deferred compensation plan governed by in the district court below in this case correctly found that a th of the deferred compensation  fiduciary duties by taking plan assets in where the court erred is that it failed to provide a remedy that fully required that fiduciary to pay back the assets and restore the plan and its participants and beneficiaries to the position they would be in if he court and the reason it may be a little bit difficult to identify is because those three ways that the defendants breached their fiduciary duty so they all overlap by by trying to maintain this plan as a top hat plan which would allow them to hold the plans assets and it would if it had bene valid top hat plan then they would have been able to hold the assets as an asset of the company and that's all top plans are held so that's basically maintaining it as an illegal plan so in doing so they withheld the assets from the plant they kept them as a as an asset of the corporation and eventually transfer those assets to a company called mission management trust where they were actually come mingled with the personal assets of defendant breslau meister and so that that overlaps like i say with their maintenance of an illegal plan by trying to maintain it as a top hat plan and then the taking of assets overlaps with that because they used goes assets to spend on  corporation's operations they they took those assets diverted them into the company mr la my sure specifically he had total control over the mission management accounts which were consolidated with his personal account for investment purposes yet total authority  without anyone say so without anyone else's help to take those assets divert them into the company all of those things excuse me the judge will ensure muted i believe has very basically means it doesn't you're saying he took the money day one absolutely i and i think that your point goes to the reason that the trial court took so many steps in its remedy to limit how much he had to pay back i think there was this this sense that that somehow that's an equitable but the fact is it's not non of what plaintiffs are asking for none of the relief that's part that remedial statute is really punitive in nature it's not it's not to punishment that that punish him the court did fin seem to find that he had this idea that it was a top hat plan but that a blown top had election is kind of the term that i use and it's i think it's very similar maybe to some blown tax elections they can have catastrophic consequences they cause these losses the question now is simply who bears the loss because somebody has to bear it's never going to one of the grounds for the measure damages that you're focusing on there was this issue whether or not this record it correctly good faith or no good faith but there were four reasons given and one of the reasons was that the discord said that it could not determine the probable amounts of contributions withdrawals that would have gone into and out of the plan whether those amounts would have increased or decreased plans balance beyond two thousand and four so why was that particular finding erroneous well i think it's because our our request for the remedy and the amount that we're asking this court to fix in place of what the district court awarded assumes zero contributions it is it assumes zero contributions and if that and if the defendant wanted the benefit of with drawls it would be the defendant's burden under donovan versus bear with to show what those withdrawals are goldsmith and so the goldsmith is liable since the goldsmith can't produce the jewel the jury has to assume that the jewel was the finest quality of jewel it could have been an award damages on that maximum basis not because the goldsmith was it acted in bad faith but because the doubt has to be construed against the breaching bailey i guess in that case but courts have actually cited that chimneysweep case  construed out against the breaching tortfeasor and so that's why the with drawls don't come into play we're not asking the court to assume any contributions though in the amount of the damages awarded back to the plan are you just asking for the interest or the income that would have happened on the money had it been left in the fund that's correct we're asking for what the investment gains would have been in the court accepted plaintiff's expert  analysis and calculation of what those gains would have been had it been prudently managed and actually to defend its expert who was a former colleague of the plaintiff's expert agreed that the calculation at least was correct and it was are going to have to you have to address the  the court below does have some authority on remand to enter some orders for the administration of some of the proceeds of this fine and the court may have some discretion there for other participants who have been paid when they submit claims just as you would happen with any sort of common fund administration if they're if they're claimants who say yes i've already been paid x number of dollars i think the court may have some discretion there but that's not it is short for any of the plaintiffs i would worry about that  reliable for the purpose not all for all purposes but at least for the purpose of of reflecting account balances as of one thousand nine hundred and seven the plaintiff's expert shows how those spouses would have krohn to today and then for individual claimants and again were not time up plaintiffs because they all testified it wasn't disputed that none of them have received any benefits but for other claimants yes i think that the court does have the discretion to prescribe sort of a claims process in which people contribution and indemnity that's exactly how it was read that's exactly how it was argued there was no you know that is the case if that is the case is it your argument or a part of your argument that jus whatever d extent whatever extent the district court was correct and i understand you say that wasn't great reverence that the district court was wrecked that she should share in the liability it's on the defendant coming after her or the  want to collect against them they can do that that's exactly right that is our argument and that is what the cape the line of cases ever since shaman can now and this court have described is a joint and several liability scheme in which t it only takes one plaintiff because every single one of these plaintiffs has an independent right of action on behalf of the plan to seek recovery for the whole plan and so you'll notice in the brief of the a pelleas here they don't even they don't even claim they don't even ar like we've already been a brief i think it's largely an academic point because as long as one of them has a timely claim or recovery from the whole for the whole plan is available but to the extent that that the actual knowledge standard needs to be considered it is a somewhat unique feature of a risk cases and we've cited some authority for this in the brief that knowledge that somebody is just taking money from the plant isn't really isn't always enough because you know this is this case is a great example because the the breaching fiduciary has asserted over and over again that that there wasn't breached that this was a top up plan and somebody who doesn't know whether it's a top hat plan or not really doesn't have enough knowledge to understand that there's been a breach and a risky case is there does have to be some knowledge that that the conduct was a breach of a fiduciary duty and not just the fact of moving funds around because if one other thing about the remedy that has has puzzled me here let's assume that we agree with you about practically everything you've worked for order you fill personal they're entitled to argue the fun should get the money the fun gets the money maybe somebody else gets the benefit here though it's a rather small number of people who are involved we the court found that some of them actually aren't vital to  all what what happens if at the end of the day nobody's and vital to any more money or only a few people are entitled to benefits and there's still money left in the fund what happens to that money that's a good question i have to say that for the point of i'll insist that all the facts were shown a trial to show they are absolutely entitled to their shares and we've made that are you so some people at least will be entitled but i'll take  sorry for example name comes up in the record there was at least some argument that he may have been paid everything that he would do if that's true and that reduces what ultimately has to be paid out in theory then yes i think some of this money could wind up going back to the companies and so i think that's at least possible but again i think that has to be part of the claims process and i think at this juncture again the burden is on the defendants to show who had a claim but not the people who didn't that claims earth for theft of the old of it i understand it is being per capita to everyone who signs and mails in the affidavit that attests to the four  elements prescribed in that by the district court order for that affidavit of employment age participation and i think one more and so anybody who gets the notice mails in that affidavit gets an equal share with everybody else that does not restore the participants to the rights they would have had but for the breach they had accrued account balances so the pens who they are right some people might get more money and some people might get less than tha would basically create a distribution that that just doesn't bear the relation to what the different people's vested rights were because they weren't all equal fact that as he conceded the plan itself was found by the the trial court to be defective and it was found by the trial court to be defective  presented because of what the trial court found as the absence of the subjective factors the plan was not a top path plan no action was brought to  enforce that ruling or to enforce the deficiencies in the plan until two thousand and fifteen nearly twenty years after the plan was originally presented to the employer is actually if we go back to the original nine hundred and ninety plan it was pretty close to thirty years before after but i think for purposes of this case we need only look at them at the one thousand nine hundred and seven plan there are two components of the statue of limitations for fiduciary violations interests and the st component is the statute of repose the six year statute that says and in its factor and substance that no claim can be both parts the only part that was argued in detail during the case was the nd part the knowledge piece but on it from our perspective the deficiency for failing to comply with the statute of and thirteen throughout all of our pleadings we most vigorously argued the nd part the three years i have seen you was there an argument that said to the district judge by the way the statute of riposte was takes out side or my side that the the decision of the court was that the plan as presented to the participants was defective in two thousand excuse me and in one thousand nine hundred and seven because the participants in the plan according to the court's finding which we also disagree with but the participants in the plan were not either highly compensated or management participants or select participants and on the face of the record that alone meant that the claims did not satisfy the statute of repose i don't think we even needed to argue it it was right there in the on the face of the record and there's no dispute as to the dates we argued the nd part because of the subjective nature of notice to the plan participants that's required in order to meet the three year statute but you're right we did not verbalize an argument based on the clear language of the statute when the when the court rendered its decision and on the nd issue you and the record of the case reflects that in two thousand and four mr lowell mr and ms launder vale held a meeting of the employees of c t c corporation to advise them that this that the corporation was in serious financial trouble and that the proceeds or that the accounts that the corporation had been maintaining to accumulate funds from which to pay deferred compensation were going to be used to pay the employees salaries or to cover operating expenses of the company that by itself should have been sufficient notice to the met that meet the residence was that jordan burgess and jamieson were present at that meeting we don't have evidence of that all we have evidence of machine ulcerate or who made like twenty four thousand dollars a year i think each one of the employees was identified as has an hourly worker rather than a salaried worker all of the other employees according to the to the record below and there's a there's a a list of all of the employees and a discussion of how each one was compensated in the record below all of them according to the finding this had a position in the these bonuses made a substantial amount of money but most of the people that were fucking about i mean is the idea that they somehow made a lot of money for a small town in vermont that's the point i mean how do we decide t isn't just a fact finding by the district court whether they are highly compensated and isn't it pretty reasonable to say that somebody makes twenty four thousand dollars a year is not highly compensated if you go back to your decision in denmark the the issue of compensation was discussed in that case and the court found that employers who made twice the average wage of other employees in the company could be considered to be highly compensated there's nothing risk that suggests that the size of the company dictates the amount of compensation to be paid to its employees or what to put differently there's nothing and arrested that suggests that small companies can't  if the if the court found that not all of these people met that category and that the several of them or one or two of them didn't meet that category that also falls within demmer in denver the court said pretty categorically that people here who seemed at least to me to be anything but managerial highly compensated employees well i think that that conclusion would run counter to at least as i view of there's there's nothing in a risk of that suggests that it discriminates against small companies even if the wages of those companies are not what you want i might consider to be high compensation and the management level i trial court below determined that wonderful one of the plaintiffs in this case was equally responsible with law minister for management or for administration of the plan she was the president of the company she was a director of the company she attended the meetings she recommended people for participation in the plan so when we talk about law meister i think what we need to talk about of the plan administrators suppose that's right that's right and  honor so in that case isn't it necessarily error for the district court to say that they're only has a sixty percent well you know he's liable for one hundred percent maybe she should be liable for one hundred percent sue but question and that that depends a little bit on the nature of the counterpoint of the counter claim was soley for indemnity and fun for abuse and that's a different thing than if a counterclaim is presented by someone with standing for i think fact that if the court was correct in concluding that this was not a top hat fund then the liability for any damages to the fund should have been joint and several with if the plaintiffs chose to to seek recovery only against mr law mr than mr law mr would have had the right to go to bring a claim against wonder bill for a contribution and the court at that point could have sorted out the extent to which either one of them or both of them might have been responsible let's even say that's correct let's say that in this action everybody's now bounds assuming it was mud eroni is this is that he says it was erroneous everybody is bound by the six i don't think that's a lot i think if he has no money he's out i also think that there may for all i know there are other people out there who are fiduciary of the plan doesn't leave but theoretically their fleet of them that doesn't mean that  i'm not sure you're saying you're identifying a problem with our argument or identifying a problem with the trial court's decision i think the trial court was in error by trying to allocate between wonder villain the the farthest at the trial court's decision should have gone would be to find them jointly and severally liable for damages to the fund i think i see but that doesn't help your client a lot because that moves him up owing sixty percent to owing a hundred percent if that's the easier party from whom the funds and get a recovery that's correct your honor but if that's the right answer that's the right answer i guess you're ok but the other part that i think the problem with that i think that is the and the other put thing that we need to look at though is that throughout the entire decision of the trial court the trial court found that these plaintiffs did not bring this action on behalf of the plan they brought it as individuals the only basis on which the kraut trial court found that the plan had been damaged was on her own motion after the after the plaintiff's evidence had come in another words she said specifically that they had not brought their claims on behalf of the plan why but why is that a problem well it was not part of the plaintiff's case it never has been part of the pla case they now claim it based on a trial court conclusion that says well even though they didn't prove that they didn't establish they were bringing this action on behalf of the plan i'm going to assume as the trial judge that the plan is is a plaintiff in this case because justice needs to plan as a plaintiff in this case and i don't see that there's anything in the case that justifies the crowd trying to course decision on that basis the the trial court specifically said that even though i'm not going to treat plaintiff failure to prove its claims on behalf of the planet failure to assert its claims on behalf of the plan i'm i'm going to say that if i did that it would it would violate the premises but that's not a cause of action that's just a judge's conclusion without evidence in the case to support it the other the other point though that i'd like to i'd like to make is that the whole construct of the court's any of the parties here to me is erroneous that that those claims would require a trial on their own and the court never provided for that it simply said if the claimants when participants think the system works that way i think we would have the same rights that any party to the suit would have to call call them in the court cross examine them and determine the legit legitimacy of their claims but that wasn't provided for in the in the trial below myself i'll start your honor with the one of the points about how the claims were presented by plaintiff some behalf of the plan the court initially said in its findings that and i don't know where this came from but the court in its st set of findings question whether plaintiffs had pled their claims on behalf of the plan or for recovery to the plan plaintiffs then follow that with a with a supplemental memorandum which is in their record it's and it's in the the st appendix that provides a bulleted list of all the places in their pleadings and their summary judgment motion in their responses to other motion practice in their  repeatedly saying that is exactly what they're doing they cite the statute they cite exactly the relief they're seeking under the statute as repayment to the plan there's nothing there's nothing in a  yes and that's what the subject of the post trauma was and the court in its opinion in or around post trial issues which was the follow up order after that supplemental briefing i think basically conceded without saying that that that's exactly what plaintiffs were seeking because the court then said yes i'm going to go ahead and order a leaf in that form and like i say the plaintiffs gave they gave a laundry list of all the places where they had specifically pled and argued over and over again that that's what they were after and you will find that in the supplemental memo that was submitted after the trial in response to that very statement the right in the during the trial and that and then the  said about cleaning the statue limitations because i can also tell the court exactly what the defendant's amended answer says about statute of limitations there's a list of affirmative defenses and paragraph one hundred and thirty three says statute of limitations period that's it there is no citation to any statute at all and there was not an argument that the six year statute of repose applied there also was never an argument about what the last action in breach of fiduciary duties was it's not the st action in breach of the fiduciary duties under that statute it's the last  action and the trial record shows even without the plaintiff's having an opportunity a fair opportunity to actually respond to this because it was a raise the trial record already shows that beyond two thousand and four into two thousand and seven there was still money being pulled out of mission management trust from that fund until we don't know when so there was no evidence that the last action in breach was outside the six year limitations period and then just one last quick point if i may i have to think point out that my colleague suggested that all these plaintiffs were at a meeting as employees back in twenty thousand  two of the plaintiffs never were employees they were children of an employee who died in two thousand and four there's no way they got notice at a meeting there's no way that could be inferred certainly not a factual finding that the district court would have to make