former or are really just talking about the latter i think that what we're really talking about is that it is not diversified person and you really need some extraordinary earth but because because of the heavy concentration not only conoco phillips but the fact that it was positively correlated with the employer stock option philip sixty six of the between the two are that's dictated by the time they're braces you're cherrypicking it seems undisputed that right at the beginning if that's the focus the place actually goes well it does but your honor i think that it's important to distinguish between what we have to say what we experts came in testified the court said look you screwed up the process you didn't do the process right but any reasonable that you surely would have reached the same result and in fact the court found that they would have reached the same result for a lot of the same reasons that are true here which is to say that what the conoco phillips stock represents was an uncompensated and you don't make a challenge to their want of explanation to a translation purely to the exercise that you say they should should have in a paternalistic why  was a single not employer stock and that gets you back to pull your interpreting and i want the war to be a mandatory divestiture in this case yes because i don't think there are any facts  t if you should go ahead make this decision for them and other words and then they have to start as going up about this too bad the basically you have made the decision itself as to the risk and market fundamentally i don't see how you can move that from the participants you're obligated to explain to them what there is i don't know how you can you know i like those asian for them and you say what you got to do to do it i risky and that was premised on public information pacifically paragraph sixty one sixty nine of the point that we cited are brief your honor there's no mistake that the allegation is that the stock is too risky based on public information  argument in the cases they cite rely on old defined benefit plan with a fiduciary or actually making the investment decision as to how much we decide those cases i mean you're right the metaphor they gave was that toxic oyster that's in the prudence you have to look at the too well i'm just asking you is your position legally that it would never could never be would always be dismissable if a huge concentration of assets were in the legacy stuff well first of all he's been off  decisions rest with the participants and they are not going to substitute their decision for that of the participants for example a sixty four year old in that point and may have one issue about keeping it in there for the count purposes maybe a but is that's again the public you don't deny that everyone is the one eight one be clean your investment committee would still have a constant duty to monitor or investigate which could be heightened if it's a single stock like that the lead there's absolute special circumstances that affect them reliably the market they do not have to remove them because they're not they need to be able to time the market and again to somebody else questions that's exactly what we have here went up considerably and in fact we would have been a tatum situation if they had forced divestiture and then they would have argued we had to have a trial and to show that they involve a pretty process if they did would have to justify what they did but that's not the case here i would like to briefly address the question which is a question first impression of employer security qualification after i have great person respect for judge lake i think his opinion is well reason right in the in the court can affirm without reaching this question but it is a question of interest that the court wants to address at the c e o the stock fund was frozen a transfer into the philip sixty six point we believe if you look at the consequence of that situation and they said no it does not lose this tax preferential status it remains prepared to purposes and has employer spot in the twenty eighty appreciation issue and we think the  were the only reason it would maintain that status is it still employed or qualified stock and we think that frankly that that the better reason rule would be if you look at the actual language of the list the statute with credit with regard to poor qualified actually discourages the purpose of holding that stock and so i think actually the stock price will would take a hit if you have twelve thousand people they were forced to do it you know divest for example and so i don't think i think when it's frozen like this  after a long period of holding by these participants i don't think that that is inconsistent with that issue but again i don't think this court necessarily addressed it because i believe the court the district court was on firm ground the breach of video prudence clearly did not me offer there's no allegation of special circumstances the process claim very similar to the copy kline case this court held last year you can't have a standalone process clark took a claim you've got to show that there's an of viable underlying claim of the breach of duty  diversification that the fiduciary would have done something different than they did and then of the diversification claim the duty clearly we have the second circuit has already held that the ca diversification requirement is you look at the plan as a no longer available did they actually override any option and choice that the weather options change over time for example if they have a they have a target funds they have index funds have bond funds their stock and they'll change the mix every once in law for example if thank you your honor a couple of quick points the defendant's position here is that in tatum it was necessary to get to the facts and to have a full trial because they divested but here because there was them we should cut this off at the outset without any discovery without any trial without any facts so there's essentially a purse a rule that if you do thing to do in terms of your your plan structure they can't be sued or if they are sued it won't make it past a motion to dismiss but if they do the prudent thing and they divest well then they're going to have to be sued and they're going to have to go through trial and they're going to have to go through all the rest of that that is a perverse result that will end up forcing him certainly incentivizing cities here is to do exactly the wrong thing  circumstance of three quick questions that i think are yes no do you agree that the ten twenty five when he was given ok in the second when they rely heavily on the ohio district court case gates twenty seventeen did anything happen to that on appeal is not appealed and the last question is do you have any a one b case that does stand for a duty to divest immediately well let me back up because i'm not saying d divest immediately what we're saying is that as soon as the plan became active the fiduciary is had a duty to investigate really to investigate all of the options that were being offered to make sure i think of that is a terrible la becker duty and they don't seem to be denying that right but you know when you're doing that and in this case if you looked at it and you did your investigation maybe there's something that we don't know about some private facts that we don't know about market you have no reason to believe that it is going to outperform an s and p five hundred index fund and by having a massive concentration of it in your plan you dramatically increase the concentration risk that plan participants are very so on the face of that this doesn't look like a prudent move you have uncompensated risk so i think that you know our allegation is on the face of it it looks like what they should have done on an investigation it was decided to wind this down which a lot of funds have done they didn't do that here and what we're saying is that's plausible enough given the fact that all investment professionals would recognize that a massive concentration of single stock funds is that's plausible enough to get us to discovery just as it was plausible in the tatum case for them to say look you divested in the stock went up with your last minute twenty do you have a response to that employer issuance issue because it would be significant if we accepted that i'm sorry the the notion that this this stock maintained its exemption because i look at that as an interesting fact and it may be that the defendants would come back in the in a full you know investigation and say look this is one of the facts that we consider among the other facts that were relevant here and we made a decision and that they were able to demonstrate that through a prudent process they consider all those that those are factual elements that we would get to and writing whether phillips sixty six stock maintained the exemption