consequences and on a rematch and the trial court took no additional testimony and in fact on that question made no additional factual findings  several state insurance commissioners didn't it make a finding in indeed a finding of fact that she was aware of these things or certainly should have been aware of these things and in that respect was clearly in breach well the writer is is in two thousand and three and two thousand and seven and that's all that would all be hindsight at the time they are are there and what's in the record to cease their two matters one is a application for a ceas i mean certainly she references having some knowledge of other investigations going on but other than the cease and desist orders you've got you have at a minimum an april two thousand  say that that's clearly erroneous well there are there are we suggest that there are no factual findings on her awareness of the check true money contribution rates the trustees established a contribution rates in fat in may they increase the constitute rusty's meet and they increase the contribution rates effective i think a month or a month or two later what's known in april the april twenty third meeting which is just with with with a claims and then a straight or is there some issues here there's a direction let's get this information together on let's come up with a plan and then and then in may there's a there's a six that such funds separately secure promise benefits or otherwise plan assets so by the very opinion that she would be outs and this in the same sense as the one that that you quote in part hasn't that position from the secretary of labor been that it's not just top down but you have to also consider bottom up what the people reasonably understood  participants and beneficiaries based on representations to make them well we disagree with the bottom up because if you look at arista it talks about the declaration of trust in the collective bargaining agreements if you look at what the trustees are doing they are st motion the amount of contributions the check one monies so all those monies are coming in so the only thing that cynthia holloway knows in is those monies are coming into the fund how let's take it away from holy for just a moment and just answer this these are the plan assets and then say i don't want to know i don't want to know what you're telling people out there i'm just living with these documents zat is that how the law operates and if it does  happen that be consistent with the recess purpose of being reveals that well i did it certainly not it's really not a vacuum but in this instance on these facts when all the contributions are coming in and there i think over seven million dollars of contributions a company's check one and a trustee only knows about that should be the funds coming in and then that leads to the issue of what should she have done had she acted does it does that cause any assuming the court funds or our plan assets and i firmly said it didn't get her anything she did lead to a loss of plan assets to the fund based on what she knew at the time but so when you say what she knew at the time you are you frozen in time over it you ascribe a greater knowledge to her as more and more contributions come in as the beneficial interest that the fund has was it appropriate for her to articulate her concerns and and to resign albeit continuing on to make sure claims are paid make putting up her own contributions  the issue with respect to mr doyle in this case is whether he exercised control over our fund assets sufficient to create a fiduciary status for him right and as the record reflect in mr do monies well your honor i disagree with the district court's conclusion that they were unaccounted for as the record stablished at trial all the required contributions to the finder rather forwarded to the fund as this court noted that discrepancy had to be addressed and remain and it was not addressed neither by the secretary nor the court nor mr doyle rather the court just adopted the secretary's blanket statement that when you look at the money coming in and the money sent out hey there's this amount that's left over and so it must be with p c m g there's no cite to any of the summary charts that were and in fact the the secretary didn't even question him she went through the three tranches of monies she went through the four point five they clean in from employers she went through the three point one that was the why did the p c a m p even even if we were to accept your argument and ignored the seven hundred fifty thousand dollars that's in the ether somewhere one of the secretaries argument those are those are things in the record that i take it are being pointed to and accepted by the district court as evidence that mr doyle was operating he was the face of this to the employers why what's wrong with that were with the employers and i think that's missing i mean that's that may be an argument that he did have actual authority but that's not answering the question i'm trying to put you on the short back or longer time here but the little time we've got about mr doyle directed with respect to those funds was contractually obligated either by the fine or by p c i m p and not him so even assuming he had the authority  in twelve seventy six and then again at twelve sixty six in footnote twenty three i believe in the body of the opinion the legislative history the this court finds that regulators and the court cites to congress is legislative history which was the court's on research designed to prevent these type of schemes and that is then i guess the question becomes if we accept that i guess you know we obviously accept what we wrote before but the question then becomes  well mr mr doyle directed it after initially enrolling participants i'm sorry it individual employers he to he initially had them pay in one check after they were in rolled in after they reviewed the enrollment forms which the district court properly found to be part of the governing documents here along with the trustee agreement he then directed them so it's a little bit of a misnomer so check one check because it's one check coming from the is the trust agreement and the trust agreement in this case is very clear it states that what we are is hereby established trust fund into which shall be paid on or after may first two thousand run any the case when it seems to be understood that it recent tell the signal started coming in in april and the and the cease and desist letter came in from louisiana in june but from ms hollow a control the funds how is it that from the perspective of that trustee this operating at least in those early months between the fund and c p i and that that's my reading of her brief and her positions below the the starting point for understanding clan assets is the trust agreement she should have known about the trust agreement and she should have read the collective bargaining agreement had she done that she would have seen that the collective bargaining agreement actually report it to modify the trust agreement because the  in so as you said that's something that from the trustees perspective you agreed and you'd be relying on expecting so why should why should we treat th and the initial breach by ms holloway was a failure to establish and to enforce any mechanism that would have allowed anyone running this fund to have understood what was being court found in very substantial detail reports were coming to her attention as early as april of two thousand to the two at should be doing something about it of course the position they take is she was doing things about it that then that indeed the big district court with the evidence fresh in its mind immediately after a bench trial looked at this evidence and said we sh duty of care on her part so at least in the first go round before we send it back for another work the district court in viewing this evidence thought she she did do a great job but we're not going to what i could hammer her now with no further taking of evidence there's a one eighty and the district court comes out and says not only does she breach and not only is she rival she's liable for every penny for the whole time the whole amount even though the evidence that comes in and starts talking about her having noticed in at the earliest april how do you how do you justify that based on the court's earlier finding and the lack of any intervening record being made and a probate being the earliest you can point to in that the court a five as a point of problem i think the evidence was there for her good we found rival for all of the diverted what did the district point to and renia to say create that that the actions the district court pointed to the summary exhibits that showed how money flowed it was her responsibility to inform herself of how money flowed but what this court cited it in its original well this court has a decision the investigation but by what facts the to do sherry would have found had it done an adequate investigation under the circumstances and that's the question of trying to press on you know what is the obligation what would have put her on notice of a problem i didn't see anything in the district you're trying to maybe you can point me to something but it looks like this record starts with april two thousand and two comes forward and says we've got problems with that is there anything in the record yes your honor what should have put her on notice was it was her responsibility to understand how money was coming into the fund she was aware of the fact that have from day one when p c i and people came in employer participating in the fund and designated a trustee to the brewer she should have been aware of how the money was coming argue kind of attributing an unrealistic spirit that trustees have to be omniscient before there's before there's reason for her to suspect a diversion of funds or a problem with claims why isn't she as a trustee entitle to believe on the advice of counsel we have a legitimate business arrangement here monies are going to come in and they're going to flow out and claims are going to be paid before she's on word that there's a problem how was she riaa bill for create all that's why i'm trying to get you to pay etc and it's not helping me for you to say well she's just supposed to know because if that if the rule is she's just supposed to know we might as well just that there were nefarious things going on with p c and she had p c i m p how would reading the trust agreement have told her that it would have met her if she would have understood from the trust agreement that every dollar that was paid in a check by the employer every dollar that the employer understood to be a contribution was belong to the fund those checks should have been written to the fund there should have been a protocol for the what the fact is there re april two thousand and two that would allow us to ascribe well the liability to her well what you've just said is she should have read the trust agreement and that would've led her to know that the monies that were coming in were problematic but how would she know that the april two thousand because there should have been a mechanism well at different times she received information from different attorneys but none of them spoke to this point and none of them addressed how the money was flowing or were in fact was being contributions should have been written not to anyone other than the trust and they should have been corrected by someone whose conduct she was aware of and she is the person who was responsible is different is because there was other money that went astray that came in from a different from a different individual was about six six hundred and eighty eight thousand dollars this came in from the wife right but but that kind of misses the equitable point that if you speak with you which is you know your your argument made strongly in the briefs and with some passion here at the podium is this is not right she's a fiduciary she should have known she ought to take it and take it hard and yet at the same time the person who appears from the record and from your own accounting of the record to be the wrongdoer in chief mr doyle he's the one and the secretary scraw serious most clearly walks off with a lesser sanction that just seems how does that square with you or this is wrong an inequitable it's hitch it's congress needs trustees under section four three the parties  auburn issue you know she knew exactly what was going on that this was a fraud from the get go it was a fraud from the beginning and it's not it was crazy about that is a you know a federal judge said she was evidence and it comes out exactly the opposite i think i'm asking you to speculate i mean that it's a riddle to me what was your take on it i mean you may be wrong and we'd be right but what would happen hard to say factually complex cases are a lot of work ok well there's diplomatic thank you  contributions but the secretaries always said on paper contributions aren't the issue here the issue or the issue or the plan assets or what you want to go right at her assertion that your client is responsible because it was your client's job to the safeguards weren't there the response is that she needs to be omniscient and where's the proof that had there been safeguards there would have caused any any loss of planned assets or to me it is if you read the agreement behalf of employers depot and that and then the rates are set and then the trustees then are responsible for setting the contributions all those monies are checked one money so there's no dispute or at the check monies that the after she says she she's no longer a trustee and but there would be an expectation that on april twenty third that just because there's a change in claims administrator but immediately she would know that there's something amiss and something afoot  is is is an expectation that that's not supported by then to hold her as this court seems to know it's holder responsible then for the entire run we're not knowing will go ahead