as soon contends that it is always agreed that there is a basic and undisputed ongoing duty that the do sure these have to monitor trust investments and remove imprudent ones and therefore plaintiffs were free to argue a breach from failure to remove the imprudent retail mutual funds that were first part of the plan before two thousand and one that premise is false because edison as we've pointed out throughout our breeds has consistently maintained that there is not an unlimited duty to remove in parade investment options but instead that that duty is limited to change circumstances in other words it isn't stated on page eighteen of its brief in this court on the first appeal plan fiduciary is do have a continuing duty under risk to monitor investment options for change circumstances rendering the once imprudent investment now i circumstances and that is a position that isn't is maintained both in the trial court in this court and in the proceedings before the supreme court on the petition for writ of search or art and the district court accepted that interpretation of the limitation statute applying the philips decision in this course in the continuing violation doctrine theory to this case to hold that when there are series of breaches that are of the same character if those breaches the first of those bridges occurred outside of the limitations period the latter of those breaches even within limitations period as non actionable and the only your own i was about to just inquire is it you position that you made the presentations pacifically or that it is implied the the limitation to change circumstances is something that it is in as repeatedly stated throughout and that was our understanding of the court's summary judgment order and that is although the court didn't use changed circumstances that phrase specifically in its army judgment order that naturally arises from its decision in the language they use so the court said that when there's a series of breaches of the same character and they started outside the limitations period they extend within the limitations period the latter ones are not actionable under the six year statute and instead there has to be something new that arises to cause that they do sherry's go through a whole due diligence review process well i guess my formal question is whether you preserve t or the that it isn't fields to monitor yes your honor we did because we have consistently argued throughout this case both at the district court in this court and in the supreme court that edison has a duty to remove unproven investment options and that duty exists regardless of when the options were first put into the plan that necessarily entails as part of your monitoring of the answer my first question is implied in effect why you didn't make the express argument your argument is that in effect you didn't have to because it's implied in terms of edison's duty duty to remove important investment options the issue of whether circumstances the fund underperforms there's a change in management that significantly alters the fund such that it's as if it's a new fund in this plan if i understand it you're claiming that you were precluded by the district court f making the duty to monitor argument if you will but is it not inconsistent for you to claim that the district court stop you from such an argument that is that edison violated its for due siri duty to monitor the retail class mutual funds when it is clear you made just that same kind of argument from the money market funds right here out of that is not the argument we made regarding the money market funds so the claim regarding the money market funds we made a number of claims regarding that particular breach one of which was they should have used a cheaper alternative type of investment and that was a stable value fund and we contend that they should have done that throughout the limitations period and the district cour held no the decision to go with the money market fund instead of a stable value fund was made outside of the limitations period and therefore the statute bars that claim so where in the record to why find where you made that same argument direct or implied made regarding the money market fund at trial was just edison's mismanagement of that particular investment option because that it's an engaged in yearly negotiations as to that option and plaintiffs contended that they didn't negotiate the fees low enough or have a rate of schedule that had declined fees as asset increases so that was just as to how they actually function with that money market fund the claim regarding the mutual finds is that they didn't even consider and didn't switch to the institutional share classes and any time during the limitations period that's something that we argued going into summary judgment and that's something that the district court held was barred by the because the district court believed once addison decides to go with the retail share class outside the limitations period it doesn't have to reconsider whether to go to the institutional share class or do i find in that order the summary judgment order your cannot pursue that kind of a claim here when in fact you were pursuing a type of claim and that is that there were significant events that should have put the plan on notice that sort of therefore put the plan into a position to find out that they should have had the institutional shares at lesser cost than the retail or your honor we weren't pursuing the you have to remove the imprudent retail mutual funds claim at trial because it was precluded by the summary judgment order and the district court was no your argument hinges on the summary judgment or your position is the summary judgment were precluded us from making this argument a trial yes your honor ok that's the natural consequence of that order and applying phillips and the continuing violation theory to this case what do you say when defendants argue that you miss characterize the exchange between the district judge and your expert mr pomeranz that the district court did not preclude in fact that it would argue that the judge invited you to claim that and i'm quoting now from that exchange between the district judge and your expert due diligence should be undergone with some frequency but that is not the quote thrust and quote of your expert testimony that's part of the dialogue between the district judge in your expert who in fact as i read that exchanged distanced himself from that theory and relied upon solely the significant change fieri to create a new breach of  you're hypothesizing i'm not your honor i'm interpreter of the events as they happen to us and we were there now perhaps judge wilson can give an interpretation of what he was getting at there but what we do know your honor is that judge wilson had no hesitation to gave defendants opportunity to abuse additional evidence on that on the judge's own decision so when the judge decided they just a claim is in the case the judge was very clear when he was making that decision and saying i'm inviting you to pursue that client and the judge did not do that regarding the failure to remove the preacher two thousand and one retail mutual funds so our interpretation of the order in that exchange was perfectly reasonable  i also like to point out that edison understood that was the effect of the summary judgment order also because edison after the evidence was put on regarding our attempts to argue  plaintiffs could not revisit the programs of selecting mutual funds that became part of the plans investment line up more than six years prior to the filing the complaint well there's a difference between selecting at the outset and then monitoring at a later day right perhaps your honor but would you agree that i'm wondering is if you would you agree that monitoring is included within the phrase maintaining those shares retaining those funds which is what we argued because that isn't then says by challenging plaintiffs interpretation not theory the plane just decided to go ahead with it at the trial your honor i would also like to point out that edison admits that its process for monitoring investment options exclude any consideration of alternate share class a cheaper share classes as an only look at changed circumstances under performance or a deterioration in the funds financial condition and they said the reason they did that was because we wanted to avoid participant confusion changing share classes were confused chief justice roberts on page forty nine of that transcript said i was there investor confusion it seems to me one sentences one sentence saying well we have been paying point three percent this is point two percent that's why we're changing they're not going to go running out the hall screaming that there is confusion about that justice kagan on page fifty said the day when you get from your mutual fund to notice that says by the way your preferred investor were switching to you were switching you to switch to a cheaper share class is because that was their investment policy they limited their duty to monitor for monitor only for changed circumstances in the supreme court so that's improper and unless your honour's have any other questions good afternoon your honour's may please the court john hacker for edison the issue here is obviously not about what we said but what the trial court ruled in the summary judgment motion and i think there's an important concession for m that which is everything turns on what the summary judgment order actually said and the order obviously on its face and whether explicit or implied did not deny plain as the right or the opportunity to make the argument they now want to pursue which is that edison employed an imprudent process for periodically reviewing funds added to it for a one k line up before the repose period began on august twenty sixth of two thousand and one and in fact as your honor pointed out did pursue that exact argument at trial as to the money market fund which was added in one thousand nine hundred nine just like the mutual funds that they're talking about they argued that edison's periodic review process should have identified im and that fun that was their trial argument that fees were too high during the repos period and that edison breached his duty to monitor those these and to renegotiate and seek better fees during the repos period it is identified a need to renegotiate them and find and get lower fees or if unable to do so find lower fees elsewhere that is exactly exactly iran is the kind of argument they could have made with hearing anything about the nine hundred ninety nine funds unless you can tell b that the changes were so significant that the change would warrant a review of the type you would do from initial review the summary judgment order your hono nothing of that kind the word significant changes don't appear in the summary judgment order the words initial review do not appear in the summary judgment order they weren't in the brief that we filed s the court it's simply not there are limitations discussed in just two places in the summary judgment order the first is that excerpts of record page eighteen to nineteen and there's only one relevant paragraph where the court actually analysis of each party's summary judgment arguments after setting up the legal background and referring to the phillips doctrine of the phillips rule which i'll talk about in a moment but the relevant paragraph at the bottom of you can look at our argument and see that's the only reference to the plaintiffs what they would have to do a trial or what they hadn't shown at the summary judgment stage that when the thing and then later the judge says i'm going to talk about these issues later the only other reference appears if you are ninety three to ninety four which is entitle to actual limitations so if anybody wanted to know what the summary judgment order told the plaintiffs they could do a trial or said they could not do more relevantly you would read this paragraph so we can just read it conducted a better periodic review and obtained a lower fees in the money market fund nothing in that summary judgment or i just read in any way suggest they could've made that argument now mr wolf points to the prior paragraph where the judge summarizing law phillips rule that says that a failure to a failure to rectify an initial breach is just a breach of the same kind which is of course true and is true today the mere failure to secure to do something earlier isn't itself the right kind of claim because it's the supreme court itself said in this opinion in this case it is a different duty is a separate and distinct duty that occurs at the monitoring stage and that's been thinking and the judge the judgment absolutely did not preclude them from making this argument but there's also no ambiguity in that exchange there's no sense in which i think the plaintiffs are suggesting the judge was trying to trick  this was really his theory it's exactly the opposite the entire tenor of it is exactly the opposite he says to mr pomeranz not are you really saying what he says why is it relevant as to whether it the name change of the fund remain the same isn't it part of your thesis that even if a mutual fund was in the plan prior to august two thousand and one and the funded purchase the retail shares in the retail shares clash heirs were more expensive be wise than the issues no share class all things being equal there within the statutory period that is august two thousand and one forward th plan was obligated to change after the in traditional share so let me sorry to interrupt you on the police and i've read it a few times so maybe you're both wrong i don't know that judge wilson was trying to trick anybody i don't know that he was trying to invite anybody i think is the trier of fact he may have been  y trying to figure out what this expert's opinion was and disco up of that testimony a thousand percent i mean i couldn't agree more that's exactly what he was trying to do was to understand it and this wasn't the first time this came out the reasoning then says it's not your later i want to get that clarification is this was not the first reference to it he had already had several exchanges with counsel for edison where edison is putting on its case and putting on its witnesses or cross examining witnesses and saying these changes really work that's never  just a name change and twice the judge says to counsel for edison why are you talking about a name change is what why or why are you doing that i understand what you mean on a one point even says and this is that volume one on the ten twenty one testimony order to find a violation of duty on the part of the plan well we don't know that i mean they they're what the most important thing for our purposes they were pursuing the theory they chose to pursue they certainly could have pursued a theory that says in the regular routine periodic process you have a duty not only to evaluate the ongoing performance of the vine and ensure that it's a good fine but also to look for cheaper alternatives and it's not clear to me that they would have succeeded on that that's actually a harder theory than they're letting on now because if you go down that road of course if you say well you should have gotten a cheaper share class in this one fund well then why not when you are looking at the funds to see if there's cheaper alternatives or maybe you should look at the whole market maybe would be a breach of fiduciary duty to do that we're talking about  talking about a cheaper market the plan of says in their recently filed reply brief that you would mix the plan never considered the cheaper institutional shares during the period after the initial selection then in the record it's not in the record but but what money market fund in the lineup compared to benchmarks ensure that it remained you know a good find a good selection and it was not among those criteria to go out on a weekly monthly quarterly annual basis to look and see each of the funds a lot of this is the nature of the argument you really think about it for each of the funds is there a cheaper fund out there is there some reason we should do something different now it seems relatively easy with respect to just changing the share class but even that's not so easy because it's actually different investment in many cases not just pressing a button and saying we're going from you know investment a to investment a prime you actually have to remap the investment in many of these situations and so you get the exact same concerns about participant confusion they get a new prospectus they can't find necessarily because you don't know at th time frame whether each of the investment options has equal public accessability equal reporting in the usa today that kind of thing so it's not so obvious that you just as justices kagan and just chief justice roberts were speculating without a record which is why courts shouldn't do things without a record that it would have been easy but none of those before the court right now the question the point is they could've made all those arguments nothing in judge wilson's summary judgment org or nothing you said a trial remotely suggested you we can't really do that well i mean i certainly think it's that the real issue here is whether they have a chance to raise it both a trial on appeal our point is simply that if you get past that there is a record and it's not contradicted that we had a state of the art monitoring process and clearly documents have the opportunity to say something about the monitoring process and he never criticized it so given that one contradicted record that's our our only point on that but i do think the relevant point is forfeiture and it's not just a trial your honour's when it comes to appeal their argument now is the judge in a summary judgment order as i said to the u s supreme court told us that we couldn't prove our case unless we prove changed circumstances so you would expect the last time we were before this court that their brief would have been up and down from words and backwards complaining about the fact they were required to prove chain circumstances you won't see that in their public brief the phrase change circumstances doesn't appear anywhere in the argument section significant changes doesn't appear in the argand section initial review doesn't appear anywhere in the in their opening brief the argument nowhere criticizes the district court for having allegedly restricted them to proving changed circumstances this court i think understood exact what happened which was that the plaintiffs chose to make a change circumstances argument that's how dr pomeranz thought he could prove his case the district court rejected that on its merits on the facts and on appeal what the pla argued was a different kind of argument that as they themselves put it in their brief that it is permissible effectively to challenge an initial mishal decision and then the continued detention without more is this court's opinion put it because the research recognizes as they put it incorporates the continuing violations doctrine in the reply brief they said the continuing violations doctrine is inherent in the statute that was their argument that's the argument responded to and that's the argument this court rejected by saying without more then you're just arguing you're just challenging that initial this court recognize there is an ongoing duty to monitor it quoted from the are required to act prudently when determining whether or not to invest or whether or not to continue to invest as this court's recognition of the duty and it simply said and here they are for the district courts perfectly appropriate did exactly the right thing in allowing pla acceptable side said which is there is this ongoing to do to monitor and then said this court didn't address the scope of the duty which is true this court didn't address the scope of the duty and then basically the last paragraph said and there's a reason maybe why this court didn't address the scope of the duty because as edison argues the plaintiffs didn't argue that kind of argument so we're going to remain to allow this court to determine whether or not that's what happened and your honor that's exactly what happened they had the opportunity or is this argument a trial they have the opportunity to argue about it on can you address opposing counsel's indicated that in your opening salvo your opening brief in the two thousand and thirteen appeal now you did not indicate that the just record erred in that summary judgment or precluded you from making the kind allen blue in the face for do sure he's have a duty to remove imported investment options regardless of when they were first included if this mr hacker insistently tries to say i'm just arguing continuing violation i would have said the breach the damages goes back to the date that they first put those funds in the plant i've never said that i said it's only the breaches that occur within six years before the complaint are actionable anything before that is no longer actual because of the statute of limitations  in the record that they intentionally did not regard cheaper share classes which share classes because of purchase and confusion additional excerpts of record page seventy three page eighty five in page ninety three is the testimony of their witnesses that say that very thing so that was in the record one final point if there was a basis for affirming the district court summary judgment order that we could have argued all of this at trial and therefore we