in the second part of my argument i forgot i would like to reserve two minutes for these i'm so want to begin before we jump into the world as they value funds with talking about from a very practical perspective  as soley being about under performance as we've explained that's not really true but it's certainly true that the first step is you don't have a case unless you observe that there's something going on that someone was harmed in the sense they got less money in their retirement than they should have the next step then is to investigate come up with a hypothesis why was there formants what we did here is and again this is just a step in the process fundamental guidelines in industry standards yes and so to support that the allocation of the complaint points to average from those companies that responded to a survey yes that doesn't quite do it for me i need to know how many companies how representative the survey results more importantly what's the distribution curve and then what's our measure of how many standard deviations with the district court about a similar issue where the court you know what more could you do in terms of additional detail and i said one thing i have the data to do that kind of distribution you know suffice to say that that information address that within the proper context in terms of let's let's be very specific here so we're own the same page i believe that the figure you're referring to and it could be wrong is the distribution of cash allocation  value i don't think that in our many complaints or in our briefing we referred to the range i think we always refer to the average i think with the defendants that looked at the underlying survey data and gave you the seems like it was available to you short so question was you give me the average yes what about the range short in the distribution of it in that range and then i thought your response was well i don't really problematic well let me tell you what is available i don't know that the distribution is available in the sense of having every data point what is true is that the defendants in this appears in their supplemental excerpts of record  they do cite a range of cash holdings so you have the range just to be clear the information that's provided is the minimum and the maximum but i think so so there are two issues there one how you know that the fact of that range on the merits of the claim but the second issue which i wanted which i'll go to in a minute the second issue though is going to the leading standard which is you know do we need a statistical analysis where you have a number of data points and you say that this particular find was within one or two or one and a half's standard deviations from the average i'm not aware of of that ever having been  required what i will tell you we did in this case and this is why it's important as i noted that the relative composition or how it compares the average is merely a step in the analysis and in fact i think there are maybe two paragraphs in the entire complaint that make that analysis i think the more fundamental point though you know the average now says feeds into that the more fundamental point though is the nature of that is what are the issues on which there was an deviation and how important are those issues so to get back to what i was saying about the process of developing in investigating and leading coin if you develop a hypothesis using among other things you know data about what's going on the industry you know it's certainly possible for fun to have underperformed for example because they chose to invest in a particular guaranteed investment contract by an insurance company that had financial problems or they chose you know this kind of bond instead of that kind of bond in terms of industries and that particular bond didn't do well but what we see here system that do you know make that allegation which is that you should you did as a client sponsor you reach your fiduciary duty by offering a money market fund rather than a simple value fund off the top of my head i'm not involved those cases i don't know i can tell because a stable value fund offers the potential for greater returns with no incremental risk that is not our position here our position here though is that words have meanings and that one way you can judge and you should judge the do of prudence is by looking at for particular type of investment what are the basic parameters of that investment what is the basic doing one sort of fund went effectively to do another and then you get into issues of alliance and the like and i only for that reason you're not pleading a theory in a class proceeding so i come back to really you theory is terms of the first point you made which is the distinction between a prudent client and a misrepresentation plan is if you look at the classification opinion by the seventh circuit and abbott and this distinction there's address the point was that what the defendant was saying well this is really about a misrepresentation because you called it is stable value fund but in fact it was managed as a money market fund i think the seventh circuit understood that no that that wasn't the claim and that you can't have a state and the implicit character names is the phrase that's use of a particular investment advice and so within a rave investment advice is they're all intended to have some kind of pram if we thought that the average doesn't really do it because what you really want to know is how many stable value funds are out there that actually look a lot like this stable value fund what is the complete helps me figure that out short and i think this comes down to you using some common sense of the averages and present if you can you can make some and i think it's maybe even less as we've stated and then you have offering that's absolutely and that's why there's so much discussion of the underlying financial logic and i would i would urge the court to think through that aspect of it and just look at that survey data which is again was two paragraphs of a fairly lengthy complain corroborative of logic and the reason that fifty percent of cash is significant is not because it's different is because it's fundamentally illogical given you know the academic letter literature about why are stable value funds risk so i think your honor the issues obviously having a lot more cash would reduce your risk no one disputes that but it's what is the appropriate amount of risk given the nature of the product if you if your only goal is to completely avoid risk you can put your money underneath your mattress right but the reason people invest in financial products is because they have certain specific goals so i think we look at risk in this context as this horrible thing that has has to be  avoided i'll tell you that if you talk to finance professional for example in this context they would say well risk doesn't mean anything more than duration and the whole point of this project and definitional e is to have shorter duration so if you're completely avoiding risk think about it more from from the other side which is what is the nature of this product and i think we provide a lot of background given that nature what can you infer at this point about what are some reasonable promenaders and with respect to the exact percentages i guess as i said in the brief you know it's to me it seems turning your question around you know how can you have this advocate where it's the range was fifty to one you know and that you know goes out all these motions that get certified as subtle for several million dollars in our case i think our range is something like twenty eight to fifty and you say well that categorically you can't even taken to discover you're completely done i mean what about those range of numbers is significant your hundred percent sure that i don't have any kind of viable case and it seems like that kind of analysis aside appropriate for a motion to dismiss it's there's a phrase i keep using is it's a matter of degree not a matter of to the department of labor's regulation setting forth the duty of prudence or an investment if you cheri the question is whether the fund was reasonably designed to further its purposes here it's undisputed that the stable value fund which was this plan's capital preservation option the safe option for retirees both was structured to meet its capital preservation objective and its objective of the free returns higher than a money market fund and that it did in fact meet those objectives throughout an incredibly trying market conditions this one unlike most of the others didn't have a benchmark for several years then in two thousand and thirteen i think it is benchmark certainly gets and it would need to read into that fund was simply to preserve the invested capital and to deliver returns higher than a money market fund now if a benchmark was introduced and i think that would be another measure that the through the shares would be bound be a more difficult question if the fund were ninety percent in cash over ten years and it was obvious that the fisheries weren't applying any process behind the scenes to modulate the level of cash to the market environment here we're in the three years after the worst financial crisis in three generations one of the major issuers of insurance contracts to see the value almost collapse of the environment that we're in is a discrete period of time in which the future is charted a more conservative corners and  time in which it was a money market fund is that nearly one hundred percent invested in cash and the way the adult court analyzed the claim was to deny that a plane could come forward and just offer up a platonic ideal investment mix and say that you know  take risk based on the decisions of others others who are making their own investment decision based on considerations that the future is may not even have a line of sight in to others who may have investment objectives different from this particular funds the survey that they just rely upon don't describe whether a separately managed account for example has an investment management agreement with its client setting forth a more aggressive benchmark for example but but the implication of the rule that says you go to  the disclosures that are incorporated into the complaint the fifty five hundred s which describe the risk of catastrophic loss in the event that one of the insurance company caught up parties to the guaranteed investment contracts fails another is plaintiff own concession in the brief and in the complaint that stable value funds on the whole whether the financial crisis but there were a few exceptions there were a few exceptions one of them was the c v s plans p considerations the first is legal the second is practical and the third substantive legal consideration is the fact that courts are supposed to apply a program examination of the allegations is i thought it was interesting the way that this council described the methodology behind the filing of this complaint it will always be possible to identify in hindsight the element of risk taken or risk avoided that contributed a fund's performance relative to peers and stating that that is sufficient to say the claim will just invite litigation based on similar theories and i think that practical concern leads to the  balancing risk and reward under conditions of uncertainty based on needs particular to their own plans if they are subject to a rule that suggests that they are open to question and if they simply departed from the if you run the numbers so that we would then know how it compares to the average with that you're going to know i have i know i mean what we know from the survey is that for the other three years from within the range just the most is th looking at the data that we have so i guess from your perspective you might say whatever the general rules or what you could get over a motion to dismiss here it's not enough