next case this morning the city of cambridge retirement versus her sec number seventeen dash thirteen eighty one counsel and they proce under rule twenty three point one is an issue that lies within the sound aggression of the court and we affirmed because we found nothing in the trial jack's record that would indicate an abuse of discretion that sounds and if you look at the babbitts case that was cited in the papers under those circumstances you do not say well you have to make a new the met because you're not really changing the nature of your well let me let me ask you this at the time of the first amend you can your honor and so that there's a park employees versus smith case and the issue really here is this if you have a situation where a plaintive brings a case and they know that certain board members are guys with high and they rush to the really is nothing other than taking the thirteen paragraph that we had put in the supplement first adding into the complex we make no other change and i'm assuming that the reason that it's very important to you to focus on the first  you'd have to look at the new board and so that your honor that you create with that i think you would have you would look at levinson but i still don't think it's dispositive because what's been lost in the briefing fresh frankly honorees is miles and miles is not a defendant but he face of a known duty to act evidence in conscious well when you say failure that that can be a relative term so a complete failure i mean your in your reply brief at one point you say the board made no good faith alright and so when you look at the situation here what we have alleged is the board is informed has needed knowing about serious problems breaking the law facilitating money laundering by brutal crimes they know this ok what is it or supposed to do do when they know they have a duty to correct this supposed to do something what do they do with the area outside the south with border area so as we can see complaint to say that the board remained whole the path of based on our views of the men well that's i guess what i'm trying to understand is again failure and passive can be totally passive complete failure or it could be w they might have done some but they didn't do enough and that could be construed as failure or passive and i i just want to make sure i'm understanding where by what you think you've alleged but what i think we've alleged outside the south where they had to come and do certain things to to bring their their oversight into compliance and if you look at the minutes it's not perfect and it may take longer than you think and i don't think you can say that they did nothing so your honor i respectfully disagree because there are no resolution saying supply them are in fact will be no from the complaint is that management continues to fight with the monitor they actually had a law suit against the monitor and there are no resolutions on the board and saying look guys we should really work with this market because we're supposed to get in line on the other hand counselor i take it you wouldn't contend with you that western union was required to comply with everything the monitor told them to do i mean there's gotta be some opportunity for back and forth or the f c c for that matter d o j is western union supposed to say look at the background of cases they know since two thousand to two thousand sixty thousand eighty thousand pence that they don't have an effect the same often find program as required by law the monitor comes in and the monitor says look i'd like to look at your trading says a literal reading might support that what they are supposed to do and no no that they're supposed to since two thousand is make sure that western union has in effect a m l compliance program so even if a literal reading would have supported it it's not good faith for the board's support management's fighting with the monitor when the overarching goal is to get in effect the same applies program because you're facilitating money laundering by proving i guess i'm i'm i'm still wrestling a little bit though with with the pleading standard so your time graph in effect is anti money money laundering program but what about a program that maybe it isn't as good as it should be maybe it's even significantly deficient but it isn't it isn't zero we don't have we don't have a completely ineffective program we have a program that maybe you claim is is a deficient one years while the board knew it had a duty to fix it and at the same time a record with the board remains wholly passive in the face of this known duty that is a clear conscious disregard claim under both of them pfizer  knew that they were not discharging their produce yury against the district court here correctly held that the complaint didn't come close to meeting that rigorous standard did not contain particularized facts showing some intentional breach  other side i agree doesn't make a difference ultimately however the standard of review is and should be abuse of discretion and let me explain why that's up that's not only a matter of the fact that this circuit has previously held that's an abuse of discretion standard and there's a circuit split on this it's about four to five i think it's almost down the middle and in terms of the split it really goes back to the united states supreme court this is not a matter where courts are writing on a blank slate if you take a look at the u s supreme court's decision in daily income on versus fox four sixty four us five the second amendment complaint was the one that brought in the deferred prosecution agreement yes to see the proceedings all the stuff which they say well the company has admitted willful violations so saying that the second amended complain they have a footnote that attempts to address this argument but no ten they don't even attempt to defend the allegations that her joining in august of two thousand and thirteen somehow makes her having done something wrong the remaining two that join joined in two any particular rise allegation in the complaint that says a word about any of these individuals the specific meetings they were at and what they supposedly did that was a deliberate breach of fiduciary duty there is whether you look at the second factual record including the facts the documents that were incorporated by reference in the complaint for the complaint spend one hundred paragraphs going through meeting by meeting based upon the materials that were then provided in the and you simply can't look at those materials and square them with the notion that this is a board that was quote unquote holy path you know in fact as you know i think that we have perhaps the most in two thousand and seventeen the duke energy case is also highly relevant but just take a look at the facts there in the city group haze over a five year period citigroup was the subject of numerous orders and consent decree complied with that order and there were three additional consent decrees that were entered with each one finding that there were just continued kook noncompliance with the earlier workers and consent and indeed in the two years following the third and what a bleeding standard the developer courts of have have referred to the length the term reasonable doubt the point is that the that the complaint has to raise a reasonable doubt about the disinterested ness of the not having to show that it's more likely than not it's also something more than mere rule a pleading standard it falls somewhere between meaning that there has to be substantial factual basis i think that the answer but it's not one of these things one  perception before i finish up i just want to mention a couple of other things you know there was this notion of management having off as we put in our priest out of the hundred recommendations of the monitor hat there were only thank you counsel appreciate the arguments appreciate the argument both counsel the case will be submitted and