is based on a simple premise a victim should receive full and fair compensation for their injuries and wrongdoers should be held liable for the full extent of the harm they cause just a fraction of the arm than happened in this case after an eight day trial the district court found that the fiduciary is of the better health for one k plan breached their duty of prudence with respect to the fees paid to the plans record keeper fidelity or fail to monitor the reasonableness of the wreck even fees paid to fidelity under an uncapped asset based revenue sharing agreement which had no terminations and failed for two decades to investigate market rates and the reasonable as fidelity sees using any form of a competitive process had better acted prudently it would have discovered discovered that other similarly situated plans has significantly lower purpose of the record keeping fees and could have use of plans leverage to negotiate lower fees without sacrificing the level or quality of services those findings are undisputed so the question is what is a reasonable fee to measure the court doesn't have to take our position but it has to apply the correct legal standard for measuring loss and has to explain the reasons for its findings which didn't occur here not credible so at that point it has to you know select another method at all it's he that was you know either apparent from the record or you know reconvene the hearing for additional go through the through no banners presentation or the any other position in the record to make make a decision and you know i didn't do that adequately here well the reason it didn't do it adequately was that the dischord didn't explain the reasons for the the measure that it selected and why i found them when i found the revenue credits that used to be the best measure of loss  method in selecting was appropriate because it was he said it was based on plan characteristics asset configuration that counts on selection and number of participants doesn't that give you a basis for understanding the calculation that he selected well the revenue credits are based on those characteristics yes but that doesn't suggest that it measures the extent of the loss found that that lower fees could have been negotiated with diligent and crew negotiation so that finding is inconsistent with then to find that what fidelity voluntarily provided to the plan  characteristics was the full extent of the damages the the range of fees at that plaintiff's expert estimated thirty dollars to forty four dollars was was rejected either because the methodology was unreliable or not credible but there were other figures in the record that that backed up what he said multiple objective data points and two of those are is clients plans a and b but there are other measures used because well yes he did not use them as a basis of calculation he used them as examples of his experience and his experiences where he reached up through and pulled out his numbers isn't that correct that's right it relied on his experience and those that's what he based that the fear range on and those are the plans that he cited a and b are examples of that experience so he didn't look at these plans specifically when he's formulating a number but they are part of the experience that he necessarily your experience must be really great ok well judge doesn't doesn't have to rely on experience but then the number that he that he provided was validated by other data points and it's not it's not just the two plans what it was part of banners internal documents that that the committee had meetings and slocum presented a report that showed a banner for a three b plan is paying about forty dollars a head while the forty one dollars k plan is bank double that amount and that's there's a graphic on page thirteen of our brief that's taken from that report that shows that if you raise that below that the shooter used the other plan actually made trial as well during that argument on the defendants rule fifty two dollars a motion that if there if the primary measure provided by the expert was rejected that alternative measures should be considered and that was one of the pieces of evidence that we wanted to know what is it that the district court said it would keep it from having heard in your view that you're not saying it had to buy mr smith's numbers lock stock and barrel whereas the point of our well assuming schmidt is rejected at a minimum the court had to discuss what other damages measures a looked at and why it found the revenue credit so used to be the superior method of aust aside from what banners d c planned the th or be better plan paid the consultant slocum provided reports on what other plans were paying and that's a chart that's at page fourteen of our brief and the district court relied on that evidence and its liability findings the find now reviewing reason was presented to show ability not to have damaged well we were relied primarily on schmidt to prove damages that's right but then it was there was also advanced as an alternative if the court were to reject phase and that the plants suffered a loss as a result and that the fiduciary could have used that information to negotiate lower fees without sacrificing quality or service level and that is what the district court found it  and as an example of analysis of alternatives and dismissing count two which has not been appealed which dealt with certain investment options in the plan the district court did discuss discuss different potential measures of damages and found that none of them cause a loss whereas here it only discussed revenue credits you didn't appeal that we did not appeal that and that was an adequate it doesn't that doesn't make the plan all none neither party propose that the parties recognize that at a minimum it should be something that to do at the plant either the s and p five hundred  which the plan is presented or the plans return the plan as a whole which the defense expert and again there was no explanation of how that was an adequate measure to restore the plan and then well i'll reserve actually one other point i want to get you quickly of the prohibited transaction claim the district court that should also be well the statute eleven awaits specifically refers to service provider compensation and the fiduciary duty statute doesn't talk about compensation at all so if either were there's a stronger argument that eleven and four   operation and he was hired would that make it a different situation well he would be an insider he would also be a party in interest but i don't i don't see if he was paid a reasonable amount of fees for his services the court my name is michael timberly and i am here representing the defendants apple leave your honors to district court can't be faulted for declining to award damages according to theories that were not advanced supported by the plaintiffs particularly when those areas are based on evidence the plaintiff themselves disavowed as irrelevant and unreliable before the district judge in fact is the judge sat through an eight day bench trial and he got to know the witnesses and the record better than anybody and based on that in person evaluation he came to reasonable conclusions about who and what was believable and who and what was not concerning damages the court concluded that plaintiff's expert martin schmidt was not credible and that conclusion is entitled to substantial deference on appeal for a lot of calculation the judge was therefore left to his own devices and he did the best that he could in light of the record that was of course him in relying on the revenue credit account was within the range of reasonable options that he had to measure damages in this case why is that why was that better than his mistress lawyers two thousand and seventeen figure of forty two dollars that's i'm pretty good well your honor the plan itself changed significantly across the class period and really what we're talking about is a delta of up of almost two fold from two thousand and nine to two thousand and seventeen  d the evidence is clear throughout the record that a determination of what is a reasonable fee has to turn on the unique circumstances of the plan at the time and the fact is the plan earlier in the class period was a very different plan than it was later on in two thousand and seventeen i'd add that the fact that if he could be obtained that doesn't mean that it had to be obtained what the evidence also shows your honor is that the record both between the plan and the services firm porton to evaluating whether reasonable fia's candidly your honor and more fundamentally that argument just wasn't made to the district judge plaintiffs came forward with a single theory of measuring the loss to the plan and it was mr schmitz analysis based on his experience they then aren't you do as mr saunders noted that if the district judge rejected that particular theory their view was that the judge had to come up with his own measure and he did that and they did not however as a part of that argument say that the judge should rely on slocum's to review or rely on the four  b fees or rely on the twenty seven thousand forward piece they just said in a vague and general way look if you don't like schmidt you've got to come up with your own and that's exactly what the judge did and now having persuaded the judge to do that work for them they're complaining on appeal by raising arguments that they never presented to the judge and then give the judge an opportunity to weigh in the st instance it's a classic example of a waiver of an argument which applies here just as it does in any other circumstance just to say that the judge didn't offer sufficient explanation but of course the judge has no obligation to explain why series of damages that were never presented to him were inadequate so why why was the r c a adequate fact i think everything he says throughout the remainder of the opinion is quite clear that these services are really planned specific there's condor paragraph ten thousand one hundred and ninety one where he's at the level and scope of services vary depending on the circumstances of both the plane and the provider at paragraph one hundred and eighty three the judge note that schmidt himself testified that one cannot and should not rely on data concerning other plan unique characteristics and needs of the plan and at paragraph one hundred and eighty six the judge recognized that the service and quality of the record keeping in the ministry of services provided by fidelity to the program were uniquely tailored to the banner plan that makes looking at other comparable hours not especially useful and at least a judge with the question then what is the most accurate way of determining what a specific measure of damages is and that answers the revenue credited count because of course the revenue credit account was tailored to that situation it was the account that banner itself received when they are caps the record keeper will take the revenue but it will then create a revenue credit account just as it did here that revenue credit account is then used by the plan to debit for plane expenses again just like the revenue credit accounts here so in february two thousand and twelve when the parties established the revenue credit account it was effectively converting to something like a capped revenue sharing model and that is what the district judge in effect said would have been reasonable under the circumstances had there not been the breach that he found with respect to monitoring the records he concedes that means as long as being or was receiving the revenue credit there were no damages and for those years was most advantageous play well your honor respectfully i don't think that's the question that the that this court on appeal should be asking the my my friend on the other side makes the argument that the judge was duty bound to find the very most generous measure of damages in fact the case especially cites for that proposition starting with the nd circuit's decision in beer worth seen for the proposition that when when there is a lack of clarity or where there are multiple plausible ways of measuring damages that have proved been presented to the judge argued by the parties supported by evidence the judge in in determining which among the options to select should select the one that most favors the beneficiaries and if in turn the fiduciary have reasons to argue that less generous measures are more appropriate the burden is on them to prove it here this is not a case where the parties were fighting over what is the most relevant or appropriate model there was just one theory put forward by the plaintiffs and that theory was rejected not because it was too fancy but because it w completely incredible and unreliable so the judge was put in a position where he really had nothing to go having rejected schmidt's opinion on what the last calculation was and was therefore put in a position of having to determine based on his own understanding intimate understanding reflected in one hundred and thirty six page opinion of what the record indicated was the most appropriate were really i i should step back in appropriate measure of damages and so i don't have to reject your honor respectfully the notion that it was on the judge to sift through the evidence and come up with potentially more generous acts generous methods of measuring laws and justify why he didn't adopt a dop to those alternative measures because those measures were never are doing him and it was it was not his obligation as the judge to do that work i would i would mention also judge kelly started out with a question about standard of view my friend on the other side says that the question of how to measure the loss is a legal question reviewed a novel but then he described the measure of the law says what being in a would have paid without the breach that is exactly the question that the district court in answered so that the question of what the standard is is not really the issue before a court it is instead the factual issue based on the record what is in fact the answer to that question and that is a fact question reviewed by this court for clear error and with might with respect to my friend on the other side nothing in his briefing comes close to showing that this court ought to or reject the district judge is a determination of what an appropriate last measure is as a matter of clear error if i may say a brief word about or me at appendix page six hundred and eight that it would be inappropriate and quote didn't make sense to use the actual rate of return as the measure of pre print judgment  interest in addition in fact there's nothing in the record providing that sort of fulsome weighted analysis of well what the rate of return was so here again the district judge is presented with the s and p five hundred he rejects that as an appropriate measure because there were funds in the in the plan that were not correlated with the s and p five hundred he has an expert telling him you can't rely on the actual fund performance and he's again left to his own devices reason for the judge to conclude that it is affirmatively inappropriate that it is outside the range of permissible choices that were available to him to reverse on the selection of the i r s free is it conceivable that to the judge again the theory that was put before the judge whether the s and p five hundred the judge concluded at paragraph ninety six to ninety seven that that wasn't appropriate so here again without guidance from the plaintiffs about what required to explain why he rejected other possible rates i would say your honor again because it just wasn't raised to him judges under rule fifty two a do not have an obligation to suss out all the protect all the potential arguments that could have been made in favor of alternatives that were not actually presented what if if plaintiffs had argued these alternative theories that would be a different story but not having done so we'll fifty two it doesn't require that sort of analysis i see i have about thirty seconds left i'm happy to say something about private transaction questions otherwise will rest on our papers