
This litigation did a great deal to change the plan.

[00:47:41] Speaker 00:
And that settled.

[00:47:43] Speaker 00:
That was long settled back in 2012, if not earlier.

[00:47:47] Speaker 00:
By virtue of that, Hilton has obligations that it didn't have before that happened.

[00:47:53] Speaker 00:
What I don't know that I can agree is those obligations are greater than what the law already required for people to find their plan beneficiaries.

[00:48:00] Speaker 00:
That's why I'm trying to answer.

[00:48:02] Speaker 00:
There were certainly no, well, but there were specifics.

[00:48:07] Speaker 00:
There were specifics that the district court judged, by my count, at least a dozen extra PBI searches, which of course have cost and expense and other aspects to them, that then continued not just for that year-long bimonthly period, but again, one in December of 2016 and another in December of 2017.

[00:48:28] Speaker 00:
So those were certainly

[00:48:31] Speaker 00:
I don't know if even those were additional obligations, they were specified obligations.

[00:48:36] Speaker 00:
What we do not have now is specified obligations.

[00:48:39] Speaker 01:
And the concerns, how do you respond to the concerns of plaintiff's counsel that PBI had come up empty handed and they managed to find verified addresses for the unfindable

[00:48:58] Speaker 01:
900 or 1,000 class members.

[00:49:01] Speaker 01:
You can understand that that would put them in a position of concern on behalf of their clients with just taking PBI and Mr. Hernandez's efforts as the best that reasonably could be done.

[00:49:16] Speaker 00:
But again, focusing on that narrow example and the most recent, the fact is they hadn't found 900 people who hadn't been found.

[00:49:25] Speaker 01:
Some of them had an interim.

[00:49:27] Speaker 00:
The majority of them had been located.

[00:49:30] Speaker 00:
And there are other explanations set out extensively in the material before the district court, that the district was available for the district court for review and for them to contest if they wished, that was there.

[00:49:45] Speaker 00:
What I believe plaintiff is asking for is for you to appoint him plan administrator, something that he wasn't granted and didn't appeal.

[00:49:52] Speaker 00:
He wants an accounting, something he apparently hasn't asked for since 2011 and didn't ask for again until he wrote the briefs before your honors.

[00:50:02] Speaker 01:
He was consistently asking for, I mean, you know what he was asking for.

[00:50:04] Speaker 01:
He was asking for compliance reporting.

[00:50:07] Speaker 01:
He wants to know at a more concrete level what you're doing, what's worked, what hasn't, right?

[00:50:12] Speaker 00:
And I, Your Honor, actually I don't know what he wants.

[00:50:16] Speaker 00:
I think what he wants is a person by person analysis of what everything has been done to find Mr. Smith or Mr. Jones for all of the people who haven't been located, which in fact is a much smaller group.

[00:50:30] Speaker 01:
Presumably you have on your spreadsheets and presumably you have that information.

[00:50:34] Speaker 01:
You've been keeping track of every effort that's been made, presumably, right?

[00:50:39] Speaker 00:
There are spreadsheets that we've given before and no doubt they could be regenerated, but the district court's jurisdiction, either by law, by order of this court, or by her own decision, whichever way you want to look at it, a decision well within her discretion has ended.

[00:50:55] Speaker 00:
And there are hundreds, if not tens of thousands of plans like this out there that didn't have the fortune of being in front of a court for two decades.

[00:51:05] Speaker 00:
The court's involvement in this needs to end.

[00:51:08] Speaker 00:
And if there are further grievances, problems, there are remedies.

[00:51:12] Speaker 00:
And to give the easiest example, plaintiff's counsel

[00:51:17] Speaker 00:
On behalf of 220 people, followed an administrative review process with the court.

[00:51:22] Speaker 00:
This is on the vesting part, which there are no questions on, so I don't want to lead into it unless there are questions.

[00:51:28] Speaker 00:
But in that part of the case that plaintiff's counsel would like to be part of this case, but the district court more than a decade ago said it was not,

[00:51:36] Speaker 00:
He, on their behalf, followed administrative procedure, went through it, and then, based on those results, brought another class case before the very same district court judge.

[00:51:47] Speaker 00:
And there's a suggestion in one of the briefs that this district court judge must have gotten tired of this or something.

[00:51:52] Speaker 00:
The words are the words.

[00:51:54] Speaker 00:
Well, if she did, her reward was a new case.

[00:51:56] Speaker 00:
So I think the suggestion that after close to 20 decisions in this case, she's not giving it attention and that's why she ended jurisdiction is not fair.

[00:52:06] Speaker 00:
with due respect.

[00:52:08] Speaker 00:
But there is no basis in the law, or certainly I can say it was well within her discretion, to conclude after all the work she saw Hilton do.

[00:52:19] Speaker 00:
We're not talking about the Hilton that 20, 30 years ago wrote a plan that was later found to be in violation of the law.

[00:52:26] Speaker 00:
The Hilton plan that's appeared in front of the district court was, in her view, you can read the decisions, cooperative.

[00:52:38] Speaker 00:
When suggestions were made by plaintiff's counsel, they were incorporated.

[00:52:42] Speaker 00:
And when the judge went through it, although she didn't find everything perfect, she changed things.

[00:52:47] Speaker 00:
They were readily changed.

[00:52:49] Speaker 00:
She extended the requirements of the mailings by some number of years.

[00:52:53] Speaker 00:
And it is well within her discretion to say, that's enough.

[00:52:57] Speaker 00:
And yes, if there's some clear contempt violation, you can go contempt.

[00:53:02] Speaker 00:
And otherwise, as the white case shows, there are other avenues to challenge this plan.

[00:53:07] Speaker 00:
There always will be, but it shouldn't be in a case that was filed in 1999.

[00:53:12] Speaker 01:
So you're still looking, you're still using PBI to fulfill your fiduciary duty to... I believe PBI is still retained by the client, yes.

[00:53:21] Speaker 01:
To try to find the people that haven't been found.

[00:53:23] Speaker 00:
To try and find these people and other people that weren't even affected by this case.

[00:53:26] Speaker 00:
This case, again, there's a feel in the briefs that this case was about everything wrong with the Hilton plan.

[00:53:34] Speaker 00:
There was something very significant wrong with that plan.

[00:53:37] Speaker 00:
It's why it cost the client a lot of money, and they had to fix the backloading problem.

[00:53:42] Speaker 00:
There were other problems investing, and there were certainly some problems in records.

[00:53:46] Speaker 00:
But notwithstanding all the papers that my colleague shrunk to a little book because we couldn't even carry them, and everything else that's been in the case for the last 20 years,

[00:53:55] Speaker 00:
The case is not about the Hilton plan.

[00:53:58] Speaker 00:
It's about aspects of it, and those aspects, according to the district court judge, have been handled sufficiently that her jurisdiction could end.

[00:54:07] Speaker 04:
Any other questions?

[00:54:09] Speaker 04:
Thank you, Your Honor.

[00:54:11] Speaker 04:
I already know the answer to my question, which is, is there time left?

[00:54:15] Speaker 04:
Apparently not.

[00:54:16] Speaker 04:
We'll give you two more minutes.

[00:54:23] Speaker 04:
Let me begin with a question of my own.

[00:54:25] Speaker 04:
So the district court repeatedly says that the defendants are in compliance such that the judgment is satisfied.

[00:54:34] Speaker 04:
Would we have to find clear error on the part of the district court or that the court is misinterpreting her own judgment to give you victory here?

[00:54:44] Speaker 05:
You could find either one.

[00:54:46] Speaker 04:
But we would have to find either one.

[00:54:48] Speaker 05:
Either the- I think that the

[00:54:51] Speaker 05:
The sentences that she drew on for that were in the context of a motion to release a supersedious bond and were based on... I have those in front of me.

[00:55:02] Speaker 04:
Yes.

[00:55:02] Speaker 04:
It is true that they are in responding to those motions, but she is not saying it's only because of the standard for supersedious bonds that I'm saying this.

[00:55:14] Speaker 04:
She's saying that the court concludes that the defendants are in compliance

[00:55:22] Speaker 04:
In sum, the court finds that the defendants have paid increased benefits to approximately 11,000 of the 20,000, sent notices to approximately 5,600.

[00:55:31] Speaker 04:
Defendants have unquestionably satisfied the court's judgment as to those 16,600.

[00:55:39] Speaker 04:
As for those who are due a payment but have not yet received their payments, the court finds that the defendants are making reasonable efforts in compliance with the court's order.

[00:55:48] Speaker 04:
The court finds the facts that defendants have not yet been able to locate or pay all of these remaining individuals is not evidence of noncompliance with the court's judgment.

[00:55:58] Speaker 04:
Now, I understand you think that it is evidence of noncompliance, but in order to hold that, we would have to rule that either the district court clearly erred or that the district court misconstrued her own judgment.

[00:56:12] Speaker 04:
Is that right?

[00:56:14] Speaker 05:
Yes.

[00:56:16] Speaker 05:
Yes.

[00:56:18] Speaker 05:
Obviously the unquestionably satisfied is not correct.

[00:56:23] Speaker 05:
The notices did not go out to confirmed addresses and those people were not paid.

[00:56:31] Speaker 05:
So the judgment doesn't have any intermediate category for

[00:56:38] Speaker 05:
you know, excusing the payment.

[00:56:40] Speaker 05:
It says that all payments must be made.

[00:56:43] Speaker 05:
And if it needed to be modified to address people with deferred benefits, there should have been a motion for modification.

[00:56:50] Speaker 05:
But I think what we're going towards here, you know, is the

[00:56:57] Speaker 05:
We have a permanent injunction.

[00:57:00] Speaker 05:
The council admits that there's a continuing permanent injunction requiring all of these people to be paid.

[00:57:08] Speaker 05:
And according to our records, there's 8,500 of them who haven't been paid.

[00:57:16] Speaker 05:
That is there, but what we're going towards is a walled off permanent injunction where the only way we can get in is through what he's calling clear contempt.

[00:57:29] Speaker 05:
I'm saying that when this court said that the district court had remedial options and cited the Cobell case, that those remedial options include continuing supervisory jurisdiction or reopening it, and those remedial options clearly include an accounting.

[00:57:50] Speaker 01:
Do you disagree with Mr. Youngwood that you got detailed concrete information about all the contested class members in, I think he said 2017 was the most recent time?

[00:58:06] Speaker 05:
No, we didn't.

[00:58:07] Speaker 05:
We got some information in 2017.

[00:58:09] Speaker 05:
We didn't get the kind of updates that they had given us before.

[00:58:13] Speaker 05:
We got some information about that group of people, and there were some additional people that were paid.

[00:58:20] Speaker 05:
And so that's where we got from 55% of the people being paid to our using 60% of the people as being paid.

[00:58:31] Speaker 02:
Further questions?

[00:58:33] Speaker 04:
All right, thank you.

[00:58:33] Speaker 04:
We'll take the matter under submission.

[00:58:35] Speaker ?:
Thank you.