dissenting:
Even if we assume arguendo that the 1993 Plan controls, I respectfully disagree with my colleagues’ analysis of the standard of review applicable to this controversy, because I believe their approach to be at odds with Hensley v. Northwest Permanente Retirement Plan & Trust, 258 F.3d 986 (9th Cir.2001).1 There, we held that the district court properly applied an abuse of discretion standard of review where the administrators that denied plaintiffs’ claims received their authority via a verbal delegation. In doing so, we said:
[T]he Plan provides that “each Committee establishes procedures for carrying its duties and powers and keeps records of its proceedings, acts, and other data necessary to administer the Plan.” Although the defendants did not produce documentary evidence showing the delegation of authority from the Physicians Plan administrator to Canter, affidavits from her and Kirk E. Miller, a Physicians Plan committee member, state that the committee for several years had delegated to Canter the authority to make initial claim determinations. Finally, nothing in the Physicians Plan requires that the delegation be in writing.
Id. at 998 (emphasis added).
Here, the 1993 Plan grants the Trustees discretionary decision-making authority to make decisions and gives it power to “delegate to the Contract Administrator and Employees of the Employer such powers and duties as the Trustees shall determine.” As Article IX, § 9.04 of the Plan demonstrates, the Plan does not require that any delegation be in writing; and their authority to delegate is plenary, giving them the power to delegate “such powers and duties as the Trustees shall determine.” Michael Hodge indicated that the Trustees verbally invested the Medical Review Committee (“MRC”) with authority to review claims, and that MRC exercised the authority for years:
Q. And how is it that the Medical Review Committee had fiduciary authority?
A. It was delegated from the trustees down through Jack Snow to me, and Jack actually was the one who would have delegated the authority to the committee before I was here, and. I just carried that on.
Q. And what did Jack Snow specifically state to you that led you to believe that the trustees had delegated discretionary authority to the committee to make benefit determinations?
A. The — over the course of five years or so we discussed that fairly often about delegation of authority and who was responsible for making determination and final determinations.
ER 650 (emphasis added). True, Albert-son’s did not submit documentary evidence to support Hodge’s testimony. However, *1174neither Hensley nor the 1993 Plan require such documentation, to the contrary: an oral delegation will suffice. In addition, it appears circumstantially that effective delegation did occur because at the time the MRC ultimately denied Shane’s claimed benefits, the decision-maker under the 1993 Plan — the Plan Trustees — w longer existed! The MRC had taken their place. Furthermore, the district court relied on First Circuit authority to ignore Hodge’s uncontradicted testimony, not authority from our Circuit. Hensley controls, not Rodriguez-Abreu v. Chase Manhattan Bank, N.A., 986 F.2d 580, 584 (1st Cir.1993).
We seem to have become distracted by the absence of any express authority in the 1993 Plan permitting the person to whom the Trustees might delegate discretionary authority to set up a competent committee such as the MRC to make these decisions. In the scheme of things, I see this factor as utterly inconsequential. First, it is not surprising that Albertson’s set up a committee to make complex decisions on medical matters such as disability, complete with an independent physician. Such a committee is certainly superior to one executive. Moreover, the MRC was well established and regularly functioning by the time the disputed decision was made in this case. Finally, and most importantly, Hodge’s uncontradicted testimony demonstrates that the trustees had delegated discretionary authority to the committee to make benefit determinations. Hodge said “we discussed that [the Trustees delegation to the committee] fairly often about delegation of authority and who was responsible for making determinations and final determinations.” I read this testimony in context to indicate that the MRC was created by the Trustees by way of delegation to Jack Snow.
Under these circumstances, I believe it was not appropriate for the district court wholly to ignore the Plan’s delegation clause and Hodge’s testimony. My colleagues don’t either, saying that the district court “may not have properly applied and expressly considered” the relevant evidence, but then with all respect, my colleague’s conclusion replicates the district court’s mistake and exalts form over substance. I reiterate, the MRC was in place and functioning, the Plan Trustees were long gone. Thus, from this record, I conclude that the MRC was properly vested with the requisite discretionary authority to review Ms. Shane’s LTD claim. It follows as day the night that our standard of review is for an abuse of discretion.
Moreover, I find it hard to believe that the district court’s inappropriate reference to the contra proferentem insurance case doctrine is of no moment. Why did the court refer to it if it was irrelevant? My colleagues appear to believe that the district court referenced this doctrine and then ignored it. This is hard for me to accept, especially in the light of the district court’s findings and conclusions, all of which disfavored the party that the doctrine puts at a disadvantage: Albertson’s. At the very least, I would not guess at what the district court did with this inapplicable doctrine; I would send the case back for clarification.
With all respect to the district court, its analysis was off track. Its analysis relied upon an inapplicable doctrine which inappropriately disfavored Albertson’s, used the wrong precedent, and ignored without reason relevant and material testimony and evidence. I would remand with instruction to start over without using the doctrine of contra proferentem, to use Hensley as precedent, and to apply the proper standard of review.
Thus, I respectfully dissent.
. I am unconvinced that the 1993 Plan governs this dispute. The 2002 Plan was not an amendment to the 1993 Plan, but an entirely new Plan that applied to all cases as of its effective date: February 1, 2002.