statute of limitations for breach of fiduciary duty claims under rissa it said a general period of six years to impress upon those vested with control of pension funds the importance of the trust they hold and to insure that violated that trust could not easily find refuge in a time bar congress crafted a narrow exception from that general period that shortened the limitations clock to three years initially that three year exception applied in cases where a participant had either actual or constructive knowledge of the breach but in one nine hundred eighty seven congress specifically amended the provision to remove the constructive knowledge trigger as a result to dodge and otherwise timely suit based on this exception the defendant must now meet a high bar at summary judgment it must come forward with undisputed evidence that a participant had actual knowledge of all the facts that form the basis of a claim more than three years before it filing the question here is whether the defendants have met that burden by establishing that mr salema had actual knowledge of all of the necessary facts forming the basis of his imprudent investment claims the answer to that question is no and is no for two independent reasons first is undisputed that salema himself did not personally know any of the facts that the defendants and the district court relied upon by definition that means the only way the three year exception could apply here is through a construct of knowledge not actual knowledge standard second even had actually seen and understood the material contained in certain plan documents that the district court thought were relevant those documents do not disclose any information about the fiduciaries process for selecting the investments but the claims in this case are imprudent investment claims and they turn on the reasonableness of both the substantive investment allocation fiduciaries process for selecting those investments and so knowing all of the facts to establish a breach claim here requires knowing something about the nature of the defendant's process that would at a minimum permit an inference that it was flawed the information contained in the plan documents about the investment allocations however say nothing about this it is relevant only in other words to the first element of an important investment breach claim and in fact this court made clear in t several years ago that that kind of information knowledge of information materials contained in plan documents is insufficient to establish actual knowledge under section one eleven thirteen i'd like to return back to the first reason why the three year limitations exception cannot apply here salema lacks actual knowledge of any of the facts that the defendant and the district court say are relevant and on this i think it could hardly be clearer i have one question for you about the relationship between actual knowledge and constructive no and i'm not suggesting that this is the case here but i just want your thoughts is there a willful blindness a standard that's built and in other words if let's say a report you sent individually to your client and it lays out everything method of selecting investments all the reasoning behind a particular investment and the investment itself and in your client chooses not to read it or just says well i don't care or i don't want to know does just that count so that so this is i know that i know that's not yes say something not asking you can see that but just for purposes of analyzing the statute that fall short i think the i would answer that in two different ways your honor first i think the seventh circuit got it right in fish when they addressed that particular issue and there judge hamilton said the statute doesn't say anything about willful blindness that is a standard that is typically applied in criminal cases in the context in which someone  denying knowledge or refusing to read it is however a judge hamilton said possible that you might find a case where where the evidence would in fact suggest that somebody just refused to read a document but if that were true it would it would undoubtedly be an issue for trial so the question at this stage of the case is whether there's a genuine dispute about whether this participant knew anything and so to the extent that willful blindness plays any role and i don't think that the statutory language in  eleven thirteen permits for inclusion of that standard it would be something that would have to come out in front of a fact finder here however of course as your honor i think suggested the district court was quite clear there is an entire section in the opinion that's label findings of fact in which the court said mr salema never saw a any of the documents that the defendant say matter in this case the only documents he saw of course were the account statements which in a deposition he admitted reading but none of none of those statements say anything about even the most basic information that the defendant say is relevant here the allocation amounts between hedge funds private equities and other and so he personally had absolutely no knowledge whatsoever of even the first element of a breach claim let alone the second and so the only way that the district court could have charged salema with actual knowledge here and trigger to trigger the three year exception was to attribute to him as a matter of law knowledge that he did not personally have and that of course is exactly the constructive knowledge standard i think that the trial court was not alone in the ninth circuit at least in terms of district court cases to t i guess this is this is putting aside to put into one side this constructive knowledge question but to all said even if you take on its face all of the information contained in plan documents when the claim at issue here is an imprudent investment claim that is the  of evidence because it does not tell a participant anything about the reasonableness of the process of fiduciary used to select the investments and you can go back further trace this this rule back further to a case this court had thirty years ago called waller which is really the first case in which the court looked at this three year exception and there it said very much the same thing that under this actual knowledge standard you need to the defendant needs to show if they're going to try to take advantage of this exception  investment that was imprudent and there what the court said very clearly was not only do you need to know what that investment is but you also need to do some fact that tells you that it departed dramatically from the prevailing standards and there the court said this is in it in the ninth circuit's decision what the those facts were were publicized accounts of financial difficulty of the company and the ultimate insolvency it's those kinds of facts that at a minimum allow you to infer to the transom action which yes it's also makes it also different that if you're a party to a transaction you have you have to have actual knowledge and that's exactly right and i think those there was a what the what happened here was really a category error the district court applied to this blanton case and appeared to view the claims in this case as something more akin to a prohibited transaction but that is that is fundamentally not what these claims involve and the allegations in this case are imprudent investment claims and are therefore controlled by table and wall or and not blatant just a perhaps return briefly to your honor's question about constructive knowledge versus actual knowledge i think this court's decision in scharf establishes the basic rule or princip which is that a document sent to a participant or beneficiary charges the even without having read it means that the beneficiary participant is on constructive knowledge of the information in that document that's what we have here we don't have a situation where there is undisputed testimony in the record that the participant had read those documents or knew them bracketing for one second the fact that even if mr salema had read everything that they say is relevant here it would have disclose nothing about the nature of the selection process that is at the core of these imprudent investment claims and fundamentally that is what led the district court astray he would have known that they were hedge fund investor of course we don't dispute that had he read certain of those documents those documents would have disclosed that the investment included hedge funds although to be clear even on that point the documents themselves were internally inconsistent some of them disclosed the percentage at the high end of thirty seven other said it's in the twenty's some didn't say anything at all and to the extent that they identified some possible drag or or short term losses they also told participants all over the place disregard th short term losses because you need to take a longer term approach and the appropriate way to evaluate the reasonableness of this strategy is on an eight to ten year cycle and so even if you had read all of those and had understood that it contain some amount of had fun in the investment markets it would have told you nothing about whether the strategy that the fiduciaries took here was so far below the accepted settled prevailing standards that it triggered a breach of the imp an exception to the six has different goals the six years actual imitation begins to run on the last day but the violation occurred and runs six years from that date the three years the actual impatiens begins on the earliest date in which the had actual knowledge of the breach or a violation the six year is meant to be a safeguard against still claims the three year is instead serves a purpose of making sure plaintiffs don't sleep on their rights preventing players from gaming the system by even though they have the information by waiting and see how the investment plays out but it doesn't say when they have the information it says when they know of the breach a violation well let me move on to that that issue then because i wa disclosures the annual disks i knew all disclosures and the qualified investment alternative notices all the information was provided by the department of labor has said when they are required disclosure is under arrest  providing that information electronically on the company's website website is effective communication of that information to the planned participant we cited that provision in our brief the playoffs just simply  have the department of labor saying that making it posting it on a website right is equivalent to two things as equivalent to handle every of the information to the person as if i had it to you right now or its equivalent of my sending it to you by by first class mail it's effective communication the information in the palm of labor is responsible for enforcing a receipt that's its position and they simply ignore the regulations then the case law is uniform you have to read circuit which is reflective of many other decisions we cited says the following actual knowledge is conveyed when the player participant is told how to access the information or repeat that actual knowledge is that that decision appears to conflate constructive knowledge with actual knowledge and the statute was amended to remove constructive knowledge so that's my for my first issue with  the brown decision but the second is hyde like you to respond to counsel's argument that even if every word had been read it would not have disclosed and his client would not have known about the methods of selecting investments a ticket the on the first proposition whether it's constructive knowledge every case that has addressed this issue of providing information has held that that's actual knowledge so if this quote were two weeks and that means an illusion as even if he doesn't own a computer and never looks into his mailbox that's actual knowledge just from sending because in a situation where i construct that could be constructed knowledge but you just taking it away from this case what you just said that if you send it by the computer there's actual knowledge now if you made it would imply you want to provide ham but if we a pot that it applies also to the next case when then doesn't own a computer but i guess when we get to the next case you can get to the next case but i mean we when we temp pick up one stick we pick up the other end and it'll be cited to us so the question i think deserves an answer ok and my answer is when the employee is provided with a computer by the company as here when he demonstrates that he knows how to use the computer when he logs into net benefit says here and sets up an account when he in his words peruses the contents of the website before making his investment decision in that case actual knowledge is conveyed by the information on the website those of the those of limitations of what i'm arguing i'm not arguing about the person who has no computer at all it's a different situation so i'm limiting it to that situation which is our case and we also know that here he responded to the e mails he got when he got emails about not benefits we know he went in the next day and changed some of his account settings we know he registered for for a seminars via the internet we know that he used the system those don't know dispute that he was conversant with computers great but what this was done on summary judges your actual or knowledge is your actual knowledge that this is knowledge that is constructive knowledge or that anybody who does x y and z has actual knowledge well as i was saying where the employees told how to access the information electronically and where the employee has the means to sell access yeah then that's actual now to not destructive knowledge is a different situation it's where you i think ray notice you have to conduct an investigation and go elsewhere for the information here the information is being provided to the employee there's no real need to go elsewhere it's there on  computer system he still you're with or he in fact used it's available to him it's all presented on a silver platter to him you have no factual determination at all in this it's automatic as a matter of lesson the brown case of this quick work conclude that this is a case of constructive knowledge we create a split in the circuits well on this issue but the district court recognizes that regardless of access and visiting however many times make the limitations period meaningless because anyone could deny or even forget what they did you need an objective standard apart how we should we should read the statute in order to make you know depositions easier i mean that that's just a very unusual  approach statutory interpretation it's a matter of policy it's the policy of willful blindness it's the policy of these days we live in the computer age it's normal to convey information electronically through computer were in a coma after an accident to they have actual knowledge it's all laid out perfectly it's been sent to their computer but they don't read it well can't read what it's what my hypothetical so is that actual knowledge i mean under your your argument it would be we're talking about someone here who had a ph d and i scream at the physics you know you don't you don't have to answer my question but it would be helpful to me if a good deal was that actual knowledge i would say yes that's actual knowledge  doesn't depend upon the mental state of the person maybe in the extreme extreme cases always require one off exceptions we don't have any extreme exception here we have a normal situation that this statute disrepair provision which has been on the books for quite a while would be rape rendered meaningless at the department of labor's regulation would be rendered meaningless at all the cases six circuit and elsewhere they have held this is actual knowledge you'd have a conflict in the circuits that would have to be resolved by the u s supreme court so that's the situation that you're in if you if you go that way well you know you also said that the reason congress made it the way they did is they didn't want plaintiffs to game the system right by waiting to see how their investments turn hackley what what congressional history do we have to show that as opposed to i thought arisa was supposed to protect plaintiffs in this system which i think that's the congressional intent i've always seen i'm paraphrasing the judiciary's view of the purpose of the i'm taking it from the cases i read is not buckley opining on the matter i'm issue of constructive knowledge versus actual knowledge that goes plaintiff's way let me turn to that but i mean why is waller just cast aside because of the c f site ok let me talk about that exactly so there are two claims you have to keep these two claims separate your mind is very important one is the substantive imprudence claim the other is the process claim ok so what was the substance of imprudence claim in every case and under similar cases the first thing is that as defined the claim the plaintiff hearing on august tenth two thousand and sixteen before the write a judge referring to i'm sorry what page are you referring to s t r twenty seven three twenty nine that if you want to read three pages the record those  ones that we commend to you because they're the judge says what is your claim and plants a lawyer says our claim is that if the substance of imprints claim is that it was improper to invest between twenty five and forty percent of the funds in alternative investments that's our that's the core of our claim so that's the claim he said they had that was unwise policy because it resulted in higher fees and that the fund underperformed other funds  totally in equities so as we've shown i think ad nauseum and the record the disclosures that were made to mr salema disclosed the percentage allocations to alternatives  disclosed that these the strategy underperformed peer category funds that were invested in the domestic equity market they had higher fees because hedge funds are actively manage strategies and therefore there's more expense it communicated that intel was doing something different very body else that it wasn't following the crowd it gave percentages other funds are invested eighty percent or more in domestic equities this fund is invested less than sixty percent in domestic equities and we're increasing our hedge fund allocation from ten of percent to twenty five percent and it is it disclosed the strategy why are we doing this we're doing this in the aftermath of the two thousand and eight financial crisis when some of these funds lost fifty percent of their value in the space of a few months for employees who are about to retire what the strategy was they wanted to have funds have a lower negative correlation equity markets reduce the  term view and not be so fluctuating and at at risk what the markets would do so all those facts that make up his claim that i've just read to you in those pages were disclosed to him through electronic disclosure relied upon the same facts as he relied on for the basic imprudence claim their words you invested twenty five to forty percent and you were in alternatives that was unwise thing and then he inferred because there was an unwise substance of policy the process must have been flawed well in the middle gade decision of the second circuit they faced the same thing where the the process related facts trace back to the substance of impr cases you're concerned about as mr quote just point out there were specific allegations of infirmities in the process and for example in the civil case which was a case where the fund purchased retail shares the process and for many was the failure to investigate alternatives to resell funds over reliance upon an outside consultant and also additions that choosing funds that had money flowing back to the plan provider and in those cases knowing million that you had retail funds was not disclosure of the flawed process here there are no additional facts days relying upon because allegations of conclusory and the judge allowed discovery on this issue allow discovery on this issue and despite allowing discovery on this issue play of came back with no specific infirmities in the process so everything relates back to the basic five ron or just have a few brief points you heard my posing counsel say that under their view of constructive knowledge you can be in a coma and be charged with actual knowledge and i think that's all this court needs to reject the definition proffered by the defendants about how you interpret actual knowledge under this three year exception the district court bought into that attributed knowledge as a matter of law to mr salema even after finding on the record in its findings of fact that he never saw any of the documents that they say it's relevant to relax that standard specifically after congress itself removed constructive knowledge as a trigger for this exception would would be to it would be as the second circuit has said repugnant to the plain language of section eleven thirteen subsection two i also think just to flag for the court that every single case every single one that the defendant say demonstrate actual knowledge of facts sufficient to trigger the three year exception for imprudent breach claims have involved some knowledge of a fact beyond the face of the plan documents every single one it's uniform that includes brown from the sixth circuit which is one of the cases that the defendants have really rely on there you had no dispute no dispute from the plaintiffs in that case that they knew that the company was going bankrupt and that the fund was worthless those are facts outside of the face of the documents that were that that the plaintiffs knew and so could be charged with actual knowledge of the same is true in the eighth circuit brown case where the participate in that case in a deposition conceded admitted that he knew the plan was and undiversified and that that was a flaw in the process the same is true of citi group another case young all of them they all every single one that has triggered the three year exception the courts have said you need to know something more than what's on the face of the night what is your response to counsel's argument that there is no essentially is no separate process claim here because it's all inference from the substantive claim sure as her phrase for sure so every every imprudent investment breach claim requires proof of both flaw in process and substantive imprudence it's both and that's baked into the statute itself what is that what is the factual basis for the process claim here and sure is distinct you know where it is now of course in most of these cases i will answer that question but in most of these cases the participants don't have any insight into how the fiduciaries selected the funds we are not we have not been through discovery yet in this case on the on the merits of these claims to know what they did but we do know that in two thousand and fourteen publicly available material came out that accused the fiduciary as in this case of engaging in overly risky and unconventional investments and that is in the complaint those are facts there's an oregonian report newspaper report that identified these funds as unconventional and risky and there's an independent investment assessment that said the same thing and it's those facts from two thousand and fourteen that permit the inference that the that the fiduciaries engaged in a flawed process it is not doesn't have anything to do with the allegations that were targeting the substantive and reasonableness of the of the of the investment allocations and i'll say one more thing about that your honor if you look at your gate which is the best case they have for this theory that you can you can trace everything back to whatever the allegations are that target the subset of an reasonable in this in that case the specific facts that the second circuit held were and were known to the participants included and i'm quoting widely publicized warnings about the fund quote alarming public filings analyst warnings and articles in financial in general press it's that kind of information facts that can allow you to infer a flawed process that you need if you're going to start this trigger and here it's undisputed that mr salema didn't have knowledge of that at the earliest it was two thousand and fourteen thank you