[00:00:00] Speaker 00:
the case number 25-1753.

[00:00:03] Speaker 00:
Jamal Jacobafi, individually and on behalf of all others similarly situated, at balance, versus Hilton Hotel's retirement plan at L. Mr. Bruce for the at balance, Mr. Youngwood for the FLEs.

[00:00:17] Speaker 01:
Good morning, Mr. Bruce.

[00:00:18] Speaker 01:
You may proceed when you're ready.

[00:00:20] Speaker 03:
Thank you, Your Honour.

[00:00:22] Speaker 03:
May it please the court.

[00:00:24] Speaker 03:
The judgment here is one that we secured in this litigation after 15 years.

[00:00:31] Speaker 03:
It provides for increased retirement benefits to a class of over 20,000 people.

[00:00:38] Speaker 03:
There was not just a general order describing the relief, but the relief was actually calculated individual by individual by the defendants Hilton and reviewed by the plaintiffs.

[00:00:54] Speaker 03:
that those calculations are described in my former associate Allison Pianta's declaration at JA 182 and it was called a true up spreadsheet.

[00:01:08] Speaker 03:
The true up spreadsheet was as I said calculated by

[00:01:13] Speaker 03:
Hilton based on the formulas that the court adopted in order to be adopted by Hilton and a plan amendment.

[00:01:27] Speaker 03:
For the first two years,

[00:01:30] Speaker 03:
after this case came back from the Court of Appeals, for the first two years, implementation went relatively smoothly.

[00:01:41] Speaker 03:
It was taking up some of Judge Cattelli's time because there were issues, but a lot of people were paid.

[00:01:55] Speaker 03:
Soon as the district court stopped the active supervision of this case, the progress dropped to the floor.

[00:02:07] Speaker 03:
We weren't expecting that.

[00:02:09] Speaker 03:
The queue, which is in Exhibit 2 at JA 197, showed that there were a number of beneficiaries who had been notified, and Ms.

[00:02:26] Speaker 03:
Pienta's declaration

[00:02:28] Speaker 03:
at JA 183 through 184 goes over that queue and talks about how the beneficiaries had contacted Hilton.

[00:02:39] Speaker 03:
And we had gone out and confirmed additional addresses.

[00:02:44] Speaker 03:
So the total of that was like 1,500 people.

[00:02:47] Speaker 03:
But the progress, as soon as Judge Cattelli ended active supervision, the progress dropped to less than 100 per year.

[00:02:58] Speaker 01:
As I read it, actually, the progress slowed a little bit before she relinquished active jurisdiction.

[00:03:05] Speaker 01:
It actually had already slowed a bit.

[00:03:09] Speaker 03:
No, the last year from April 2014 to April 2015, it was 1,625 new payments.

[00:03:24] Speaker 03:
going from 1,625 to less than 100 was a big drop.

[00:03:28] Speaker 03:
And it was particularly a big drop because there were a lot of people in the queue that we thought were going to be paid.

[00:03:37] Speaker 03:
So that is in 10 years later.

[00:03:43] Speaker 03:
We're still waiting for any kind of a spurt or a jump in the payments.

[00:03:50] Speaker 03:
It just hasn't happened.

[00:03:51] Speaker 01:
And now at this point, do you know what the number of unpaid class members is?

[00:04:00] Speaker 03:
The number of unpaid class members that we're calculating is around 7,200.

[00:04:09] Speaker 03:
Hilton said in the declaration was that it was only 2,800 left.

[00:04:18] Speaker 03:
But so there was a difference there between the 8,000 that they were starting with and what they said it is today of about 5,200 people.

[00:04:30] Speaker 03:
We said that those 5,200 people were not accounted for.

[00:04:36] Speaker 01:
So what you're referring to is the numbers as of October 2022?

[00:04:43] Speaker 01:
that that's the number that that I see in the record from of Hilton says 2791.

[00:04:49] Speaker 01:
Right.

[00:04:51] Speaker 01:
But that's already three years ago.

[00:04:53] Speaker 01:
So you don't have any information about any progress in the last years.

[00:04:57] Speaker 03:
No, we have the information from the Form 5500, which indicates that there has not been any jump in annuitants or people who've received lump sums.

[00:05:09] Speaker 03:
And so we do have some information since then from the Form 5500, but we don't have any information from Hilton.

[00:05:22] Speaker 03:
the opposition brief which Hilton filed on this appeal.

[00:05:29] Speaker 03:
Hilton, we had pressed on that this 5,200 people were not accounted for and that they were in addition to the 2,791 that we had pressed on that and in response Hilton did say in their

[00:05:47] Speaker 03:
in their opposition that some of those individuals may well have already been paid or were otherwise determined to be ineligible to receive benefits under the plan.

[00:06:02] Speaker 03:
So that's on page 45 of their opposition brief.

[00:06:06] Speaker 03:
That was the statement that people have otherwise been determined to be ineligible to receive benefits under the plan is inconsistent with the true up list.

[00:06:17] Speaker 03:
There was no provision for Hilton to come along and change the calculations and the individuals who were named as receiving relief.

[00:06:30] Speaker 03:
That was our fixed starting point.

[00:06:34] Speaker 03:
And if Hilton found something where they felt there was a need to change the injunction,

[00:06:43] Speaker 03:
the procedure is to come into the court.

[00:06:46] Speaker 03:
Because obviously, changing the injunction five or 10 years afterwards is a big deal.

[00:06:53] Speaker 03:
And there needs to be notice to the class and approval by the court.

[00:06:59] Speaker 03:
And approval by the court would be fairly rare.

[00:07:03] Speaker 03:
There was no anticipation of that.

[00:07:06] Speaker 03:
And so this was a big reveal here, which was not

[00:07:11] Speaker 03:
ever broached with Judge Cattelli.

[00:07:15] Speaker 03:
So they've introduced a new thing there.

[00:07:19] Speaker 03:
What Judge Cattelli was told was that 95% of the class, of that class of 20,600, that 95% of that class had been paid or notified of increases in their benefits.

[00:07:39] Speaker 01:
So now there's... Did you raise this issue before Judge Kohler-Katelli, the issue of Hilton changing its view of who is entitled to relief?

[00:07:54] Speaker 03:
No, because we didn't have any statement like this.

[00:07:57] Speaker 03:
What we raised was that there was 5,200 people unaccounted for that we couldn't find that.

[00:08:03] Speaker 01:
I thought you said 7,200.

[00:08:05] Speaker 01:
5,200 unaccounted for.

[00:08:09] Speaker 03:
5,200 unaccounted for, plus they were conceding that there were 2,100 who had been notified but not paid.

[00:08:18] Speaker 03:
And so the total of that was where we got the 7,200.

[00:08:25] Speaker 03:
But Judge Cattelli was just told 95% have been paid or notified of the increase and that totaled to 19,000 people.

[00:08:37] Speaker 01:
Those were... It may be my fault in reading too quickly, but I didn't see this argument even in your brief before us, that Hilton had somehow

[00:08:48] Speaker 01:
reassessed who within the class is entitled to further relief?

[00:08:52] Speaker 03:
No, it's in our reply brief in three different places.

[00:08:58] Speaker 03:
We said that the 5,200 people had disappeared and that now there was some suggestion that some of them at least had been made ineligible.

[00:09:10] Speaker 03:
So that was a new development.

[00:09:14] Speaker 04:
It seems to me from reading this that whether you're entitled to post-judgment discovery, the standard for that is about the same as whether you're entitled to an accounting.

[00:09:33] Speaker 04:
Is that correct?

[00:09:35] Speaker 03:
Yes, I think so.

[00:09:36] Speaker 03:
Yes.

[00:09:36] Speaker 03:
And I think that that's part of what tells us that the standard for post-judgment discovery that the district court applied was incorrect because the standard for an accounting is that it's a reasonable request.

[00:09:52] Speaker 03:
that it's like the standard for discovery, that if you've got a request that will produce potentially favorable information for your side, that you're entitled to discovery on that.

[00:10:08] Speaker 03:
And that's essentially what the standard for an accounting is.

[00:10:12] Speaker 04:
And both standards, or one or the other,

[00:10:17] Speaker 04:
at least partly depends upon whether you've provided sufficient evidence of non-compliance with the injunction.

[00:10:28] Speaker 03:
Well, under the Levitt and Dehmis standard, it's significant.

[00:10:34] Speaker 03:
evidence of non-compliance.

[00:10:37] Speaker 04:
Well, they put in a significant question.

[00:10:40] Speaker 03:
Significant question, yes.

[00:10:41] Speaker 04:
I can ask a significant question where the answer is perfectly clear.

[00:10:50] Speaker 04:
It's not the question that matters, it's what the evidence indicates.

[00:10:54] Speaker 03:
Well, and the Levitt case has two

[00:10:59] Speaker 03:
helpful principles to that.

[00:11:01] Speaker 03:
And the first is that a significant question regarding noncompliance is necessarily considerably less than proving noncompliance.

[00:11:13] Speaker 01:
I have a question about the distinction, if any, between

[00:11:18] Speaker 01:
generally post-judgment discovery and an accounting.

[00:11:22] Speaker 01:
And I was looking in the record to see sort of the reports that, for example, Hilton submitted when the Labor Department was doing its inquiry or any kind of spreadsheet that would just show the status of

[00:11:37] Speaker 01:
the outstanding claims in some kind of really summary form.

[00:11:42] Speaker 01:
And I know you've asked for a lot more than that.

[00:11:45] Speaker 01:
But to the extent that an accounting is something more limited, less burdensome, but that just gives a snapshot into where things stand, do you have anything you can tell me about what is an accounting?

[00:12:00] Speaker 01:
in this context?

[00:12:02] Speaker 03:
Well, I think an accounting in this circuit, the leading cases, Cobell versus Salazar, which was about the Department of Interior's accounting for the Indian trust funds.

[00:12:15] Speaker 03:
And I think in that context, what an equitable accounting meant was

[00:12:24] Speaker 03:
The records were in such a condition that you could not get an accounting firm to do an accounting statement on them.

[00:12:36] Speaker 03:
And so they used an equitable accounting to be more practical, but it doesn't mean the same as a summary.

[00:12:45] Speaker 03:
that in some cases, maybe a summary would be sufficient.

[00:12:49] Speaker 03:
But in the Cobell case, they did a thorough counting, as I understand it.

[00:12:57] Speaker 01:
So what, I mean, if it were a spreadsheet, what would the columns be?

[00:13:02] Speaker 01:
I guess I'm asking sort of if, what would be the minimum that would give, I mean, what I'm concerned about, let me just lay this out.

[00:13:12] Speaker 01:
is we held in the last decision remanding this to Judge Coler-Cattelli that even though she had terminated active supervision, that that didn't mean that she didn't have jurisdiction to make sure that Hilton was keeping up with its obligation under the permanent injunction to

[00:13:35] Speaker 01:
to continue to fulfill its obligations.

[00:13:39] Speaker 01:
But her stepping back from active supervision means it's on the plaintiff, class representative, and counsel to make sure.

[00:13:48] Speaker 01:
And the Labor Department is no longer investigating, so to make sure that things are moving along.

[00:13:57] Speaker 01:
It's hard to see it as an abuse of discretion what Judge Coler-Cattelli's unwillingness to give you all the information that you want.

[00:14:06] Speaker 01:
Clearly, that information would give you a lot to work with.

[00:14:10] Speaker 01:
But she says, no, it's my discretion that I'm not going to give you all that information.

[00:14:14] Speaker 01:
But she didn't separately address

[00:14:17] Speaker 01:
the question of an accounting as such.

[00:14:22] Speaker 01:
And so what I'm trying to understand is does she need to, is that something distinct that is more streamlined, that is just a bird's eye view?

[00:14:30] Speaker 01:
And if so, what would be the essential components of, I mean, I'm envisioning a spreadsheet, but you're the expert, you tell me what would be something where you could keep track and if you had information about someone's whereabouts or

[00:14:44] Speaker 01:
If somebody contacted you to say, look, I really haven't been paid what's going on, or I got this notice, what do I do?

[00:14:49] Speaker 01:
That you would have some insight into what's going on.

[00:14:54] Speaker 03:
Well, I think the good thing here is that

[00:14:58] Speaker 03:
up until when Judge Cattelli ended the act of supervision, we were getting status reports from Hilton that were in the form of spreadsheets.

[00:15:10] Speaker 03:
And so that was what our exhibit one, our exhibit two were based on those spreadsheets.

[00:15:18] Speaker 03:
So we weren't, we were getting information for

[00:15:24] Speaker 03:
each individual, and your honor actually asked Hilton's counsel about that in 2019, are you still keeping these records?

[00:15:37] Speaker 03:
And Hilton's counsel's representation was yes, they are.

[00:15:41] Speaker 01:
We don't have a copy of any of those DAS reports that I've seen in the record, either the appendix here or in the district court record, is that right?

[00:15:49] Speaker 01:
But you did, you were receiving those.

[00:15:51] Speaker 03:
Yes.

[00:15:52] Speaker 01:
Can you describe what

[00:15:54] Speaker 01:
how much information was in those?

[00:15:56] Speaker 01:
I mean, I can also ask Hilton, but.

[00:15:58] Speaker 03:
It was individual by individual for the 20,692 people.

[00:16:04] Speaker 03:
And it included addresses that were being used, but it also included whether they had responded and that kind of thing.

[00:16:12] Speaker 01:
And you're not getting those anymore?

[00:16:14] Speaker 03:
No, we haven't gotten those since 2015.

[00:16:19] Speaker 03:
Then in 2017, we got an abbreviated

[00:16:23] Speaker 03:
list of the new payments that just said paid and didn't give any other information and it didn't give any information about the people who were not paid.

[00:16:35] Speaker 03:
So that was the list that just gave us information for 187 people when we were expecting hundreds of 187 people for two years when we were expecting hundreds of new payments.

[00:16:51] Speaker 01:
So they only gave you the people they had, in their view, successfully contacted.

[00:16:55] Speaker 01:
They didn't give you the other status for the outstanding.

[00:16:58] Speaker 02:
Right.

[00:17:00] Speaker 02:
Suppose we rule against you on the first question regarding discovery.

[00:17:07] Speaker 02:
In other words, no serious question regarding compliance.

[00:17:13] Speaker 02:
How could it then be an abuse of discretion on the accounting issue for the district court to conclude that an accounting is not an appropriate, equitable relief to redress ERISA?

[00:17:32] Speaker 02:
It just seems like the claims rise or fall together.

[00:17:41] Speaker 03:
The first question of the significant question regarding non-compliance, that it's considerably less than proving non-compliance.

[00:17:52] Speaker 03:
Judge Cattelli was using a standard where we would have to prove them.

[00:17:57] Speaker 02:
Assume we rule against you on that point.

[00:18:01] Speaker 02:
I'm just trying to figure out what independent work, if any, your accounting claim does.

[00:18:09] Speaker 02:
It seems to me once you lose on question one, you've lost on question two.

[00:18:14] Speaker 03:
No, because question one, the standard should be almost identical to an accounting.

[00:18:23] Speaker 03:
And if the standard is raised up

[00:18:28] Speaker 03:
like to this level and the accounting standard was here, then the accounting comes into play because the significant question standard has been transformed.

[00:18:40] Speaker 01:
But that doesn't help you because the premise of Judge Katz's question is you haven't shown a

[00:18:51] Speaker 01:
significant risk of noncompliance or significant possibility.

[00:18:56] Speaker 01:
And so if that's the standard, why doesn't that apply both to an accounting and more generally to post-judgment discovery?

[00:19:05] Speaker 01:
So is there anything that entitles you to an accounting even if you are not generally entitled to the other post-judgment discovery that you seek?

[00:19:18] Speaker 03:
Well, if we're not entitled to post-judgment discovery under Judge Cattelli's decision, that is because the district court was not following the Levit or the Deimos decisions.

[00:19:35] Speaker 03:
but was instead following this Western District of Oklahoma decision from 20 years earlier.

[00:19:42] Speaker 02:
You're just arguing that you win on the discovery point.

[00:19:46] Speaker 03:
I think you're insisting that... No, I'm saying that the district court's decision is predicated upon

[00:19:58] Speaker 03:
the significant question standard being transformed into something other than what it was in in Damas or Levitt.

[00:20:07] Speaker 04:
I want to come back to Judge Cassis and Judge Pillard's question.

[00:20:13] Speaker 04:
It seems to me that an accounting in it was common law as well as equity from what I understand that it's just an accounting is a form of discovery

[00:20:27] Speaker 04:
And in fact, I was just reviewing your motion that was filed after the status report.

[00:20:34] Speaker 04:
And you say essentially that in your motion.

[00:20:39] Speaker 04:
And then you quote some treatise from 18... What is it?

[00:20:45] Speaker 04:
1895 saying essentially that.

[00:20:48] Speaker 03:
Right, it really preceded the discovery rules.

[00:20:51] Speaker 04:
Yeah, so before discovery, to get back to the question, if you're not going to be allowed and properly not allowed to conduct post-judgment discovery, it follows that you're not entitled to an accounting because accounting is a form of discovery.

[00:21:14] Speaker 03:
No, no.

[00:21:18] Speaker 04:
Where do you get off the boat on that question?

[00:21:23] Speaker 03:
Well, I think because when we're saying that an accounting and post-judgment discovery standards are very similar, it's based on Levitt and Deimos.

[00:21:35] Speaker 03:
It's not based on this 1980 decision from the Western District of Oklahoma.

[00:21:44] Speaker 04:
It is based on Elias Merwin principles of equity pleading.

[00:21:50] Speaker 04:
1895, according to your motion.

[00:21:54] Speaker ?:
Right.

[00:21:55] Speaker 03:
Right, an accounting, well, the case that we cited, too, was there's an 1810 Supreme Court decision on an accounting where a partner in a jewelry store had suspicions about his partner.

[00:22:13] Speaker 03:
And the court said that he was entitled to an accounting, which would mean where all the money went.

[00:22:20] Speaker 03:
that he was entitled to an accounting, even if it was not probable that he was going to win.

[00:22:28] Speaker 03:
Because when people have fiduciary duties to each other,

[00:22:36] Speaker 03:
You want the beneficiaries to be able to get information to see whether the fiduciary duties are being carried out.

[00:22:45] Speaker 03:
And here, we've got 10 years, and we've got 5,200 people who have just disappeared and seem to have been classified as ineligible.

[00:22:57] Speaker 03:
And we have another 2,100 people who just sit there year after year not getting paid.

[00:23:04] Speaker 03:
And there's no inquiry into why they're not being paid.

[00:23:09] Speaker 03:
Why are they not getting their retirement benefits?

[00:23:12] Speaker 03:
And one thing...

[00:23:14] Speaker 03:
that may not be obvious is what we were doing was we got increases to retirement benefits.

[00:23:23] Speaker 03:
And so the people who are not getting paid are not only not getting those increases, they're not getting the base amount that they were entitled to even before our lawsuit.

[00:23:37] Speaker 01:
All right.

[00:23:37] Speaker 01:
Thank you.

[00:23:38] Speaker 01:
Any other questions?

[00:23:39] Speaker 01:
All right.

[00:23:40] Speaker 01:
We'll give you some couple minutes for rebuttal.

[00:23:42] Speaker 04:
Thank you.

[00:23:59] Speaker 05:
Good morning, your honors, and may it please the court, Jonathan Youngwood for the appellees.

[00:24:04] Speaker 05:
I want to begin, Judge Randolph, with your question as to the difference, if any, between an accounting and the discovery.

[00:24:13] Speaker 05:
And I submit to you, at least in this case, there's none whatsoever.

[00:24:16] Speaker 05:
I'm not sure there'd ever be.

[00:24:17] Speaker 05:
But if you look at the record at page 176, which is

[00:24:25] Speaker 05:
plaintiff's proposed order had the motion been granted.

[00:24:30] Speaker 05:
He's very clear as to what relief is sought and specifically on page 179, page 4 of the proposed order, the request was that defendants shall provide counsel for the class and this court with full discovery and a full accounting of Hilton's implementation

[00:24:47] Speaker 05:
of the injunction since February 2015.

[00:24:49] Speaker 05:
It then goes on for about 10 lines to describe what that means, which is effectively massive discovery concerning every contested class member, every contact with each class member, and then it goes on to discuss all communications

[00:25:07] Speaker 05:
between Hilton, its officers, agents, and the plan's service providers and outside council related to the implementation.

[00:25:15] Speaker 04:
Look at that joint status report where the plaintiff sets forth its intention and when you get to the question that you're discussing it's put in terms of

[00:25:28] Speaker 04:
Discovery slash accounting.

[00:25:32] Speaker 05:
Exactly, Your Honor.

[00:25:33] Speaker 05:
And interestingly enough, in this court's two times ago decision, the decision from 2019 on page three of the per curiam decision, when there is discussion again of post-judgment discovery and compliance reporting, which the court describes as akin to seeking an accounting,

[00:25:57] Speaker 05:
It is quite clear that this court interpreted the plaintiff's position on that appeal and adopted it that they're really one and the same.

[00:26:05] Speaker 05:
That's page three of this court's decision, the first full paragraph.

[00:26:08] Speaker 05:
There are multiple other times in the record where there is this clear overlap.

[00:26:13] Speaker 05:
And so I do think, Judge Katz, as it goes to what is the standard and whether there are really two questions before you or one.

[00:26:20] Speaker 05:
And I would submit to you that there's only one question before you, which is,

[00:26:25] Speaker 05:
maybe one with a 1A and a 1B, which is what's the right standard and was it applied?

[00:26:29] Speaker 05:
In terms of what?

[00:26:30] Speaker 01:
I have a couple of questions about that.

[00:26:32] Speaker 01:
One is the name plaintiff has an obligation, a fiduciary obligation to the class.

[00:26:41] Speaker 01:
And it's hard for me to envision how that obligation can actually be fulfilled without some

[00:26:51] Speaker 01:
some kind of something like the status report.

[00:26:54] Speaker 01:
And I hear you and I read Judge Coler-Catelli to say wanting everything, the correspondence, every last jot and tittle of what has gone on as Hilton has proceeded to try to fully implement the injunction is, you know, it's hard to see that she's abused her discretion in denying that.

[00:27:16] Speaker 01:
But on the other hand,

[00:27:19] Speaker 01:
The notion that you have a class representative in a responsible role to make sure that the class members are getting their due, how is plaintiff supposed to do that with zero information?

[00:27:40] Speaker 05:
Well, Your Honor, I guess I'd answer it this way.

[00:27:43] Speaker 05:
First of all, I think the plaintiff is well represented by my friend, Mr. Bruce, who has fought this case for coming up on three decades and searching for whatever he can show to get to some discovery.

[00:27:58] Speaker 05:
But it still has to live within the confines of this court's 2019 decision, and more generally, within the confines of the test for post-judgment discovery.

[00:28:09] Speaker 01:
actual question, which is, how is a person with a responsibility to make sure that this is continuing to go along, even assuming that there's no bad faith.

[00:28:21] Speaker 01:
But if there's things that they can point out that might be helpful or just a gentle knowing there's somebody watching.

[00:28:30] Speaker 01:
I mean, obviously, your incentives, your clients' incentives, are not aligned with the plaintiff class.

[00:28:37] Speaker 01:
And the plaintiffs

[00:28:39] Speaker 01:
Class representatives incentives are so just in a very basic sense, just like in Cobell, where there's a trust obligation, typically we do require some kind of accounting where a person or an entity is in a fiduciary role.

[00:28:58] Speaker 05:
So, Your Honor, respectfully, I think I disagree with the premise.

[00:29:02] Speaker 05:
I don't know that my clients, which have their own duties to class members, are opposed to the interests of the lead plaintiff or of the class.

[00:29:12] Speaker 05:
My clients have every incentive.

[00:29:14] Speaker 05:
I stood before this court six years ago and said, I'm quoting from the court's decision that Hilton has a continuing obligation to try and find anyone

[00:29:25] Speaker 05:
who comes into status and to pay the things and I don't think there is a divergence of interest.

[00:29:32] Speaker 05:
I understand there's two different people and this is an adversarial proceeding in the court sense, but Hilton has its own responsibilities to take care of its plan beneficiaries.

[00:29:44] Speaker 05:
Your honor, what could they find to answer the question?

[00:29:46] Speaker 05:
They can find significant questions going to systemic issues.

[00:29:51] Speaker 05:
That is the reading of the 2019 decision of this panel, of the panel of this court.

[00:29:59] Speaker 05:
And it's consistent with the Damis case, which

[00:30:06] Speaker 05:
to get to it, I don't think we are disputing as the standard or plaintiffs are disputing as the standard either for post-judgment discovery, that's on page 18 of plaintiff's opening brief, or on page 22 they recite the same standard for accounting.

[00:30:24] Speaker 05:
We almost, I'm going to suggest to you, have the opposite of that proof here.

[00:30:27] Speaker 05:
And why do I say that?

[00:30:29] Speaker 05:
I say it because of the issue of the application for the submission of additional evidence, which Plaintiff's Council made before the district court and on pages A694

[00:30:45] Speaker 05:
and 695, the motion to supplement the record was granted.

[00:30:48] Speaker 05:
The reason I point to it is it was an example of one class member, one, with an issue.

[00:30:56] Speaker 05:
And I would submit to you that almost proves the negative for me.

[00:31:00] Speaker 01:
What about the rate?

[00:31:02] Speaker 01:
We only have the information as of October 2022.

[00:31:09] Speaker 01:
And there it appears from at least from your the dinner declaration that they were 2791 class members yet to be paid.

[00:31:20] Speaker 01:
Do you have any more current information about how many have yet to be paid?

[00:31:25] Speaker 05:
I don't have the specific numbers broken down by the categories that are in Ms.

[00:31:29] Speaker 05:
Dinard's declaration on page 5 of 74.

[00:31:33] Speaker 05:
What I can tell you is that other people have continued to come in to pay status.

[00:31:38] Speaker 05:
It would be natural given that some at the time were actively employed, some at the time had not reached the age standard.

[00:31:44] Speaker 05:
And what I can tell you is I've confirmed with my client that the steps being taken largely described in the remaining paragraphs of the declaration with some modifications as time would pass.

[00:31:56] Speaker 05:
For example, my understanding is LifeWorks is now TELUS and things like that.

[00:32:01] Speaker 05:
But those efforts to continue to find class members or to commence payments or to update payments have continued.

[00:32:09] Speaker 05:
But to your specific question, I don't have updated.

[00:32:12] Speaker 05:
numbers as of today, I suspect data might be available for 2022 and 2023.

[00:32:17] Speaker 05:
I'm not sure it's soon enough for 2024, and I'm sure it's not soon enough for 2025.

[00:32:24] Speaker 01:
And the status reports that Hilton was supplying initially, that

[00:32:33] Speaker 01:
Mr. Bruce described, is that something that would be onerous to abide?

[00:32:40] Speaker 05:
I believe it would be onerous, Your Honor.

[00:32:41] Speaker 05:
I think the way he described them to you, it was a person by person list with great detail.

[00:32:49] Speaker 01:
But I also respect- I assume that that's something that Hilton is keeping anyway.

[00:32:54] Speaker 05:
Hilton has records on all the class members, absolutely.

[00:32:56] Speaker 05:
But whether it's in a form for output,

[00:33:00] Speaker 05:
I am not sure.

[00:33:00] Speaker 05:
I have not seen it for recent years.

[00:33:04] Speaker 05:
But you're right, I do go to the threshold question, which is, when you look at

[00:33:11] Speaker 05:
The damis case, it's not a burden weighing test.

[00:33:15] Speaker 05:
You have to pass a threshold.

[00:33:16] Speaker 01:
I understand your argument about how he's bundled them together and also what the data analysis requires.

[00:33:25] Speaker 05:
Your Honor, I won't go over my time.

[00:33:29] Speaker 05:
The one thing I think I haven't touched on, which I would like to, is the question as to whether or not the district court applied the right standard, and there's some

[00:33:37] Speaker 05:
um obviously briefing on whether or not the mere fact that the court cited the um soya case means that she wasn't applying significant questions i i think the court should be taken in its word in the order the minute order issued on september 6 2022 record at a 53 the court's very clear that she is going to apply danis

[00:34:02] Speaker 05:
She begins her analysis on page A693, saying I'm going to apply Danis.

[00:34:08] Speaker 05:
She then goes through a very lengthy discussion.

[00:34:10] Speaker 05:
This goes to the patent factors, the next five to six pages.

[00:34:14] Speaker 05:
And then when she reaches her conclusion on page 12 to say, now that I've reviewed everything, what's the test?

[00:34:22] Speaker 05:
What's my question?

[00:34:23] Speaker 05:
Middle of page 12, she goes back

[00:34:26] Speaker 05:
and says measured against these standards does not raise significant questions.

[00:34:31] Speaker 05:
So I don't think there can be any question that she said she was going to do something in the order requiring briefing, said in the opinion she would do it, then she did it and then at the end she said I've done it.

[00:34:45] Speaker 05:
that analysis, which is quite extensive over many pages, is entitled to deference from this court.

[00:34:51] Speaker 01:
Do you have any response to Mr. Bruce's argument that Hilton has sort of gone back and redefined who is a class member according to the original definition of who's entitled and how much?

[00:35:07] Speaker 05:
don't have a substantive response to that other than to say, if it was in the reply, I think I missed it as well.

[00:35:14] Speaker 05:
And it certainly wasn't in the opening brief.

[00:35:16] Speaker 05:
And it certainly wasn't presented to the district court.

[00:35:18] Speaker 05:
So I don't think that's here for us today.

[00:35:21] Speaker 05:
Not that I want to invite further litigation below.

[00:35:26] Speaker 05:
And I'm hoping there is no further litigation below.

[00:35:28] Speaker 05:
But there would be ways for him to raise it below.

[00:35:30] Speaker 05:
And the district court, in her discretion and control over her doc, that could address it as she saw fit.

[00:35:39] Speaker 05:
Thank you, Your Honor.

[00:35:40] Speaker 00:
Thank you.

[00:35:40] Speaker 03:
Your Honor, as I might have already communicated,

[00:36:00] Speaker 03:
The issue of changing eligibility to ineligibility is raised in defendant's opposition brief here on appeal.

[00:36:11] Speaker 03:
And it was raised in response to our questions about the 5,200 people who had disappeared.

[00:36:18] Speaker 03:
And in response to that, they said that people may be otherwise determined to be ineligible to receive benefits under the plan.

[00:36:27] Speaker 03:
These are the people who were on the true-up list

[00:36:30] Speaker 03:
that Hilton themselves prepared and we don't even know who these people are and how many of them there are and they're in response to our point that the people who disappeared have never been addressed

[00:36:50] Speaker 03:
We made that point to the district court and we made it on appeal and in response to that they said well they're changing people from eligible to ineligible.

[00:37:02] Speaker 01:
Where are you seeing that in their brief and where are you raising this in your reply brief?

[00:37:09] Speaker 03:
They're saying this on page 45 of their opposition.

[00:37:22] Speaker 03:
And our reply brief, I've written down somewhere where, but it's just literally in at least two different places that we talked about, that they were now broaching this, a new

[00:37:51] Speaker 03:
argument about making people ineligible and that it was okay to do that as if there was no rules protecting people when they have an injunction in their favor that the enjoined party can just change it.

[00:38:07] Speaker 03:
That's

[00:38:15] Speaker 03:
All right.

[00:38:18] Speaker 03:
Can I supply the court with the places in the reply brief?

[00:38:23] Speaker 01:
You may, but we'll be able to read it carefully and with more time, and we'll look for that.

[00:38:28] Speaker 01:
Thank you.

[00:38:28] Speaker 01:
Thank you.

[00:38:31] Speaker 01:
Case is submitted.