                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 05-2727
ALANNA SCHWARTZ,
                                            Plaintiff-Appellant,
                               v.

THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA,
                                            Defendant-Appellee.
                         ____________
       Appeal from the United States District Court for the
         Northern District of Illinois, Eastern Division.
            No. 04 C 2377—Amy J. St. Eve, Judge.
                         ____________
       ARGUED MAY 3, 2006—DECIDED JUNE 13, 2006
                     ____________


  Before FLAUM, Chief Judge, and EVANS and WILLIAMS,
Circuit Judges.
  EVANS, Circuit Judge. Alanna Schwartz sought long-term
disability benefits under an employee welfare benefit plan
maintained by her former employer, the Chicago law firm
of Sachnoff & Weaver, Ltd. Schwartz, who was a legal
secretary at the firm from 1998 until 2001, filed a claim for
benefits in 2002. Prudential Insurance Company of Amer-
ica, the underwriter of the Sachnoff & Weaver plan, denied
the claim, and Schwartz filed a complaint contesting that
decision in federal court pursuant to the Employee Retire-
ment Income Security Act (ERISA) (29 U.S.C. § 1132 et
2                                                No. 05-2727

seq.). The district court granted summary judgment to
Prudential.
   The only issue requiring our attention is a determina-
tion of the standard of review the district court should have
applied in reviewing Prudential’s decision to deny benefits.
United States District Judge Amy J. St. Eve applied the
arbitrary and capricious standard, a standard Prudential
argues is the right one. Schwartz, on the other hand,
contends that the judge’s review should have been de novo,
i.e., without deference.
   Almost two decades ago, in Firestone Tire & Rubber Co.
v. Bruch, 489 U.S. 101 (1989), the Supreme Court estab-
lished that a denial of benefits is to be reviewed under the
de novo standard unless the plan gives the administrator
(or fiduciary) discretion to determine benefits and to
construe the terms of the plan. If discretion exists, court
review is under the deferential arbitrary and capricious
standard. Firestone did not answer all the questions
litigants could raise, however. It did not establish what
language in a plan is sufficient to confer discretion—a
question we have visited many times. Notably, in
Herzberger v. Standard Insurance Co., 205 F.3d 327, 329
(7th Cir. 2000), we pointed out that many of our cases
refuse to find discretion based on language to the effect that
the plan administrator will pay benefits when satisfactory
proof shows the applicant is entitled to them. But we
indicated that some of our cases “come close” to saying this
language is sufficient to confer discretion. Hoping to put an
end to the confusion, we suggested, but did not require,
plan language which would make clear that the administra-
tor has discretion: “Benefits under this plan will be paid
only if the plan administrator decides in his discretion that
the applicant is entitled to them.” At 331.
  Quite naturally, Herzberger did not put an end to the
confusion either. And, as this case shows, we may be
No. 05-2727                                                      3

forgiven if we despair of ever having the matter settled.
Schwartz’s case ran not quite in tandem with another
case—Diaz v. Prudential Insurance Co. of America; Diaz
involved the same defendant as here and, more impor-
tantly, the same plan language. Both plans say, “We may
request that you send proof of continuing disability, satis-
factory to Prudential, indicating that you are under the
regular care of a doctor.” The district court in Diaz, 2004
WL 1094441 (N.D. Ill. 2004), found the language sufficient
to confer discretion. In the present case, although Judge St.
Eve’s thorough analysis of the claim flirted with de novo
review, she agreed that the plan granted discretion to
Prudential and thus the appropriate standard was arbitrary
and capricious. Then, when Diaz reached us, we disagreed,
saying there was no discretion and review should be de
novo. Diaz v. Prudential Ins. Co. of America, 424 F.3d 635
(2005). Now, despite Diaz, we are being asked to find that
Prudential has discretion—based on the summary plan
description.
  At the risk of being flippant, we might ask what part
of “no” doesn’t Prudential understand? We acknowledge,
though, that perhaps a fairer question, given our cases on
this point,1 is what part of “probably not” doesn’t it under-
stand. We take this opportunity to reaffirm that the


1
  We acknowledge contributing to some of the confusion that
exists regarding the proper standard of review. In Diaz, we wrote,
“Although we did not circulate Herzberger to the full court under
Circuit Rule 40(e) . . . .” 424 F.3d at 639. We made this statement
despite saying in Herzberger:
    We write today to clarify our position and reduce the tension.
    Because we are endeavoring to state a general rule with
    which aspects of some of our decisions may be inconsistent,
    we circulated this opinion in advance of publication to all
    the judges of the court in regular active service, pursuant to
    7th Cir. R. 40(e); none voted to hear the case en banc.
205 F.3d at 330.
4                                                No. 05-2727

language in this plan is not sufficient to confer discretion on
Prudential.
  The language in the summary plan description (SPD),
however, does say that Prudential has discretion in grant-
ing benefits. The SPD and the plan itself, then, are in
conflict. In this situation, which controls? Had Schwartz
relied to her detriment on the SPD, it would have con-
trolled. The situation is otherwise, however, when the SPD,
as here, says the administrator has rights, which the plan
itself does not confer. As we said in Health Cost Controls of
Illinois, Inc. v. Washington, 187 F.3d 703, 711 (7th Cir.
1999):
    When, however, the plan and the summary plan
    description conflict, the former governs, being more
    complete—the original, as it were, which the sum-
    mary plan description excerpts and translates into
    language that may be imprecise because it is designed
    to be intelligible to lay persons—unless the plan partici-
    pant or beneficiary has reasonably relied on the sum-
    mary plan description to his detriment.
After all, ambiguities in insurance policies are con-
strued against the insurer. See, e.g., Ruttenberg v. U.S. Life
Ins. Co., 413 F.3d 652 (7th Cir. 2005).
  In Shaw v. Connecticut General Life Ins. Co., 353 F.3d
1276 (11th Cir. 2003), the Court of Appeals for the Eleventh
Circuit faced precisely the same question as we do: the SPD
granted discretion; the plan did not. The court relied on a
provision in the policy which stated that no change in the
contract would be valid unless it was approved by the
insurance company and evidenced by an endorsement or
amendment to the contract, signed by both the employer
and the insurance company. There was no amendment
(that’s not what the SPD was), so de novo review was
appropriate. Similarly, in Grosz-Salomon v. Paul Revere
Life Ins. Co., 237 F.3d 1154 (9th Cir. 2001), the court held
No. 05-2727                                                 5

that a grant of discretionary authority in the benefit
summary was not valid. First, the policy between the
employer and the insurance company purported to be fully
integrated. Secondly, although there was a provision for
amendment of the contract, changes were required to be
made through riders or amendments, and language confer-
ring discretion did not appear in any such rider or amend-
ment. In contrast, though without much discussion, the
Court of Appeals for the Second Circuit in Murphy v.
International Business Machines Corp., 23 F.3d 719 (1994),
found discretion in the employee information package and
plan summary. We, of course, have no way to know exactly
what was contained in the package. And in any event, we
find the reasoning of the Ninth and Eleventh Circuits
persuasive and in keeping with our prior precedent.
  The Prudential Plan provides that an employer may apply
for a change in the plan but that Prudential must approve
the application. We have not been informed of any changes
to the plan, and surely we would have been had language
conferring discretion been the subject of an amendment.
  The SPD is a document which the administrator must
provide to participants pursuant to 29 U.S.C. §§ 1022 and
1024. It is not the subject of negotiation. Information in the
SPD must be provided in a manner “calculated to be
understood by the average participant.” § 1022. Without
casting aspersions on Prudential, we note that the im-
plication of § 1022 is that the SPD will be an accurate
summary, not an unnegotiated enlargement of the admin-
istrator’s authority. Were we to say the SPD controlled
in this situation, we would be—to use an apropos cliché—
allowing the tail to wag the dog. Accordingly, we VACATE
the decision of the district court and REMAND the claim for
the district court’s de novo consideration of whether Pru-
dential acted appropriately when it denied Ms. Schwartz’s
claim. On that point, of course, we express no opinion. Each
side shall bear its own costs.
6                                         No. 05-2727

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—6-13-06
