on the other hand if as great west of net it only proposed quarterly interest rates then great west violated section four of six a unless great west proves that the terms of its is simple you can over charge in iraq the plan for services i couldn't enter into a contract with the rest the plan for an eighty five percent contingency because it would not be a reasonable contract for necessary services under section fo you do you agree or disagree with the premise that the following from this that the use by clause require embeds within it the for use by or for the benefit of clause in other words is the disjunctive that you're relying on the use by great west of the plan  assets for the benefit of so you would agree with mr phillips that under a one d it has to be for the benefit of great with i would add but i would say that any time you take an asset including a non monetary asset like a chicken if a plant had a chicken and i took the chicken and i took its eggs and i sold them or if it was a dancing chicken and i put it out there and people paid me to see the chicken he'd be taking the plan at that in using it for your triggered in granting summary judgment on our part in interest non producing reclaim the court never got to the merits of the court never said a one deal wasn't frager the court never got to the merits of whether this was a reasonable contract for necessary services instead it needs red harris trust to convert a knowledge of the circumstances tast into essentially knowledge of illegality and that's just cannot that that antecedent legal holding where you pour that's out on s sol actually asserted an exemption a class exemption seventy five dash what and there was no mention in the case about oh did they know that they didn't qualify for the exemption should they have known the entire discussion of the case was about whether they were aware of the circumstances well that the quote from solomon says translates to the instant contacts the transfer you must have actual constructive knowledge of the circumstances that render transaction unlawful correct or so they've got to know if it's a lawful well i think they have to know the circumstances which means they have to know they were dealing with a plan they have to know how much they charge the i have to know how much risk they were bearing but if if if  if they had an advice from their lawyer that they satisfied an exemption that would not get them out of this we would still litigate the reasonableness of the contract it's not a subjective state of mind test for intent but you you would agree on this on this part of your claim that the burden is on you to show the great west either knew or should have known that it participated in the prohibited transactions and th basis for us saying the compensation was unreasonable how much they charged what how they were investing the money all the things that matter for the expert reports are filled well i'm just kind of getting back to my burton question where here are reviewing summ judgment what did you need to do and did you do it to survive summary judgment based on this verdant act so i think we certainly did if you look at our expert report and the extent of expert discovery i detail explained how much risk great rest with taking on how they were investing the money how what they were what their cost of capital was all of these things go to the fight over whether the compensation was reasonable it cannot be i that there's constructive knowledge you should have known that your compensation was on reasonable that's no different than what we what we alleged all along which is you knew the circumstance well isn't the knowledge and knowledge of the plant you bear the burden to show a prohibited transaction under four o six a one d you just a bump a few moments ago acknowledge that of under four zero six a one d the use by clause in bed with in it for the benefit judgment on the subjective intent of great west to expect to use or to invest these plants as that for the benefit of great webs so yes and so your honor i think i understand that argument i think it can't be because it proves too much and here's why either we're right that any time you take a plan a half at the back of my chicken example i apologize a little frivolous but if either right that every time you take a plan after that and you use it and you rules they were enacted to very very broad in the very aggressive if you look at the way they work it's pretty striking what congress decided was in in the eighty's action it took a whole bunch of garden variety transactions selling things providing services et conclusion which would mean that it doesn't matter how unreasonable you make you may think that the facts of this case are oh sir you may not like our facts or works we want to be put to our proof on this but imagine a case where the compensation is i'm charging five thousand dollars an clause for the benefit of how can the laws for the benefit of the party the how can that be mean anything other than for the subjective intent of the  i mean i think the short answer is anytime you take someone else's asset and you invest it so that you have a profit stake in it you're using it for your benefit that doesn't mean it's wrong that means that you get scrutinized for reasonableness and the mine r cases you can have a trial over whether or not this is a reasonable contract and the terms are reasonable and you get that issue i don't see why you would grant summary judgment on some knowledge element before you get to that point  the clock seems to be running fast this morning and i'd like to get to the to do scary status issue and my question is if a participant is free to withdraw from funds without charge or penalty what difference does it make whether the plan offers a comparable investment option so i'm not sure that that's a critical point but what it but there's an antecedent point i think is essential which is the participants ability to exit must be legally irrelevant as the district court recognized that great west has no case that has ever held that a participant ability to move its money verizon fiduciary status and there's a very simple reason for then no service provider that ever selected the investment options in a plan that gets elected the terms of the investments would never have any responsibilities because you could just say well i put a ponzi scheme in the plan but participants could have chosen to move their money you know and put it in another investment there's a real counsel i understand that argument and you've made it in in your brief but let's say we disagree with that and we're back to whether having a comparable option need to be meaningful trying and if the as is undisputed on this record the great west contract requires that there is no money market that there is no other stable value product that there's nothing similar i think it's not restriction on the plants ability to exit maybe because of the twelve months issue why should that matter in this case we don't have a plan who is a plaintiff in the case well if it is so it's not just the twelve months like we well but ok but you don't have a plan that's a plaintiff in the case so what difference does it make if there's a restriction on a plan exiting the phone arkansas i'll have the answer to that is if plans don't have the right to exit freely then great west has the control of the fact that the mr keep this plan didn't try to exit so it doesn't bear on the question of whether great west essentially can force the interest rate i see that my my my time is up time we have disgorgement claim that doesn't work in terms of you don't you don't need to identify a specific fund if that were the case solomon couldn't have come out the way it did but we have an alternative equitable restitution claim and this is the whole specifically identifiable fund because the contract remedy that's not this case this is an equitable restitution case totally different set of rules if you look at their off the court break that down the difference in an equitable restitution case you just have to show that were if we were to disagree with you you would you would agree that that would eliminate your non the g sherry claim because you have to not you have to be seeking aquittal are certainly if if if discouragement doesn't fit here or equitable the morning honors may please the court card or phillips for the apple in this case i think i want to start with this question so it's back right that you asked about which is what what is the nature of the science a requirement and i agree with you completely you can derive it directly from the statute for a one a one z for the benefit of seems almost clearly to him to require that and i don't see any other way to read follow on other than to say that when you're talking about anon for the sherry so you're making an extraordinary leap here you're imposing life building on somebody who's just dealing with the plan providing services to say that you're going to impose liability on them under those circumstances you have to have more than simply the fact that they're th could be subjected to a challenge that's what you do sherry's have to worry about that's their job not to do shoes don't have that responsibility and my good friend i'm pretty sure said not one word about science or in this case in terms of any shred of evidence that we had any idea that by for for the benefit of a party in interest will use by it doesn't make any sense to say used by for the benefit the only way to read that is to say used by a party in interest so the way i would naturally read the cause is that if the party in interests or or if the if great west is a use the plan assets for any reason then that is a per se violation of a wednesday or if you allow a third party to use the plate at that for the benefit of great west reason you have a subjective internal requirement is because the whole purpose of this exercise is is to put money into great west hands in order to it to end up with a guaranteed benefit product that is absolutely critical so that so the underlying fund and to a very huge segment of the fund that's the reason why these assets are put into their hands as it turns out the way this deal is struck they can then also commingled those funds with others and thereby come up with with a profit hopefully although again they barely entire risk of that right if the market goes in the opposite direction we're still on the hook for all principle and every nickel of the accredited rate that we've promised to them and so to suggest in that context the statute aimed at this kind of a situation is is to my mind not what congress had in mind for me to be no reasons it was an act that an entire provisions protect guaranteed benefit products and then allowed this to come in and essentially wipe them out in one fell swoop so i don't think that's what i don't think that's the right reading of it but solomon i think so absolutely clear that there's a fundamental difference between through shares non solution areas and when you're dealing with a non solution carry then you have a science require concepts like like equitable restitution and discordant those are the things that they do sherry's are held responsible for because they have on i much higher duty when you're in a world where you're trying to impose liability over onto a non area under the circumstances you then have to come up with something other than a request for money out of the entire pot of the insurance assets and that's all they're asking from is as classic a legal relief as you can get you can dress it up all you want is  it's not the scorch mint in the classic equitable sense and if you and at that stage if you're doing that you have got to have a race specifically when you're dealing with a non for to share and so the glossing over that you know responsibilities unknowingly and therefore you would hope that that wouldn't be all that easy to achieve and so the department of labor has looked at it if the participants can vote and walk with their feet that's relevant doesn't  certainly relevant if you've got a situation where the plan i mean the fund can walk away and we know that in three thousand instances during the class period that is precisely what happened and when you know that that's what's happened then it's clear that that we're not exercising unilateral discretion at all we have no ultimate control or authority over out the one year period that you can hold all of the funds in the plan in  issue but there's not a shred of evidence that any plan either had that imposed on them x that indicated any fear of having that imposed on them and the planners have more than a year of discovery before the summary judgment motions they made no effort well counsel assuming for the sake of argument that at least having that hammer of the potential ability to restrict matters this the fact that there isn't a plan that is the plaintiffs in this proceeding make that irrelevant well no i think i think i think what makes it relevant is that we don't even have well no i fly under stand i just i mean this plan never tried to get out i just find it interesting there's not a plan all the plan is to participants correct yes all right there is a plan and yet we're the argument they're making is you have to look at what authority the plan still retains after after we make frankly our offer and what we know always that that in contrast candidly to a lot of the district court decisions that up have recognized the importance of these guaranteed benefit plans in the for these funds where they've actually been some some i wouldn't say draconian but certainly some penalties for making those when you compare in the end they all kind of health and when you that the claim is that the great west has somehow in setting up the relationship with the plants is restricted the ability of the participants to move up into a comparable  fund why why doesn't that make great west of cities well again that that's that's an abstract concept there's not there's not a single shred of it mr t s never wanted to get out of the fund you never testified that he had been that he was ever deterred that would have been planted that's the plan for the fund sponsored decision under those circumstances but typically the best majority of these have some kind of a stay stable fund option but the reason we don't know about this is because none of this was raised as a factual plans yes so far as the options yes or no question about that we have that in our in our side of the contract in this particular case but it is our it is clearly our practice to do that all right so it was a follow up on ju reasonably change his or her options to another stable guarantee fine or a cd they would have to go in and change their contributions to a riskier fund as a practical discretionary power over the participants options by limiting the participants options to their funds to vote with their with their feet to change their money into a comparable plan i would have to answer is that the first one has again there's no evidence whatsoever i don't know but i'll be pure speculation by a trier of fact in the absence of some participants saying at some point in some testimony that this actually made a difference as opposed to simply that there is a that there is a fact of a relationship between the plans and are actually the funds and great was but second even if it were true that you wanted to discount the participants involvement in this it would still quarter starts the credit the rate is announced and the plant city sherry looks at that and says that's outrageous we're getting out they don't have a reasonable amount of time to bring in another plan well it's a fact that three thousand of these funds in fact did that over the course of this for the course of the class period and the plaintiff didn't bother to ask any of them whether there was a problem with the two days where there was a problem with the one year i don't think you can just take an exercise before as we know all contract provision and say you've got all this experience you're doing this on a class wide basis involving seventeen thousand funds and we have not a shred of evidence that anything was ever a problem and the only evidence that we do have is that there was a consistent pattern of voting with their feet and th exactly the right thing well when you say it's three thousand other plans were able to do this mr mcclellan did acknowledge that they had made exceptions to this no competitor policy so i don't know in any or all of those three thousand planes that withdrew from the sun you know whether or not they have the option to go into another stable find that farmer's rice did not but but the reality is is that the competition again if they if they want to live eight these issues and we could we would have a much fuller record on that but the reality is that there are literally thousands thousands and of these plans out there they compete aggressively it's not a surprise that the that the funds which periodic leave because there's somebody showing up at their doorstep saying we can give you a better deal we can give you a better deal and so it's it's it is light it is again we litigated so i don't know the answer but i would be stunned if you were to tell me that some fun could not find a plan that would provide a stable value component to it because almost as far as i know every and if you read the chamber of commerce brief the american benefits council units they go to great lengths to describe just how attractive this particular set of investment opportunities are and how largely ubiquitous they are at which again you know it's we're stepping back for two seconds to say you know congress passed a provision to make sure that insurance companies could have these plans in place and the plaintiffs are basically saying to you look we want to blow him up we want to either blow him off under under in this case i agree that it's not dispositive of anything in this particular case i do think it is helpful to recognize that we are in fact a guaranteed benefit plan within the meaning of that that you because again it goes to the to the point i just made which is congress and congress really wanted for these plans to be available because of the value that they give particular as i get older the becomes much more important the person like that that they guarantee you know all the guarantees that are better that and the willingness of the insurance companies responding to the plaintiff's motion for summary judgment so how can we say we're going to affirm that the summary summary judgment because the plaintiff be able to muster evidence to respond to something that wasn't even presented think i'd have to go back and look at it i thought we thought we put that issue into this case we we certainly quoted solomon you sure did in responding to claims motion for partial summary judgment but under those circumstances a district or three a if the if the issue forward into those circumstances and when he saw that there was no evidence realizes the fundamental requirement and so that's the first one and then of course the second one is the remedial there is no basis for equitable remedy and in this case this is purely important the only way a plan could be sold as interest rates is by freezing the funds or terminating the contract here's the evidence in the record because we're going to lose i want to lose on the actual record either one of those things triggers  waiting period that's h one twenty nine of the appendix freezing requires ninety days written notice before the waiting period kicks in this is section five point four page one twenty four of the appendix so that means it's great west says the interest rate is zero even if freeze the contract i'm stuck with zero for ninety days terminating requires sixty days written notice this is section thirteen point one of page one thirty two of the appendix and triggers a contract terminations charge that's a page one thirty one  section seven point nine we pointed all of these things out to the district court so there's a reason why the district court relied on participants voting with their feet because on the plan voting issue they just lose on the re so i just i don't want mr philip my friend mr philips to be able to say well i went under either one because i just don't think jeff the summary judgment on those back questions about about the plans ability to avoid the interest rate and then the other thing quickly on the by agreement under the contract and if you look at the treatises they have different elements for the discourse in claim the elements are listed on page two fifty one of the supreme court decision and it says nothing about tracing or an identifiable fund i think that's why judge martinez ran from that argument and tried to find another basis for for his decision thank you counsel thank you thank you to both counsel we prefigure arguments this morning they're very helpful and