[00:00:00] Speaker 02:
So it may be Judge Tong's first day on the bench, but I'm pretty new to obviously presiding and I'm very not not very good at running the clock, obviously.

[00:00:11] Speaker 02:
So we'll be having the next case will come up.

[00:00:15] Speaker 02:
Come on up.

[00:00:16] Speaker 02:
Campbell versus United Health Care.

[00:00:33] Speaker 02:
say it again?

[00:00:34] Speaker 03:
Should I just take the lectern?

[00:00:35] Speaker 02:
Yeah, you can come on up for the lectern as your opposing counsel gets seated or whatever.

[00:00:39] Speaker 02:
And then you heard the drill.

[00:00:43] Speaker 02:
Go ahead and give us your name for the record and how much time you'd like to reserve for rebuttal.

[00:00:47] Speaker 02:
And I'll try to keep us on track.

[00:00:49] Speaker 03:
Good morning.

[00:00:50] Speaker 03:
If I might reserve five minutes for rebuttal.

[00:00:53] Speaker 03:
Good morning, Your Honors.

[00:00:54] Speaker 03:
Jonathan Stieglitz for Appellant Leah Campbell.

[00:00:58] Speaker 03:
Thank you, Your Honors, for allowing us to give oral argument here today.

[00:01:01] Speaker 03:
May it please the court.

[00:01:03] Speaker 03:
Miss Campbell's briefing goes through a number of matters and bases for reversal or vacating the lower court's decision.

[00:01:11] Speaker 03:
I'm ready and able to discuss all such bases, but I want to focus on two specific ones.

[00:01:18] Speaker 03:
The first basis is the denial of payment for the assistant surgeon's claim.

[00:01:24] Speaker 03:
As presented in our papers, there was no basis for United's denial of the claim, and the district court's affirmance of United's denial was

[00:01:33] Speaker 03:
Entirely sua sponte as it was based on as it was not based on any argument put forth by United at any time.

[00:01:41] Speaker 04:
The second basis is I understand that the insurance company, I guess, ignored the I'll call them the primary surgeons report that uses the phrase we and obviously referring to the assistant surgeon.

[00:01:56] Speaker 04:
But United apparently took the position that they needed a separate report from the assistant surgeon outlining what it was that he did during the procedure.

[00:02:06] Speaker 03:
United's position throughout the lower court's case was that the procedure was not proven to be an emergency.

[00:02:16] Speaker 03:
That was their position throughout the lower courts case.

[00:02:20] Speaker 04:
But when it came to the assistant surgeon, I thought they also complained about the lack of documentation as to what he did during the procedure.

[00:02:28] Speaker 03:
The language from I believe from all of their briefing that they submitted to the lower court was due to the failure to include medical records in support of the claim or appeals.

[00:02:40] Speaker 03:
United was unable to determine that plaintiffs bariatric surgery was emergent.

[00:02:45] Speaker 02:
So that's what they, so let's go back a little bit.

[00:02:47] Speaker 02:
Yeah, my understanding is that was kind of their argument in the lower court.

[00:02:51] Speaker 02:
Yes.

[00:02:51] Speaker 02:
But the actual notices they sent to Campbell or to your client or to the doctors, I can't remember who, was that the services billed were not documented as performed, which that certainly wouldn't tell me, I'm not a doctor, that wouldn't tell me that it was emergency or not emergency.

[00:03:12] Speaker 02:
It's a little unclear what that means, but it seems to me that would mean that And this is this is for the assistant surgeon, so it could be saying that We don't have any documentation that this procedure was done at all which that seems at odds with the fact that they eventually Well, they did pay out the surgeon so that'd be weird that they would pay for the search so that seems like that and then the other thing that it seems like when you jump over the emergence, so then you go

[00:03:41] Speaker 02:
If that was what they meant, and then you get to the, well, it was an emergency.

[00:03:45] Speaker 02:
And then I think in the lower court, after the lower court made its decision, they said, well, you didn't properly document that the assistant surgeon was there.

[00:03:54] Speaker 02:
But it's not clear to me that that's what I'm not sure if I would understand this to be saying that instead of saying the service.

[00:04:01] Speaker 02:
I guess you could say the services bill were not document as performed because

[00:04:08] Speaker 02:
the services billed means the services by the assistant.

[00:04:13] Speaker 03:
I have the same concerns.

[00:04:14] Speaker 03:
I don't understand.

[00:04:16] Speaker 03:
We followed along with what their argument was before the lower court.

[00:04:19] Speaker 03:
Their argument before the lower court was the procedure was not an emergency and so therefore we responded to that in our briefing before the lower court.

[00:04:27] Speaker 02:
Now I assume they're going to stand up and say no that's what that always meant was what the lower court concluded.

[00:04:32] Speaker 02:
Sure.

[00:04:32] Speaker 02:
The problem is I guess then the question becomes how much of a duty do they have to

[00:04:38] Speaker 02:
uh, to explain that to you instead of just saying this over and over and over again.

[00:04:42] Speaker 02:
Um, and I think what was that?

[00:04:44] Speaker 02:
What was the decision that, um, the least decision written by, uh, judge Kaczynski Bhutan.

[00:04:51] Speaker 02:
Yeah.

[00:04:52] Speaker 02:
Or he's like, you can have it.

[00:04:53] Speaker 02:
You have to have some dialogue here with people.

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

[00:04:56] Speaker 02:
I mean, that may be exactly what he said, but anyway, uh, that's, that's my position as well.

[00:05:00] Speaker 03:
Your honor is that I would think that there would be some sort of dialogue explaining what they needed.

[00:05:05] Speaker 03:
Um,

[00:05:05] Speaker 03:
We also did provide the medical records.

[00:05:08] Speaker 03:
There were medical records.

[00:05:10] Speaker 03:
There's medical records that show.

[00:05:12] Speaker 03:
There's also a consult note, which my friends on the other side did not even reference in their answering brief.

[00:05:17] Speaker 03:
There's a specific consult note from the assistant surgeon.

[00:05:20] Speaker 03:
So he was the consulting physician who saw the patient when the patient came in through the emergency department.

[00:05:27] Speaker 03:
He was the one that saw the patient and indicated that they were going to then proceed to surgery.

[00:05:31] Speaker 03:
And he signs it.

[00:05:33] Speaker 03:
He's literally the same.

[00:05:34] Speaker 03:
It's the same.

[00:05:35] Speaker 03:
It's the same surgeon who's listed on that consult note.

[00:05:37] Speaker 04:
And that was the only report.

[00:05:38] Speaker 04:
He didn't do a separate surgical note report.

[00:05:41] Speaker 03:
He would not have done it.

[00:05:42] Speaker 03:
He would not have done it because he was, it's the treating physician, the one who's literally leading the surgery is the one who's going to, he did it and he referred to we referring to the doc, right?

[00:05:52] Speaker 03:
The primary referred them, the primary referred to we throughout the operative report because it was done in tandem with the other physician.

[00:05:59] Speaker 04:
There's also, I'm sorry, go ahead.

[00:06:01] Speaker 03:
No, the only thing I was going to say was,

[00:06:03] Speaker 03:
Also, they knew about this because we followed their policy where they indicate that, uh, you're supposed to put the modifier 80 on the bill to indicate that an assistant surgeon was working on the procedure.

[00:06:16] Speaker 03:
And I think it's, it's interesting actually to note.

[00:06:18] Speaker 03:
So you add 80 to the, to the bill, to the bill that was submitted.

[00:06:21] Speaker 03:
80 was added to that same procedure code, which is the exact same procedure code that was provided by the primary surgeon.

[00:06:28] Speaker 03:
So they, they know same, the two, two dot two physicians.

[00:06:32] Speaker 03:
did the surgery together, they added that modifier so they know this was assisting.

[00:06:35] Speaker 03:
Yes.

[00:06:36] Speaker 02:
So if we agree with, if we were to agree with you on the assistant surgeon, then I'm trying to think of how that affects attorney's fees because, you know, I think their argument is, well, we mostly won, you mostly lost because, but that kind of goes off the table if you lump the surgeon in there and then the assistant surgeon in there.

[00:06:59] Speaker 02:
So I had an interesting,

[00:07:01] Speaker 02:
Lodestar method.

[00:07:02] Speaker 02:
The Lodestar method, it's always the same.

[00:07:07] Speaker 02:
It seems like, I don't know why it's even called Lodestar, but you basically submit a bill and then the district court or the court appeals or both trim some off of it because they say there's too much fat.

[00:07:21] Speaker 02:
Does but can the look have your are you aware of any case where the load star actually goes up because of like bad behavior by the defendants or or You know, I suppose that because this is an important case for the cause to where to where a court could actually say, you know you you build 150,000 but we're gonna give you 175 because it's a real because it because you know, you know, it always goes the other way it seems like but there are some cases that indicate that you could do that, but it seems like the

[00:07:49] Speaker 03:
vast majority of the recent case law in the Ninth Circuit has been that that's all built into the cake of everything.

[00:07:54] Speaker 03:
And that's so there's no there's no real model.

[00:07:56] Speaker 03:
There's no additional amount.

[00:07:57] Speaker 03:
There's some there's some there's some case that talks about if you're on contingency that maybe you could seek additional fees because you're on contingency.

[00:08:02] Speaker 03:
And so there's no there's no certainty in that.

[00:08:05] Speaker 03:
But then I think recent case law said that that's

[00:08:07] Speaker 03:
you're not going to be able to get that type of modifier.

[00:08:10] Speaker 03:
But I haven't briefed on that issue, and I don't want to speak at a turn on it.

[00:08:14] Speaker 02:
But that would be something that the district court would decide on remand, not us anyway, right?

[00:08:19] Speaker 02:
I think that's right.

[00:08:20] Speaker 02:
It would be abuse of discretion on review, so why would we decide something like that?

[00:08:23] Speaker 03:
I think that's right.

[00:08:24] Speaker 03:
And I think what the court is saying is absolutely right.

[00:08:26] Speaker 03:
At minimum, I think if the court is not inclined to reverse or at least vacate and remand with respect to the attorney's fees provisioned also, I think that

[00:08:37] Speaker 03:
because everything has been changed now that the assistant surgeon claim has, if the court were to say that the assistant surgeon claim should be processed, remanded to the plan and then perhaps reprocessed and paid in the same fashion that the primary surgeon claim was, then that would change the entire analysis as it pertains to the fees.

[00:08:56] Speaker 03:
And so probably everything would have to start all over again.

[00:09:00] Speaker 01:
But the invoices would have remained the same, right?

[00:09:03] Speaker 01:
The invoices remain the same.

[00:09:04] Speaker 03:
The invoices have remained the same.

[00:09:05] Speaker 03:
Uh, from the beginning and I, and I apologize.

[00:09:08] Speaker 04:
You did, you did make minor modifications as to the, but not to the time, right?

[00:09:13] Speaker 03:
Never to the time only to the only, only to the description to indicate going from a drafting brief to perhaps research related relating to the drafting of the brief.

[00:09:24] Speaker 03:
Um, and I apologize to, and I would apologize.

[00:09:26] Speaker 03:
I purposely asked for reconsideration of the district court and gave him everything.

[00:09:31] Speaker 03:
so that he could see everything that we did.

[00:09:33] Speaker 03:
And so there would be no confusion, no question about it.

[00:09:37] Speaker 01:
That was on your third try.

[00:09:39] Speaker 01:
Yes.

[00:09:39] Speaker 01:
The first time you submitted the invoices, all the entries were redacted.

[00:09:43] Speaker 01:
Yes.

[00:09:43] Speaker 01:
So how is a judge supposed to figure out what to award?

[00:09:46] Speaker 03:
I completely understand, Your Honor.

[00:09:48] Speaker 03:
And the reason why we redacted is this is I've had a number of cases with my friends on the other side and

[00:09:56] Speaker 03:
This was, that was one of my first times submitting a motion for fees.

[00:10:00] Speaker 03:
And I actually was copying some of the, the way that they provided their time sheets and they were always fully redacted.

[00:10:08] Speaker 04:
And so I, how's the court supposed to figure out whether the fee is correct?

[00:10:13] Speaker 04:
And we have no idea what it was.

[00:10:14] Speaker 03:
It was a mistake on my part.

[00:10:16] Speaker 04:
It's just 5.7 hours at $650 an hour.

[00:10:18] Speaker 03:
It was in my, it was my, and then the math was wrong.

[00:10:22] Speaker 03:
I, I, I, that's why we moved it to an Excel spreadsheet.

[00:10:26] Speaker 03:
so that there would be that you could just press the button that just says the computer will do it for us.

[00:10:31] Speaker 03:
The computer will resolve the issue and it won't be a person trying to do math.

[00:10:35] Speaker 01:
Let me ask you this, if the court had then just denied your request for attorney's fees then and there with prejudice, would there be an abuse of discretion?

[00:10:44] Speaker 03:
If the court had denied relating to the redactions?

[00:10:49] Speaker 03:
Right.

[00:10:50] Speaker 03:
And the math errors.

[00:10:52] Speaker 03:
I think still yes, based off of all the case law, which indicates that if you are the prevailing party under the Hummel analysis, that you're supposed to, you're supposed to, you really have to, it seems to me from that, that there are all the cases, there's no cases, there are none, my friends on their side don't cite to any cases that indicate we're an ERISA plaintiff.

[00:11:14] Speaker 03:
prevails or has some success on the merits under Hummel that they should get nothing.

[00:11:20] Speaker 03:
I don't think there's any cases.

[00:11:21] Speaker 04:
I don't think I've ever seen a case where all of the time entries were redacted.

[00:11:26] Speaker 04:
I mean, I don't know what a district judge would do with a attorney's fee motion that doesn't tell you anything other than numbers.

[00:11:37] Speaker 03:
I understand, Your Honor.

[00:11:38] Speaker 04:
was not it was not so you don't think that would be do you think that would still be an abuse of discretion if the court denied fees altogether based on the lack of adequate documentation I think it was a mistake on my part and I appreciate the court giving me a second opportunity to file the brief to file it to provide a unredacted version but then then his concern was what you've changed the wording of the entries so now I have a credibility problem I don't know what

[00:12:07] Speaker 03:
But you also had, at the same time, you also had a copy of defense counsel's time sheets as well.

[00:12:12] Speaker 03:
So you can see that our time matches up significantly.

[00:12:16] Speaker 03:
and that everything goes in lockstep.

[00:12:19] Speaker 03:
And so I think that even if there were some level of a credibility problem, I think that certainly brings our credibility back into focus.

[00:12:28] Speaker 03:
Our bill is reasonably similar to what their bill was.

[00:12:31] Speaker 03:
Exactly.

[00:12:32] Speaker 03:
And so then under all the case law, he could have given me a significant haircut.

[00:12:36] Speaker 03:
He could have taken off 30%, 40%.

[00:12:38] Speaker 03:
I think in that case, Your Honor, I think there would be no question that there would be really no basis for appeal.

[00:12:45] Speaker 04:
uh... i think you want oh yeah i've got a procedural question for you why did you not move the district court for an order to compel production of the full administrator record if you didn't think that united was giving you everything that was in their files we had a bit we get uh... it was a very short timeline on things uh... the timeline in in uh... judge clausner's cases are very short

[00:13:10] Speaker 03:
I was just trying to work my way through a 1,600 page administrative record, and I was trying very, very vigorously, and I think you see that in some of the documents, to try and get the UCR data.

[00:13:20] Speaker 03:
And that was a huge issue before the district court.

[00:13:23] Speaker 04:
I had to, I had to, which had to exist, right?

[00:13:26] Speaker 04:
Because how can they compute a UCR exactly know what the usual and customary rate is for exactly.

[00:13:33] Speaker 03:
But they were also taking the position.

[00:13:34] Speaker 03:
And you see this throughout their briefing that they had actually considered it by sending it to, to multi-plan.

[00:13:40] Speaker 03:
And it was not even temporally possible for them to have actually done that.

[00:13:44] Speaker 03:
So,

[00:13:45] Speaker 04:
That was what it seems to me, if you'd follow the motion, it would have been a slam dunk win in front of, well, maybe not in front of Judge Clauser, but I mean, he's good.

[00:13:54] Speaker 04:
He's a good judge.

[00:13:55] Speaker 03:
He's a very good judge.

[00:13:56] Speaker 03:
I just think that it's the time, the time constraints and the fact that I was, I was very focused on the primary surgeon.

[00:14:03] Speaker 03:
Which is the larger claim.

[00:14:04] Speaker 04:
I mean, there's only larger by a thousand dollars and one sixty thousand and one fifty nine.

[00:14:08] Speaker 03:
Yes.

[00:14:09] Speaker 03:
But in terms of what the plan will ultimately pay, it's going to be at least four factors bigger.

[00:14:15] Speaker 03:
If you were to look at, for example, I say to the M surge care case, you'll see that very often.

[00:14:19] Speaker 03:
What they do for assistant claims is they pay 16%.

[00:14:21] Speaker 03:
16 16% from based on medic money at 16%.

[00:14:25] Speaker 03:
Well, it's 16% of the primary claim.

[00:14:28] Speaker 03:
So the primary claim might be perhaps $40,000 as it was here.

[00:14:31] Speaker 03:
And then 16% of that would be like $7,000.

[00:14:34] Speaker 03:
So the prime, my, my main focus of course was towards the primary claim because I want to make sure when you're dealing with those types of things, you want to get that.

[00:14:44] Speaker 03:
And it wasn't easy to show in time how

[00:14:47] Speaker 02:
They did not consider the ucr and your seven thousand dollars doesn't seem Worth taking a federal appeal, but your your repeat.

[00:14:54] Speaker 02:
I think I had one of your I had one of your cases The last sitting out was on or something like that.

[00:14:58] Speaker 03:
Yes, sir.

[00:14:59] Speaker 02:
Yes, your honor where united was misbehaving and so what It is I assume that you're doing this not for the seven thousand dollars, but you're trying to get

[00:15:10] Speaker 02:
some sort of favorable to get united to engage with you more on these cases?

[00:15:13] Speaker 02:
Yes, Your Honor.

[00:15:15] Speaker 02:
OK.

[00:15:15] Speaker 02:
So that's what you're spending money.

[00:15:16] Speaker 02:
OK.

[00:15:18] Speaker 02:
We'll hear from the other side.

[00:15:25] Speaker 00:
May it please the court, Amanda Genovese of Seyfarth Shaw on behalf of Appellees UnitedHealthcare and Insperity Holdings.

[00:15:32] Speaker 00:
I want to react to a whole bunch of different things that just occurred.

[00:15:36] Speaker 00:
We're dealing with an ERISA benefits dispute.

[00:15:39] Speaker 00:
We were dealing with two separate providers that build separately under their corporate identities, appealed separately, received documentation separately, and that's critical.

[00:15:50] Speaker 00:
When we were talking about the administrative record in this case, I think, candidly, I think everyone's been imprecise because there was one administrative record for this case, but really there's two administrative records here.

[00:16:04] Speaker 00:
One for MSURGE care, which is the primary.

[00:16:06] Speaker 04:
So did you provide all of the documents that were in the administrative record for the assistant surgeon claim?

[00:16:13] Speaker 04:
Yes, we did, your honor.

[00:16:14] Speaker 04:
Did it include the UCR documentation?

[00:16:17] Speaker 00:
That was not in dispute.

[00:16:20] Speaker 00:
That's for the MSURGE claim.

[00:16:22] Speaker 00:
The emergency surgical assistant claim was denied because there wasn't proper documentation to substantiate the emergency billing of CPT code 43774, which is for- That's what you say, but what you said in the denial was that the services billed were not documented as performed.

[00:16:42] Speaker 02:
Is that right?

[00:16:44] Speaker 00:
So I think we have to go back to the first correspondence of June 18th, 2020, where United wrote ESA in particular, and I'm going to refer to Emergency Surgical Assistance as ESA, noting that, and this was after receipt of the claim that it's submitted,

[00:17:01] Speaker 00:
It needed more information before it could process the assistant claim, and then asked for, quote, all of the treatment records for every date of service on that claim to determine eligible expenses.

[00:17:13] Speaker 00:
That is consistent with the remittance advice that was sent that noted that United asked for additional documentation.

[00:17:20] Speaker 00:
It referred ESA to its previous letter requesting that additional documentation.

[00:17:26] Speaker 00:
And then subsequent correspondence on appeal

[00:17:29] Speaker 00:
kept pointing back to the point that we needed medical records to substantiate the emergency billing.

[00:17:34] Speaker 00:
And this is important.

[00:17:35] Speaker 00:
I really want to make sure the court understands.

[00:17:38] Speaker 00:
This is an arisa benefits dispute.

[00:17:40] Speaker 00:
The plan here is the guiding light.

[00:17:43] Speaker 02:
Okay.

[00:17:43] Speaker 02:
And you did not provide the plan.

[00:17:45] Speaker 02:
Um, well, did you not, you didn't provide the plan.

[00:17:48] Speaker 02:
I mean, the lower court concluded that you did not provide the plan.

[00:17:51] Speaker 02:
And, and then, so I, it's funny because you say that here and you said that in your brief, you know, the plan, you keep pointing the plan.

[00:17:59] Speaker 02:
But the lower court said he didn't provide the plan, but it's not a big deal.

[00:18:02] Speaker 02:
But there seems to be some tension between that.

[00:18:05] Speaker 02:
The lower court concludes that that's not a big deal.

[00:18:07] Speaker 02:
I'm not going to award any damages for that.

[00:18:09] Speaker 02:
And your statement in your brief and your statement this morning that, no, the plan is the big thing here.

[00:18:17] Speaker 02:
Well, if they don't have the plan, how can they?

[00:18:21] Speaker 00:
Two responses, the requests that were made to United specifically, United is the claims administrator.

[00:18:28] Speaker 00:
It's not the plan administrator.

[00:18:30] Speaker 00:
The regulation that they're pointing to for statutory penalties, which is discretionary, is the obligation of the plan administrator to provide that documentation.

[00:18:40] Speaker 04:
You had a copy of the plan, right?

[00:18:42] Speaker 00:
Correct, Your Honor.

[00:18:43] Speaker 04:
So why couldn't you provide a copy of it upon request to the claimant?

[00:18:48] Speaker 00:
That's not an obligation under ERISA for a claims administrator to provide a plan in that context.

[00:18:54] Speaker 00:
But I think we're also missing the point here.

[00:18:57] Speaker 00:
If you're an assistant surgeon,

[00:18:59] Speaker 00:
and you're billing for emergency services.

[00:19:01] Speaker 00:
Again, I want to point out emergency services, because the services that were billed under CPT code 43774, if we were to just isolate that code, that is for a lap band removal.

[00:19:13] Speaker 00:
There is an express exclusion in the plan for bariatric and obesity surgeries.

[00:19:19] Speaker 04:
The only way they get- That is if you're going in, you want a lap band install because you want weight loss.

[00:19:24] Speaker 00:
Yes, correct.

[00:19:25] Speaker 04:
The problem here was we had an infected

[00:19:27] Speaker 04:
banned from a prior installation.

[00:19:30] Speaker 04:
And your client apparently took the position that this was not an emergency.

[00:19:37] Speaker 00:
Because there wasn't documentation submitted by emergency surgical associates.

[00:19:42] Speaker 04:
So the initial treatment notes in the emergency room by the assistant surgeon were not supplied in connection with his claim for services?

[00:19:51] Speaker 00:
That is correct.

[00:19:52] Speaker 04:
Were they supplied in connection with the documentation for the primary surgeon?

[00:19:57] Speaker 00:
That is a separate claim that was built.

[00:19:59] Speaker 04:
But you had both files.

[00:20:01] Speaker 04:
You should be able to answer that question.

[00:20:03] Speaker 00:
Your honor, that is not an obligation.

[00:20:04] Speaker 04:
I don't have to look at any other file.

[00:20:07] Speaker 04:
Is that the position you're taking, even though it's in my possession?

[00:20:10] Speaker 00:
Correct, your honor.

[00:20:12] Speaker 01:
Where in the plan document does it say that these separate filings need to be made with respect to the documentation?

[00:20:20] Speaker 01:
It's one claimant, one surgery.

[00:20:24] Speaker 01:
And you have documentation, and I don't think you're disputing this.

[00:20:27] Speaker 01:
You had documentation in your possession that Dr. Feisbach and Dr. Rim both performed the surgery, right?

[00:20:38] Speaker 00:
Your Honor, you're saying that there's one claimant, but that's actually not the case.

[00:20:42] Speaker 00:
Here, two separate providers build.

[00:20:45] Speaker 00:
They build under their separate tax identification numbers.

[00:20:48] Speaker 00:
Two separate claims are generated.

[00:20:49] Speaker 04:
The same adjuster on both files.

[00:20:52] Speaker 00:
Your honor, that's not clear if we have the same adjuster on both.

[00:20:56] Speaker 04:
No, your honor, the claim.

[00:20:58] Speaker 00:
Well, your honor, these claims are submitted and in many instances there could be an auto adjudication or there could be a computer.

[00:21:07] Speaker 00:
No, your honor.

[00:21:08] Speaker 00:
That's not what I'm saying.

[00:21:09] Speaker 04:
What are you saying?

[00:21:10] Speaker 00:
I'm saying that this case could have actually been brought as two separate disputes, one by I'm search care.

[00:21:16] Speaker 02:
We understand your art because because this is the same argument in your brief.

[00:21:19] Speaker 02:
I understand it.

[00:21:20] Speaker 02:
I understand it.

[00:21:22] Speaker 02:
And we're all we're all judges lawyers.

[00:21:26] Speaker 02:
We understand the you got to follow the rules and that's basically your argument is But in the in the Kaczynski case that I'm forgetting the name of again I mean the I thought there was a very kick case with the horse kick.

[00:21:39] Speaker 02:
It wasn't Yeah, the horse kick the dentist.

[00:21:41] Speaker 02:
Yeah, that's right the horse kid in that case.

[00:21:44] Speaker 02:
I thought it made a good point that you It's very similar.

[00:21:48] Speaker 02:
It seems like to this case and that you say well, you know you

[00:21:51] Speaker 02:
didn't do this, didn't do this, but there is a, it does appear as if the claimants here are trying to find out what is it more you need.

[00:22:00] Speaker 02:
Because, I mean, sitting here, we know that the assistant surgeon was involved in this surgery.

[00:22:06] Speaker 02:
And so whatever the rationale, and we also know that it was an emergency surgery.

[00:22:10] Speaker 02:
I don't know that you're disputing that.

[00:22:12] Speaker 02:
So what, so you're basically saying, well, we denied it on a technicality and we were right to deny it on a technicality.

[00:22:16] Speaker 02:
The problem with that,

[00:22:18] Speaker 02:
not because it merited denial, but because of, you know, we were right on the technical.

[00:22:22] Speaker 02:
The problem with that is it does seem like there's some obligation for you to dialogue and good faith.

[00:22:28] Speaker 02:
And it's really hard for me to see how I've looked at all of the briefing that you supplied on the end and the back and forth.

[00:22:36] Speaker 02:
And it just feels like they're literally getting the same answer.

[00:22:39] Speaker 02:
They're like, what, what do you want from us?

[00:22:40] Speaker 02:
What do you want?

[00:22:40] Speaker 02:
And they're just getting the services bill were not documented as performed.

[00:22:45] Speaker 00:
If you're referring to Bhutan, I mean, in that case, the initial correspondence that was sent there basically addressed or suggested that certain types of coverage wasn't available, which was just fundamentally wrong, which didn't allow for that open communication back and forth.

[00:23:03] Speaker 00:
Here, there was no inconsistency in our communication for emergency surgical assistance.

[00:23:08] Speaker 02:
Didn't you initially deny, at least, didn't you initially deny because you said it wasn't emergency surgery?

[00:23:15] Speaker 00:
Uh, no, you're referring to m surge care here.

[00:23:17] Speaker 00:
We denied for lack of documentation.

[00:23:19] Speaker 02:
Well, how are they supposed to know, you know, from their perspective, how they supposed to know services bill were not documents reform, whether it's because you don't think it's, you know, because they, because a reasonable person would be like, well, that's what they denied the other one for.

[00:23:31] Speaker 02:
So that's probably why I don't know why they're saying that.

[00:23:34] Speaker 02:
I thought we crossed that bridge already.

[00:23:35] Speaker 02:
I again, if there was some sort of dialogue, uh, you would have just paid out the $7,000 and we wouldn't be here.

[00:23:43] Speaker 02:
It seems like, but, but,

[00:23:45] Speaker 02:
You don't think you had any obligation to try to figure out?

[00:23:49] Speaker 02:
No.

[00:23:50] Speaker 00:
No, and the reason for that is, think about this.

[00:23:53] Speaker 02:
So you need some help.

[00:23:55] Speaker 02:
That sounds to me like United needs some help to realize they have that obligation.

[00:24:00] Speaker 00:
Your Honor, these were separate claims submitted by separate providers.

[00:24:05] Speaker 00:
You have to think about them in a silo.

[00:24:07] Speaker 01:
Where in your, I guess going back to my original question, where in the plan allows you to rely on that technicality to deny Ms.

[00:24:18] Speaker 01:
Campbell's claim?

[00:24:20] Speaker 01:
That she needs to submit separate documentation even though there was one surgery that was performed.

[00:24:25] Speaker 01:
And one insured.

[00:24:26] Speaker 00:
That's a decision by the providers to bill.

[00:24:28] Speaker 00:
These are out of network providers and they made the decision to bill separately.

[00:24:32] Speaker 00:
Right.

[00:24:32] Speaker 00:
They're billing under their own corporate identities and surge care versus ESA.

[00:24:37] Speaker 00:
They're submitting separate claim forms.

[00:24:40] Speaker 00:
Right.

[00:24:41] Speaker 02:
And they're so just to answer.

[00:24:43] Speaker 00:
Yes.

[00:24:43] Speaker 02:
The plan does not require does not require I think.

[00:24:46] Speaker 02:
Judge Tong has asked this question several times, where the plan is required, and I haven't heard you say where it does.

[00:24:50] Speaker 00:
That is basic claims adjudication under ARISA.

[00:24:52] Speaker 00:
There's no obligation for a claims administrator to go out and search records that are not before them related to adjudicating the specific claim that was submitted.

[00:25:03] Speaker 04:
So your position would be if this insured had been seen by five different specialists, you would expect five separate claims to be submitted.

[00:25:15] Speaker 04:
on behalf of each of the doctors who treated her.

[00:25:20] Speaker 00:
That would be accurate if those providers were billing separately, which is different from a facility claim.

[00:25:25] Speaker 04:
And your position is that the insurer is under no obligation to look at the documentation in any of the related claims treating this insured for the same medical condition.

[00:25:39] Speaker 00:
That's correct.

[00:25:39] Speaker 00:
It would be untenable.

[00:25:41] Speaker 00:
untenable.

[00:25:42] Speaker 00:
It would be a wild goose chase to try to, it's the obligate.

[00:25:46] Speaker 04:
A wild goose chase when you're looking at documentation from the same medical emergency by one patient?

[00:25:53] Speaker 00:
Claims could be submitted at different periods of time.

[00:25:57] Speaker 00:
Claims are submitted under different.

[00:25:58] Speaker 04:
It seems like you're taking the ostrich with its head in the sand approach.

[00:26:02] Speaker 04:
You've got two different files, but I only have to look at the one file for the assistant surgeon.

[00:26:07] Speaker 04:
And regardless of what I know,

[00:26:09] Speaker 04:
for the primary surgeon, I won't look at that documentation, which clearly shows that there were two surgeons.

[00:26:19] Speaker 00:
Well, again, Your Honor, it's the obligation of the provider to substantiate that they rendered the services for which they're seeking reimbursement for.

[00:26:29] Speaker 02:
But you recognize, you would agree that you have an obligation to

[00:26:33] Speaker 02:
to clearly tell them what they're missing if they're missing something that they need to provide.

[00:26:40] Speaker 02:
Your client has an obligation to tell them clearly what they're missing.

[00:26:45] Speaker 00:
I would say to tell them what the denial reason is and what would be missing.

[00:26:49] Speaker 00:
And here we did.

[00:26:50] Speaker 00:
Not once, not twice, but five times.

[00:26:52] Speaker 02:
You kept telling them the same thing over and over again that I can't tell from that statement what that necessarily means.

[00:26:58] Speaker 02:
And they kept saying to you, well,

[00:27:02] Speaker 02:
you know, what do you need?

[00:27:04] Speaker 02:
And they would just get the same auto answer back.

[00:27:07] Speaker 00:
Your honor, I would say that that's not what the appeal letter argues.

[00:27:11] Speaker 00:
They didn't inquire about what was specifically needed to substantiate the records.

[00:27:16] Speaker 00:
That's not what's in their appeal records.

[00:27:18] Speaker 00:
What they say is that the services were medically necessary.

[00:27:22] Speaker 00:
It's a standard form.

[00:27:23] Speaker 00:
If you look, all the appeal letters look exactly the same.

[00:27:26] Speaker 00:
They weren't asking that specific question.

[00:27:28] Speaker 00:
We engaged in the adequate dialogue.

[00:27:31] Speaker 00:
I also think we're moving kind of away from general ERISA principles.

[00:27:35] Speaker 00:
And here, the district court looked at the information before it, made a determination under the abusive discretion standard of review that United's determinations as to ESA were reasonable.

[00:27:49] Speaker 01:
Counsel, your friend on the other side made the statement that

[00:27:53] Speaker 01:
At the district court level, for the very first time, it was the district court, Sue Esponte, who pointed out after reading the documentation that the denial was based on a lack of documentation as to the assistant surgeon.

[00:28:11] Speaker 01:
Was it raised for the first time, that basis for denial, at the district court level?

[00:28:15] Speaker 00:
It was raised multiple times in our opening brief, in our opposition brief, in our statement of facts.

[00:28:20] Speaker 01:
But prior to that, in the administrative record, though, there was no clear statement that you were denying Dr. Rim's claim, just to borrow your terminology, on the basis that he himself lacked medical documentation.

[00:28:33] Speaker 00:
It was raised no less than four times.

[00:28:35] Speaker 01:
Where?

[00:28:36] Speaker 00:
It was raised in an August 18, 2020 letter sent to Dr. Rim.

[00:28:42] Speaker 00:
It was raised in the PRA, which specifically said that the claim was denied for lack... How was it raised in that first letter?

[00:28:47] Speaker 02:
What did it say?

[00:28:49] Speaker 00:
In the we need more information to process the assistant surgeon claim and we ask for all treatment records for every day to service on that claim.

[00:28:59] Speaker 01:
That's when you have an ER site for that.

[00:29:02] Speaker 00:
Yes, your honor.

[00:29:03] Speaker 00:
I would refer to ER 1119.

[00:29:06] Speaker 00:
Actually was raised prior to that, your honor, too.

[00:29:13] Speaker 00:
If you give me a second here.

[00:29:16] Speaker 00:
Also, ER 1206.

[00:29:21] Speaker 00:
And then I would also direct the court to ER 1278, which is the appeal that was sent to United only, again, not to InSparity, which references Blue Cross, not at issue here, and says that it was an emergency surgery but then fails to substantiate with those records that were requested.

[00:29:39] Speaker 00:
all the way back in July and then explicitly referenced in the PRA that the claim was denied for lack of documentation.

[00:29:47] Speaker 01:
Counsel, I'm looking at ER 1278 that you just referenced.

[00:29:51] Speaker 01:
That's a letter, I think, from Dr. Sean Rim, right?

[00:29:55] Speaker 01:
It's not an appeal denial?

[00:29:58] Speaker 00:
I was referring to that last one as being the appeal letter that Dr. Rim sent in and what was being argued in that appeal letter.

[00:30:05] Speaker 00:
And there, again, no records were submitted to substantiate.

[00:30:09] Speaker 04:
Did anybody ever say to doctor and look, we need a report from you as to what you did.

[00:30:14] Speaker 00:
Yes, we said that we said that explicitly.

[00:30:17] Speaker 00:
At one zero six again, this is a June, twenty eight, twenty, twenty.

[00:30:30] Speaker 00:
Dear Sean Rim, we received the above claim for Lee Campbell.

[00:30:34] Speaker 00:
Before we can process this claim, we need more information.

[00:30:38] Speaker 00:
Please send all of the treatment records for every date of service on the claim.

[00:30:42] Speaker 00:
These records should include but may not be limited to the first date of service reference above.

[00:30:46] Speaker 00:
And then it says, please provide the following information, a copy of this letter, patient treatment records, and a whole bunch of criteria underneath it.

[00:30:53] Speaker 00:
Subsequent to that, in the Provider Remittance Advice, which details the denial reasons, it stated that the claim was denied for lack of documentation.

[00:31:03] Speaker 00:
If I may, Your Honor, I also want to address the statement, unless the Court has any additional questions as it relates to the ESA claim.

[00:31:14] Speaker 02:
We're kind of out of time, but what were you wanting to address?

[00:31:16] Speaker 02:
You may have your rest on your briefs.

[00:31:17] Speaker 00:
Yeah, no.

[00:31:18] Speaker 00:
So I think the other main thing is

[00:31:22] Speaker 00:
I think we're playing a little bit light with the fact that plaintiffs submitted altered unreliable records on three separate occasions.

[00:31:30] Speaker 00:
In the renewed motion for attorney's fees, Judge Klausner, in a footnote, also noted additional issues that he found, and I'll quote his words here, troubling associated with the billing records that were submitted.

[00:31:46] Speaker 00:
What I would say is, humble factors aside, there's still the burden to demonstrate reliable, contemporaneous billing records for purposes of the lodestar analysis.

[00:31:58] Speaker 00:
Judge Clauser did not abuse his discretion in denying those discretionary awards under ERISA.

[00:32:05] Speaker 00:
So we submit that there's no basis for the court to overturn that decision denying attorney's fees here for appellant.

[00:32:12] Speaker 01:
Do you have a case, though, that has affirmed a district court's denial of fees entirely when it's clear that there was some work performed by the attorney?

[00:32:25] Speaker 00:
Yes, there has been.

[00:32:26] Speaker 00:
For example, I would direct the court to Barboza.

[00:32:30] Speaker 00:
Actually, let me just apologize to the court on that one.

[00:32:40] Speaker 00:
There's been several cases that we cited in our briefing, Your Honor, where just on the basis alone of not providing reliable contemporaneous billing records, fees have been denied.

[00:32:52] Speaker 00:
That is the last part of the- In the ERISA context?

[00:32:56] Speaker 00:
Not in the ERISA context, no, Your Honor.

[00:32:58] Speaker 00:
But I'd also like to say that if you look at Judge Klausener's order, Judge Klausener acknowledged that the Hummel Factor analysis was not a tough hurdle to overcome.

[00:33:09] Speaker 00:
And also when it denied with prejudice defendants award for attorneys fees, it said that any sort of success would likely be offset by the success of defendant.

[00:33:19] Speaker 00:
In other words, the load star analysis would be would be down and probably end up at net zero.

[00:33:25] Speaker 00:
Thank you.

[00:33:26] Speaker 02:
Any other questions for my client?

[00:33:27] Speaker 02:
Thank you, counsel.

[00:33:29] Speaker 02:
I'm kind of a hot bench.

[00:33:29] Speaker 02:
Appreciate your argument.

[00:33:31] Speaker 02:
We'll hear rebuttal from balance.

[00:33:36] Speaker 03:
OK, just wanted to point to a few

[00:33:38] Speaker 03:
quick things.

[00:33:41] Speaker 03:
It's ironic that my friends on the other side would say that the record is limited by each particular physician, when in numerous cases, and I think we even reference a couple of them, I think the Solis case is one of the cases we reference, where they were able to get documents into the administrative record that

[00:34:07] Speaker 03:
were never provided to the insured.

[00:34:10] Speaker 03:
And they were pure policy documents that existed somewhere in United's ether.

[00:34:17] Speaker 03:
And they were able to just pull them out and include them as part of the administrative record.

[00:34:22] Speaker 03:
And the basis for that was that all documents that are in United's possession, in their possession, based on Montour and Kearney, that they would be able to reference those documents.

[00:34:36] Speaker 03:
This is a little bit even closer to the closer here because we're dealing with the same insured.

[00:34:41] Speaker 04:
Well, I didn't hear counsel say we didn't have them.

[00:34:45] Speaker 04:
Therefore, we couldn't produce them.

[00:34:48] Speaker 03:
Right.

[00:34:48] Speaker 03:
So I'm saying what I'm saying is that the standard, I think the Ninth Circuit puts forth is that it's in their possession.

[00:34:55] Speaker 03:
If the if the if the plan has it in their possession, they have to consider it.

[00:35:00] Speaker 02:
That's what you understand.

[00:35:02] Speaker 02:
You're saying you're saying at least they've taken the position before that if it's in our possession, we can

[00:35:07] Speaker 02:
We can bring them into the record.

[00:35:08] Speaker 02:
Absolutely.

[00:35:09] Speaker 02:
But in this instance, it was clearly in their possession.

[00:35:12] Speaker 02:
Yes.

[00:35:12] Speaker 02:
But they're saying we had no obligation to look at that.

[00:35:15] Speaker 02:
Correct.

[00:35:16] Speaker 02:
What about their, I think I understand you're right about that.

[00:35:19] Speaker 02:
What about their position that we did specifically tell you we need the, for the assistant, we need the treatment records?

[00:35:29] Speaker 03:
So what's interesting is is that my friend on the other side doesn't even respond to what their argument was to the district court.

[00:35:37] Speaker 03:
Their argument to the district court, and I read it to the court here, was that the procedure was not an emergency.

[00:35:43] Speaker 03:
They never argued that we didn't have documents.

[00:35:45] Speaker 03:
They didn't ever argue that we didn't have documents as pertained to Dr. Rims, certainly.

[00:35:48] Speaker 02:
So I understand that, but that is what the district court relied on, because he recognized that that was a better argument for them than the one they were making.

[00:35:59] Speaker 02:
And now they're going back and saying, yeah, and that's supported by these documents that were in the record.

[00:36:04] Speaker 02:
Is that correct or not?

[00:36:06] Speaker 03:
They're saying that there are no documents in the record, which is actually plainly not.

[00:36:09] Speaker 03:
They're saying that these letters are in the record.

[00:36:12] Speaker 03:
Well, they're saying that Dr. Rim himself

[00:36:16] Speaker 03:
that the new argument that they've created for the purposes of the appeal, and after Judge Klausner came up with that argument for them, they're saying that there were never any medical records submitted by Dr. Rim that would support... For example, one of the ER sites that counsel provided to us, ER-1106, it's a letter addressed to Dr. Rim.

[00:36:37] Speaker 03:
Yes.

[00:36:38] Speaker 01:
saying we need more information.

[00:36:40] Speaker 01:
Please send all the treatment records for every date of service on the claim.

[00:36:43] Speaker 01:
And it lists, it bullet points the information that it requests.

[00:36:46] Speaker 03:
I will concede that the administrative record may indicate that Dr. Rim should have sent documents, and he did.

[00:36:54] Speaker 03:
And there's proof of that in the administrative record that he sent those records.

[00:36:57] Speaker 04:
We reference it at... Did he send a copy of the primary surgeon's post procedure note?

[00:37:06] Speaker 03:
I would contend that yes, he did because they mentioned at, um, I see, but that's not in the record.

[00:37:13] Speaker 02:
You're saying that they didn't, that even though he sent in, you don't have a, you don't have a proof that he sent it in and they don't have it in the record.

[00:37:22] Speaker 03:
Well, they say, they say 60 are 1234 relating to Dr. Rim specifically 60 are 1234 documents can be found in doc 360.

[00:37:32] Speaker 03:
For the medical records and that's really those documents.

[00:37:36] Speaker 03:
We don't know because they never gave them to us They didn't produce them as part of the administrative record So they're trying they're trying to say we don't have it may have provided it you think you You're certain you did provide it.

[00:37:49] Speaker 02:
They're saying you didn't You're the thing you can point to is a statement in the record saying there's some documents, but we don't know statement by them

[00:37:57] Speaker 03:
that they put in their own internal notes saying we have medical records.

[00:38:01] Speaker 01:
Do you have a document in the record of Dr. Sean Rim submitting medical documentation that the surgery was done?

[00:38:08] Speaker 03:
I have what they gave me in terms of the administrative record.

[00:38:13] Speaker 04:
They contend that Dr. Rim... Which does not include a copy of the primary surgeon's procedural notes?

[00:38:20] Speaker 03:
It does.

[00:38:21] Speaker 03:
Of course it does.

[00:38:22] Speaker 03:
Because the administrative record they gave me was the administrative record for Ms.

[00:38:26] Speaker 03:
Campbell.

[00:38:26] Speaker 03:
because that's the way you're supposed to provide it.

[00:38:28] Speaker 03:
It was an administrative record for the entire Miss Campbell case.

[00:38:31] Speaker 03:
And so they gave me both, including both claims, including both claims, which includes the operative report for the operative report, which uses the word we, which uses the word we and the consult note, which was written by Dr. Rim.

[00:38:44] Speaker 03:
Okay.

[00:38:44] Speaker 03:
And so they also acknowledged we had these, they also acknowledged that as it pertains to Dr. Rim, he sent us records.

[00:38:50] Speaker 03:
It says that in their notes, they just didn't produce those to us separately.

[00:38:54] Speaker 03:
in the overall administrative record that they gave us.

[00:38:58] Speaker 03:
Does that make sense?

[00:39:00] Speaker 03:
Yeah, sort of.

[00:39:01] Speaker 03:
I'm saying, in the administrative record, there are documents showing that Dr. Rim did the procedure.

[00:39:05] Speaker 04:
It seemed to be taking the position that the only obligation they had was to produce the administrative records relating to the claim number assigned to Dr. Rim.

[00:39:15] Speaker 03:
Right.

[00:39:15] Speaker 03:
So that's contrary to the Ninth Circuit authority, and it's contrary to positions that they've taken in the past, and that's also contrary to

[00:39:22] Speaker 02:
It's also take positions when it would benefit them to expand the record to include other things that aren't necessarily the council.

[00:39:28] Speaker 01:
We need not reach that question, right?

[00:39:30] Speaker 01:
If we if we find that there was a lack of meaningful dialogue.

[00:39:35] Speaker 03:
If the court wants to say that they didn't engage in a meaningful dialogue, it would remand back to the district court to either- Well, they just kept saying the same thing, right?

[00:39:43] Speaker 04:
Using the same phraseology.

[00:39:45] Speaker 02:
They've been doing that in a number, in many cases, which is- So can I, and we've taken you way over, but on the fees, is it all right to jump in?

[00:39:52] Speaker 02:
Yeah, yeah, yeah.

[00:39:53] Speaker 02:
So on the fees, it seems like there could be various issues in this case, but I don't think there are.

[00:39:58] Speaker 02:
And I just want to, there could be the question of whether or not when you sent in a completely redacted attorney, as we've seen, that the math didn't add up.

[00:40:05] Speaker 02:
Could the trial judge have said, done, you lose, you didn't provide?

[00:40:10] Speaker 02:
And assuming, assume for a second that legally he could have done that, that would not have been an abuse of discretion.

[00:40:17] Speaker 02:
But that's not what he did.

[00:40:18] Speaker 02:
So I'm not sure that's in front of us, because that's not actually what we're reviewing.

[00:40:21] Speaker 02:
And then the second question is, so I think even case law about the fact that you should get attorney's fees, this is all kind of irrelevant.

[00:40:30] Speaker 02:
The specific issue in front of us is, I think, if I'm understanding,

[00:40:35] Speaker 02:
Once he said, you know, I'm going to give you fees, but you gave me the wrong thing.

[00:40:40] Speaker 02:
So he overlooked, he was willing to overlook the, um, the, the, your screw up on the, on the fee.

[00:40:47] Speaker 02:
And then when you provided the new one, the, the, the idea that there were, that they didn't match up because you would, I think that was really what he was upset about was that they didn't match up.

[00:40:56] Speaker 02:
Is that what is the case law on?

[00:40:58] Speaker 02:
Are there cases that support that, um, that, that the redactions have or that the,

[00:41:04] Speaker 02:
when you do something like that and you provide something, a new, um, an, uh, an unredacted version that it's understood that it will be the same and not be changed.

[00:41:15] Speaker 02:
I'm trying to figure out like what, what case law governs that particular question.

[00:41:19] Speaker 02:
I seem, first of all, A, is that the question that's in front of us?

[00:41:21] Speaker 03:
I don't think, I don't even think, I think, I think it's important to also consider what the court's actual order was in allowing me to make, to fix my mistake.

[00:41:30] Speaker 03:
The court said, um,

[00:41:34] Speaker 03:
There was no limitation in terms of fixing the language in the way that I did it.

[00:41:40] Speaker 03:
I didn't add any more time.

[00:41:41] Speaker 03:
I made sure not to add any more time.

[00:41:43] Speaker 03:
But in terms of clarifying, the way that I understood, and I argued this to the district court, the way I understood his allowance for me to resubmit was to clarify everything.

[00:41:56] Speaker 03:
So that's what I did.

[00:41:57] Speaker 03:
I wanted to make sure that it was completely understood what everything was.

[00:42:02] Speaker 03:
And the court's order did not mention that I could not add language to explain, OK, well, I drafted a brief.

[00:42:12] Speaker 03:
Can I also indicate that I did research relating to the brief in connection with that?

[00:42:15] Speaker 03:
The court didn't say, don't add any descriptive language.

[00:42:18] Speaker 03:
The court simply said, fix this mess.

[00:42:21] Speaker 02:
So it kind of comes down to whether or not an ordinary lawyer would understand you can't change anything in those.

[00:42:29] Speaker 02:
And that's kind of your argument is that I don't think that

[00:42:32] Speaker 02:
without the judge tell me one way or the other, encompassed within the idea what he was asking to do, it would be allowed to expand the descriptions.

[00:42:46] Speaker 02:
You'd think it was not unreasonable for you to expand them.

[00:42:49] Speaker 02:
I don't think so.

[00:42:50] Speaker 03:
I don't think so also, and I don't think so.

[00:42:53] Speaker 03:
And also, the court indicated, is there any case law?

[00:42:55] Speaker 03:
I think we mentioned in our opening brief

[00:42:57] Speaker 03:
We do cite to some cases where somebody would have, there were attorneys who submitted, I don't have the citations right off hand, but it's in the opening brief.

[00:43:06] Speaker 03:
We didn't talk so much about it in the reply brief, but it's in the opening brief where we discussed there were some cases where an attorney, I think submitted just like notes.

[00:43:15] Speaker 03:
And then, and then the court's like, no, go back, fix that, that's a mess.

[00:43:20] Speaker 03:
And then they resubmitted it again and there was additional language and things in there.

[00:43:24] Speaker 03:
And that was acceptable.

[00:43:26] Speaker 03:
So there is case law that supports that what was done here was not out of scope with what's been acceptable.

[00:43:33] Speaker 01:
Council, it wasn't, as far as I can tell, and I looked at the, did a compare and contrast, you had added some time entries for certain dates in your second submission, right?

[00:43:43] Speaker 01:
And you had deleted some to it.

[00:43:44] Speaker 01:
So it wasn't just mere clarification of pre-existing time entries.

[00:43:49] Speaker 01:
Is that accurate?

[00:43:55] Speaker 03:
I don't believe we did.

[00:44:00] Speaker 03:
If there was one, it might have been to break up something that was a long line into two.

[00:44:10] Speaker 03:
Breaking up a block into two.

[00:44:14] Speaker 03:
But standing here today, they did not point to anything in their briefs that mentioned anything like that.

[00:44:20] Speaker 04:
How did the district court determine that there were

[00:44:24] Speaker 03:
Changes to the wording if the first round contained everything redact They just compete he just compared the the length because I only because I didn't I didn't I didn't redact I didn't just make the entire thing black So that he couldn't see the length of the entry you could see the length of the entry So they compared the length of the entry in the prior submission to the length of the entry later submission

[00:44:49] Speaker 02:
Well, we've taken you way over.

[00:44:50] Speaker 02:
Any other questions?

[00:44:53] Speaker 02:
Your Honor, I apologize.

[00:44:56] Speaker 01:
On the statutory penalties issue.

[00:44:59] Speaker 01:
So can you explain that?

[00:45:01] Speaker 01:
You've asked for the plan.

[00:45:02] Speaker 01:
You've asked for the administrative record.

[00:45:04] Speaker 01:
You weren't given those according to your position.

[00:45:08] Speaker 01:
The statute refers to the administrator.

[00:45:11] Speaker 01:
Administrator has the obligation.

[00:45:13] Speaker 01:
And there's case law, if I recall, that identifies the administrator as the plan administrator.

[00:45:18] Speaker 01:
And United is arguing that it's not the plan administrator.

[00:45:22] Speaker 01:
It's nearly a claims administrator.

[00:45:25] Speaker 01:
Are they a plan administrator?

[00:45:28] Speaker 03:
I didn't conduct any discovery into this issue.

[00:45:31] Speaker 03:
Again, it was a very short timeline.

[00:45:36] Speaker 03:
We argued that in spirit.

[00:45:37] Speaker 03:
In sparity is one of the appellees in the case.

[00:45:40] Speaker 03:
They were they were the defendant.

[00:45:42] Speaker 03:
They were defendant in the case.

[00:45:43] Speaker 03:
I'm not sure based on the case law that United specifically

[00:45:48] Speaker 03:
would have an obligation to, if they failed to provide the documents, if statutory penalties should be assessed against them.

[00:46:01] Speaker 01:
I mean, the plan does say that United shall share responsibility in administering the plan.

[00:46:08] Speaker 01:
And I guess my question is, does that make them a plan administrator for purposes of the statutory penalty provision?

[00:46:14] Speaker 03:
The district court seemed to think so.

[00:46:20] Speaker 03:
I defer to the — in that regard, I guess, I mean, the district court seems to think so.

[00:46:25] Speaker 03:
That's all I can say on the subject.

[00:46:26] Speaker 03:
I don't — it would be my contention, obviously, that they should be responsible, as well as in disparity.

[00:46:32] Speaker 01:
But — And what documents would you be entitled to, assuming that United is a plan administrator?

[00:46:37] Speaker 01:
Yes.

[00:46:38] Speaker 01:
You've asked for the plan.

[00:46:39] Speaker 01:
They have to turn over the plan.

[00:46:40] Speaker 01:
Anything else?

[00:46:41] Speaker 03:
I think beyond the plan, I think the case law from the Ninth Circuit is clear that there's other documents, but none of the documents that we asked for beyond the plan would be those documents.

[00:46:52] Speaker 03:
It would be, I think there's like things relating to, they wouldn't be like the medical records.

[00:47:01] Speaker 03:
They wouldn't be like those things that we, those other things that we asked for.

[00:47:04] Speaker 03:
They would be the, but it would be the plan.

[00:47:06] Speaker 01:
That's a very helpful clarification.

[00:47:08] Speaker 01:
So my next question would be, how do you articulate your prejudice and not having received the plan?

[00:47:14] Speaker 03:
So I think there's a problem with the whole thing with the plan is it's a very interesting point that you're leading me back to something that my friend on their side said, which was she kept referring to the plan, but they didn't even know which, but they didn't even

[00:47:29] Speaker 03:
know which plan they were, they were supposed to be using.

[00:47:31] Speaker 03:
There's the whole thing with the UCR, the whole problem they contend with the UCR and why they didn't even send me the UCR doc, uh, UCR information in the first instance and why they didn't process the claim in the first instance based on the UCR is because they contend that they were relying on a 2021 plan as opposed to a 2020 plan.

[00:47:48] Speaker 03:
I don't think it's fair.

[00:47:49] Speaker 03:
This whole reliance on plan versus which plan they're going to be relying on, especially in light of that.

[00:47:54] Speaker 03:
Um,

[00:47:55] Speaker 02:
If they have provided, at least they would know which plan they were supposed to.

[00:47:59] Speaker 01:
That would have been helpful.

[00:48:00] Speaker 01:
Yes.

[00:48:01] Speaker 01:
Thank you, counsel.

[00:48:02] Speaker 01:
Thank you.

[00:48:04] Speaker 02:
Thank you to both sides.

[00:48:05] Speaker 02:
Again, very took you both well over time.

[00:48:08] Speaker 02:
Thank you.

[00:48:08] Speaker 02:
This case is submitted.