you know the fact that we haven't brought this is a class action means that another beneficiary could try again without risking collateral estoppel would reason much i'm asking about this is it seems that the fundamental purpose of this you know exception was to allow private suits in circumstances really couldn't be repetitive and so were they wouldn't completely trust something that's not something that's committed to the discretion of the trustees so when my colleagues see that you know warn about a rash of litigation is going to result from people challenging spending decisions from twelve years ago  extraordinary circumstances only happened once that is exactly right your honor in fact you know if we hadn't been able to show that we wouldn't have special you know to a lot of rooms or have we hadn't been able to show the extraordinary circumstance we wouldn't be able to treat special interests in the earlier the donor had orally instructed someone to open open a bank account for the church's benefit over strenuous objections the court there citing the standard i just described that was enough to meet the planes leaving by comparison the owners are allegations here are frankly an embarrassment of rich alleged that there was a written directive that all relevant payments were to be made in trust to deal or we have a written set of instructions using mandatory language which this court in allegation that yahoo was motivated at least in part by humanitarian and charitable impulses which isn't necessary for charitable trust intent but certainly supports we have a written prohibition on as this question which is how does the pleading standard you purpose of please and a couple times how does it interact with the subsequent course of events under the way you're looking at the case in other words you think the district court got it wrong under the pleading standards on the threshold question of whether there's an intent to create a terrible trust and then there's also the nd question of whether they're standing because they're bigger question earlier matt and there's a possibility overlay that  accompanies the fact that the resolution was made under twenty six dollars and so if we were to rule in the way that you wanted us to rule if the court's role where you wanted the court to rule which is to say actually both of those get past the possibility sta what's left to be done on those issues you need as the case proceeds yeah because it's it's one thing to say that it's plausible to say that you've done enough under integrated trust and then under th the question stands and then then by hypothesis and something more it will be done to determine whether it's not just plausible but actually you get all the way home and what else is there that would happen in your seedings that we don't hooker once on the trust when i take your point and have on the stand in question well to play devil's advocate if i were defendants you know i would probably take discovery on whether my place in fact our chinese this had been in prison for freedom of guidelines and refinement so as to who the class is though it were i take it that kind of discovery would reinforce your view that it's limited only to chinese who are being imprison the discovery purposes of this case where you only have to be sufficiently representative with the special interests to raise that issue that's a separate issue from whether the  sense of a class action but in the class of beneficiaries that's right so for example if it was that even though all people who might someday move into the hospital might someday become old  please the court map it's gerald for the police for two separate independent reasons the judgment of the district court should be affirmed in this case first the simpler of the two is no standing that is the plaintiffs in this case lack standing under hooker's the seat assume to enforce this charitable trust hooker net cougar created a narrow exception to the general rule that only the attorney general may sue to enforce a chair in a trust that narrow exception requires a special interest and that's defined as a small class that is limited in number and sharply defined in applying that rule in hooker the court found standing for a class that was limited to female elderly indigent widows in certified good who were residing or willing to reside in the georgetown neighborhood of washington d c the case was fundamentally about an eighteen room boarding house that through eighty years had never been full the size and scope of the class in that case is fundamentally different than the one discussing a park a slime ca course that for our purposes y m c a merely underscores that the essence of a special interest in a charitable trust is a particular rising interest distinct from that of members of the general public so it's conceiving of the work being done by this filter as distinguishing the circumstances from ones in which you're just talking about the generalized interest of members of the of the public and at that level of generality we do think that there's we're going on here well your honor yes something narrower is going on here because in some sense every beneficiary class is somewhat narrower than the entire public you know a classic charitable trust would be sa church or certainly just purpose but we have examples of the application of the hooker rule to churches that find the standing still too broad so for instance the williams case williams versus board of trustees the court was looking at a class that was composed of people who regularly attended were donated money to a single church in a single place and still founded on certain and limitless and so i think what's really being gotten at there is it needs to be a small class sharply defined limited in number so that the court can feel like the whole issue is in front of it when these people have come forward and so what we have here is six or seven people well i think i'm i'm trying to explain where this rule that requires sharply defined and limited in number comes from and when we look at poker and we look at williams what it appears that the court is worried about is that when you have a small number of a much larger class coming forward there could be these sorts of problems there could be repeated notation there could be other people part of the beneficiary class who have different interests we don't want repetitious lawsuits so one way to deal with that is to have a class action everybody in the classes well so so that would kind of counsel towards bigger this case to hooker so in hooker it's this carefully defined class the fun trust in that case had been operating for like eighty years and they had had very few applications they were struggling to fill this is eighteen room house and so when a handful of people came forward in the court did contrary to what the plaintiffs say project forward in a way in hooker because it pointed out that part of the reason there was such a problem getting more people to come forward and want to be in the class is that the house wouldn't let you live there anymore once you needed once your health declined in old age and so they said it makes sense that it's that they've got a really hard time finding anyone so you're just looking at a scale that's so different than in this case because here even according to what the plaintiffs say they say it's eight hundred and two one thousand two hundred people spread around the world and they seem to acknowledge i think that if the chinese government or another government particularly the chinese government to take there was to you were to crackdown on dissidents tomorrow you know there could be hundreds or thousands of new class members without warning who haven't been spoken for and don't have any say where they defined the class and looked at who the people were and they discussed the history of difficulty finding any applications i don't think they acknowledged that the actual plausible class was of that size isn't the emphasis on hooker though on the fact that the trust was at a crossroads and that if these representatives were not permitted to stop the transfer that would be the end of the end of the altogether and isn't that really what's the real motivating factor behind committing this kind of substitute for the attorney general that if these representatives can't bring it then no one can and the argument that others may want something different well once the fund is a limited way that there won't be anything different for those people well your honor there are there is of course the attorney general who can enforce it and this situation could also have been forced by yahoo under their pleading as the alleged silly asian is the yahoo is the wrong word here so that seems unlikely that they would be enforcing a model that we have that makes we have to accept that i'm not saying they are the wrong door i'm just saying  allegations so the idea that yahoo would be enforcing the prevention of a transfer of the yahoo one seems very doesn't seem like you've got the right alternative represented well your honor there's no reason to believe that the attorney general doesn't do its job and that's all but that was the whole point of booker as attorney general is a big job with lots of different things to do and by the way it wasn't called the attorney general that there was no attorney general who could in those days it was only  corporation counsel but the attorney general has a big job and the point here is there are lots of things and there are lots of chervil trusts and that's all the attorney general did he turn sure wouldn't be able to do the rest of his job so where you can define a class of representatives who have a sharp interest a major change in the structure of the fund the sunni again that there is a fun the sunni that it's run called be sick so we have for the purpose of this let's assume that why don't these people seem like logical representatives of that claim well i think your honor one thing that's getting lost here is we're going to require both  fundamental challenge and the small limited sharply defined class and so what plaintiffs have argued here is a is a fundamental challenges some sense but embedded in it is also the their claim that they wish to have funds from the stress themselves and so what you can see and hear is the seeds of the problem for that woman as well but the bottom line is i think hoover requires both and what they don't have here is  small sharply defined class they have you have a contest of the other element right i'm sorry you have contested the other element we haven't contested that element but you can see it's not that the sole challenge is this fundamental challenge they want for themselves a piece of the trust and they say that in a few places including page two of their opening brief and so we just don't have this small limited klassen even on the face of their complaint so on the small really with us and so getting back to the question of drawing a distinction between the general public and the particular folks use putatively how concrete interests are at stake it seems like the concern is about the incidental in direct benefits that or could hypothetically be realized by the public at large which you can often see charitable trust issue agents because if it's in fact a charitable trust then it's serving a broader interest that indirectly and incidentally benefits the public large even if you're not one of the direct or direct beneficiaries and when you look if you're looking at it on that axis then here you're not talking about incidental an indirect beneficiaries of be the public  from achieving humanitarian goals but you're talking about sub population of individuals who are more directly benefited by the election purpose of that terrible trust yes your honor except when we're talking about it can be that any time you can identify a population that that's good enough to allow those people to come forward and force the trust because that's true pretty much all the time so in other words here you could say well the whole degree degree of directness that they're kind of at the core of what the purpose of the transfer is all about they allege that you're her but i don't think that i think that the problem here is that that couper is still incredibly broad and there are many people out there who could have different interests than these plaintiffs who we don't have and there are hundreds of new people every year in china boarding to their complaint alone who are imprisonment and so the core purpose of poker and keeping it small is not satisfied here the nd issue is that there is no charitable trust at all the other aspects of the agreement here so for instance the fact that virtually all of the money could have been used to protect yahoo from further litigation and in fact when we look at the three purposes laid out for the money the only one of those that find is under obligation to spend it on is the indemnification of yahoo we also have these disclaimers of rd party beneficiaries which are in fact even a little broader than that because they yes yes of them with respect to that that's not inherently an at that ickle to creation of a trust because that is that it's inherently anecdotical to the creation of a charitable trust and if it's not a charitable trust then the plaintiffs lose here and so what why is that if it's not inherently in it that it go to the creation of a trust as opposed to a charitable trust and there was the creation of a trust then why wouldn't it be the case that the words in trust say there yet is a creation of a trust with the back of the claims resolution possibly possibly with respect to a clean resolution it's not terrible trust but with respect to the humanitarian goals it sounds in a charitable trust because that's the entire body of the money your hon or so in other words it is your you can't have a trust that doesn't that is you're not going to have that you shouldn't have a you cannot have a charitable trust when the entire body of the money can be used for and on charitable purposes and beyond can be but it is primarily obligated to be had more claimants come forward so so i think it's worth just briefly if i may say what was going on here so there had been this congressional testimony it was discussed in front of congress this litigation the members of congress essentially told yahoo to get it settled publicly and so you know who to make sense will be many more people coming forward like these original plaintiffs and so with harry wu who is speaking for his organization and for the chinese families as their power of attorney they settled and they get they paid three million each to the families and seventeen million to with his organization and so what they got in return is this indemnification so the the fund the foundation had to use that money to indemnify yahoo against a normally when this is ok the non shared of the purpose is very small by comparison to the charitable purpose and i don't think that's here i think that because these st two families had settled for three million that even just a handful more people coming forward based on this of the city could have exhausted this whole fund for the purpose of yahoo's purchase of the piece and that is not a charitable it doesn't show charitable well i'm just i'm really not purpose and not the other no not in this case your honor because the nd purpose the purpose of protecting yahoo is contractually agree they're obligated in a way that they're not obligated for whether there were an internal e mail from  founders of yahoo saying we intend this to be a trust we intend for this money to be spent for chinese dissidents who were imprisoned because of use of the internet and we did not intend for it all to be spent for some other purpose to that that conduct and spoken words i think that's exactly the phrase can be used to determine the intent of the dawn right yes or so what if the don't or which i take it is ya hear some in some way a statement saying this is our whole purpose is why we're doing this we have and we want credit for it we're you know this is the way we're going to get credit we're going to have create a foundation in trust for dissidents with these characters i why that's this is not a contract in that sense the law about trusts is that spoken words what you say extrinsic evidence can help define the intent of the the dog well but so here the allegation is that the settlement agreement self created the trust and so what i'm saying is in the settlement agreement we have enough language to clear meaning on the face of the settlement agreement to see that there is no shared of interest in town and so we don't get to that stage one case is that if there is extremes of evidence with respect to a trust that is with respect to the intent of the don can't look at that i'm not sure your honor i think interest comes from the fact that we're at the motion to dismiss the and the allegation is that a particular document has created a trust and so we're saying well when you look at this document you can see the absence of one of the elements when you think they said we think the document itself and that we are foreclosing any reference to external evidence about the intent in the complaint includes external evidence about the intent of the bill yes but if the document itself shows that there is no intent then i don't think we get to an analysis of that here but you can't cite a case for how mick trust operating would still mean that even in that instance that it wouldn't count the the thing that was created wouldn't constitute a terrible trust because there's too much of the claims resolution part of it even even in the existence of trust where the primary even if you're saying there's a trust it's a funder of trust where the primary object is the commitment to protect yahoo in litigation and so there is no charitable trust there for the point even even if it says the word so that it at the primary object is the humanitarian part of the secondary object as claimed resolution if it says the secondary object is claims resolution and by the way you're obligated to indemnify yahoo against any claimants that yahoo sense to you then though maybe you have a confused trust i suppose there may be there some time for that but to only comes into play with respect to how to resolve to be doesn't go into what to do about to a and if you're supposed to use your best efforts to maximize the benefits that she that suggests that way well maybe one way to do that is to not pay out who claims well know your honor because under two i don't think they could do that and i think actually the right way to view it is if many other claimants or other claimants had promptly come forward as the parties were concerned about based on this from the city yahoo would refer them to the fund the fund was then hereby agrees to use the phone to indemnify and hold young who harmless and that that use of the money essentially believes into one i mean it isn't some sense humanitarian though it certainly isn't charitable to pay millions of dollars to the families of the people prison even if those people are suing yahoo larger non charitable trust and i think that's pretty the start of that argument also here there is there actually is evidence that yahoo problem here is that there's an indefinite problem that created just just disability issues so what they're really complaining about is just size but the only way they can complain about size is to point at all the people outside of china and to the point of people who might be