requires that claims for breach of fiduciary duty be brought within three years of when the plaintiff st had actual knowledge of the breach in two thousand and fifteen the response only masoud claiming that his retirement plans imprudently over invested in hedge funds and commodities but more than three years before that suit was filed salema received plan disclosures that apprised him of the precise investment allocations he later claimed were imprudent the th circuit held that those disclosures w not trigger the three year bar because salema testified that he had not read them and intel therefore had not established that he had subjective awareness of what was disclosed the th circuit was wrong to read the statute to require proof of subjective awareness under section  dollars to plan participants have actual knowledge of facts that are actually given to them and mandatory to receive disclosures that reading respect to resist text and the statutory emphasis on the structural emphasis in the statute on robust disclosure by plan for the aires and private policing by plan participants the th circuit's reading up ends that balance it effectively doubles from three to six years the period in which plaintiffs can exploit hindsight bias to nd guess investments even one plans have fully disclosed the basis for those investments and it introduces arbitrariness and intractable proof problems now one way to bring the correct interpretation of section one thousand one hundred and thirty two into focus is by had actual knowledge of the breach or when the plan filed with the department of labor a report then included facts from which participant could reasonably learn of the facts of the breach now if you read the statute in the way that the th circuit read it it doesn't make any sense as it was originally an act that because the three year period would be triggered in a situation in which the plant disclosed to the department of labor the facts that established the breach but not when the when the plan disclosed to the plan participants themselves in mandatory disclosures the very same facts that would trigger it if provided to the department of labor that just doesn't make any sense of the statute our reading in contrast makes perfect sense of the statute and if i could i will start with the text and and and and i think i'm trying to take a minute and explain why we've got a perfectly reasonable linguistic word of the statutes of past tense had but he has in his possession a bought the body of knowledge contained in the disclosures he possesses that knowledge and that's the knowledge he actually has most people don't read them you know i are many many people don't read them so how do you have actual knowledge if you haven't read yet so i doubt that you know i don't know that that's correct i think actually with respect to these kinds of documents for the group of people who don't read them how can you say that they have actual knowledge that they haven't read something so i think the reason is because the the phrase actual knowledge in this context in particular but that frankly in any context isn't limited to subjective awareness in the way that the  th circuit limited it and i think that the willful blindness doctrine demonstrates that we  knowledge means in this statue it's important to think about it in context and it's really the idea of taking the phrase actual knowledge and treating it in this context as though it means the same thing in the other context in which it's use is a mistake this is really a unicorn when it comes to statues and one limitations this is the only place in the united states code that we could find the phrase actual knowledge using the statue of limitations and our friends on the other side haven't identified any state statute of limitations that uses the phrase actual knowledge either it's really i think you're about to push back on justice cavanagh's assertion that people don't read these do you have any any is there any reason for us to opposite of what i gather is a common personal experience so are i won't i won't ask for a show of hands but do you have any reason to suppose that many people are yes yes i do i mean what what is that it's what i do think that this is important information for many people this information about how their retirement plans are going to be other retirement funds are going to me invest it is very important many people and i'm sure i'm sure i mean depends on if it's the fact is important but whether people think the information is important i'm just not well i'd be surprised i mean it's one of those in the more and more disclosures that are required the less and less likely it is that people are going to look at them and it seems to me that your argument depends upon the assumption that these are actually going to be read so that we would dispense with the requirement of showing that they were actually read because we assume that they were most often actually read and i just don't think that's an accurate assumption i don't think i don't think argument does depend on that assumption i think that the congress set this system up in one thousand nine hundred and seventy four it make clear that disclosure regime was a very important part of the regulatory of the regulatory program and the point is congress said in one thousand and seventy four of these robust disclosures was to give plan participants the information they would need to police the ir rights and so when congress and that that's what the senate report says in one thousand and seventy four repeatedly and of course in ninety seven before congress also granted a private right of action to plan participants to sue for breach of fiduciary duty so i do think the system was set up on the understanding that this was important information and had to be conveyed to plan participants according to the statute and it's implementing regulations in a manner that was readily comprehensible so that the average plan participant could understand it and could take action as necessary to police his or her rights so i do think that the that the understanding that congress is operating under here is that people do read these do do read these disclosures when they come in if one looks at the for example the e mail that  can see this at page i think one hundred and forty nine of the joint appendix with respect to the qualified default investment alternative disclosure he gets an e mail says is that the headings is important information about your retirement plan and it contains a link and the link says the answer is you should read the document in this link and if you click on the link it takes you not to some big giant document but to an eight or ten page document that describes the investments in the various target fun plans and if one looks at page two hundred and thirty six dollars of the joint appendix and will see it for mr salinas plan it specifically says the target asset allocation this fund is ten percent bond funds and short term investments sixty percent equity funds twenty five percent hedge funds and five percent commodities that's the precise thing he says is a breach of for you share your duty and i mean and the precise thing that he says is a preacher for their share duty and it's disclosed and right there in this document mr really what role does willful blindness play in your argument are you claiming that anybody who doesn't read these documents is being willfully blind nor is there a different argument the jamaican no one we're making a different argument and it and it is why i said mr chief justice that i thought our argument didn't depend on the empirical assumption that people everyone actually reach these these documents when i get them willful blindness is is not constructive knowledge willful blindness is a form of actual knowledge and that's how this court addressed it in global tech and global technique or so the court struggled and the patent inducement context to decide st whether the inducement cause of action required proof of actual knowledge or proof or constructive knowledge it concluded it required proof of actual knowledge and then the court went on to say but actual knowledge can be satisfied by proof of willful blindness and what that demonstrates is using it by analogy to demonstrate the point that the outer boundary of actual knowledge is not subjective awareness which is the standard that the th circuit adopted that there are circumstances in which the court as a by operational law will recognise that something other than subjective awareness can satisfy an actual knowledge then i would have thought about it a little bit differently not that the willful blindness is satisfying the actual knowledge inquiry but rather that because you've been willfully blind because you've deliberately ignored some piece of evidence we will treat it as if you actually know but but still that willful blindness is a is a different thing it's just that given your intent we're going to treat it as one in the same but i think the way i would we would give that a little bit of a different nuance your honor is that i think with respect to willful blindness what you're saying is even a situation where it's not possible to prove because of their bad intent shall we say they're saying i'm purposely not going to know this right but here you're saying not everybody who has actually knowledge or just overly blind in that way that's that's correct but i think that but we're not what we're saying is that by analogy once you think here about the context because what's happened with this actual knowledge soon as i said this is the only statute limitations we can find in which it exists it's in the overwhelming number of situations in which it exists are the ones that we've been talking about here situations in which you're trying to ascertain the level of culpability in a criminal action or an enforcement action so that transplanting it into a totally different environment here and then not only that but normally in statutes of limitations when you when there's a knowledge element in a statue of limitations and something that works to the benefit of the plaintiffs in typical statute of limitations it's a statute run six years from a certain act or occurrence but it will be either the later of that or three years after the plaintive has or should have had knowledge here or the knowledge requirement is in it is operating for a totally different reason it's in the statute to protect the interests of the defendant it takes the six year period repose and cuts in and half want to plaintiff has actual knowledge and i submit that and that therefore the right way to think about this is like thinking about this in terms of the interest that this provision is in the statute to advance in the interest that it's in the statute to advance it seems to me are precinct up perfectly with the disclosure requirements that the that the statute imposes on a plan for do share if the statute has had should have had with that characterization we think the word actual does real and substantial work in our reading of the statute we're not arguing that you should read this language as though it were a broad constructive knowledge standard a broad construct of nonstandard would be a new or should have known standard and if it were a broad construct of knowledge standard then the disclosure of the information to the planned participant even if the information disclosed itself wouldn't establish the facts of a breach of their duty if it put the plant participant on notice such that a reasonable person would inquire further that would be a constructive knowledge a should have known standard does identity like your client have the ability to determine whether someone to whom one of these emails with a link is sent has opened up feeling so we with respect to this you know in this case know generally it's difficult to know that certainly intel would have the ability to do that when you could i think yes i think it would be very difficult and time consuming and i don't think it would change that issue because i think even if we could establish that the that the plant participant clicked on the link then the than the arguments going to be the same argus can react clicked on it but i didn't read it or i read it but i didn't remember it and therefore i don't have the subjective awareness of the th circuit said is required and so i don't think when i understand why you might think that that's a solution your honor but i don't think it is i think it just shifts the problem over a little bit but it's see it's the exact same problem i think it points up why the right way to read this statute now we aren't we are arguing for an input imputation of knowledge not an empirical assumption we are doing that but we're doing that because we think that is the most sensible way to sync up what the statute has done here which is to impose a very robust disclosure set of disclosure obligations for the purpose of giving plan participants the ability to police their rights why isn't it a way sorry why is it the way to think about this that as you say this is an unusual provision and you make a lot of strong policy arguments but for whatever reason in the amendment of the statute  just came out in as actual knowledge and it's an unusual statute but we stick to the words of the statute and congress can of course fix it to bring it in line with the other construct of knowledge statutes of congress  chooses but we shouldn't rewrite it ourselves what's wrong with thinking about this that way well your honor and in gates court concluded that fish was not a tangible object even though in ordinary english it's obviously a tangible object you can hold your hand and brown and williamson the court concluded that nicotine was not a drug for purposes of the drug and cosmetic act even though common understanding but if we start over so i guess i would say that i don't think it's rewriting the statute at all it's taking it's what it's doing is reading those words in context in order to make sense of the statue as a whole which is exactly the analysis and gates and brown and williamson and last term in jackson with respect to what the word defendant means and can conspire well and it's that all we're urging is the court applied that same way don't take the words in isolation and just look them up in the dictionary and particularly don't do it here because this is this actual knowledge standard that my friends on the other side are transplanting here what they're transplanting is a body of of law that applies in a totally different context that doesn't have anything to do with a regime of disclosure  statute of limitations it's about assessing personal cop ability in the criminal and foresman context and in this context i think that you've got to read these words in conjunction with what if we if we were to say what you want to say here actual knowledge is in effect a form of constructive knowledge that could open up all sorts of problems and other statutes down the road that we can't even foresee here where the argument would be the construct of knowledge is enough to satisfy a knowledge requirement i don't know i don't think so for two reasons your honor st we're not asking you to adopt a constructive knowledge standard we're actually asking you to interpret the words actual knowledge to include the information the knowledge that is transmitted to the information is made known to the plan participants through that sounds like  knowledge to me i don't think so your honor in the same way that you might say the same thing about willful blindness being constructed knowledge but but i think it's an it is it is an imputation to be sure but it's an imputation with that's legitimately within the meaning of the words actual knowledge and the other thing i would point out yonder is that you know until the th circuit ruled in this case the rule that everybody's been living under a risk is our rule this is the way the courts had uniformly interpreted it until the th circuit in this case everybody understood consensus in the district courts which actually got to grapple with this issue as a practical matter and case after case after case they've all come to the conclusion that you should read the actual knowledge standard to be satisfied when you can demonstrate that the that the plan many district courts so i think there are i don't know the exact number of top my head but i think it's at least a half a dozen or so maybe more than that there grappled with it and they will come to that conclusion and so and i think there's a reason for that because it's it's an understanding of the way the system is supposed to work is that planned part plan participants are supposed to be apprised of the information they need to in the words of the senate report nine hundred and seventy four police their rights and the way and they're given an express private but i think whoever handled this case bill though was asked whether a comatose person who received an e mail with this plan disclosure with that person had actual knowledge could you answer that question who never open emails or only open emails from certain individuals or in certain situations so under your theory of the case those people the knowledge is i lee because they received the email so take the comment post person st that i think in extreme cases like that the way the law would handle it is the way the law always handles it through the doctrine of equitable tolling in a situation you can't imagine that equitable tolling wouldn't apply in that kind of an extreme case now i will say how about handling it through the language of the statute actual knowledge that person doesn't have an actual well i think but then the  problem with reading it that way is you create a situation in which there can never be summary judgment in one of these cases with respect to the three year statute with the patients and so you're imposing a very substantial bur plenty of e mails that i get that require me to say that i for at the terms of conditions on it but i think that what the what the plaintiff your honor wouldn't do this but what a plaintiff would do in that situation i think would say yes i clicked on the box but i didn't actually read them so i didn't actually have knowledge and i do think that points up something about the argue my friends on the other side make that the same page when their brief well if you read it you have actual knowledge but you don't actually have proof if you're right it doesn't  in all circumstances or people's ability to recollect whether they read things forty five and six years earlier i think is going to be you know if they didn't read it i mean you've been you've heard the argument i mean given that they didn't read it what why should they i mean these are ordinary workers across the country they don't read everything and if they didn't read it then they didn't read it then it's six years they have why is that a problem well i think it's a problem for for i can think of at least three reasons why it's a problem you're going to you're taking the period in which a plan is subject to hindsight bias with respect to its investment decisions and doubling it from three years to six years which means not only are the plans going to be vulnerable to litigation over that whole six year period but the amount of damages could be considerably higher i would think anything in a case we're talking about which if you do share duty what you'd want is an intervention sooner rather than later to get to to cure the breach so that seems to me a very substantial prominent problem that a nurse to the detriment of planned participants of course because those are costs to the plan and those and that kind of excessive liability can discourage the creations of plans in the st place which is why this court has always said you try to have to approach of ricin a balance where the plaintiff testifies yes i did read it yes i did remember it but in most cases it's going to be inferences from circumstantial evidence and i think it's going to be some courts going one way based on inference and circumstantial evidence other courts going a different way based on  inference is from the same kind of st well i you know i suppose it would be evidence like we had in this case that that the the plaintiff visited the web site sixty eight times and clicked on a one thousand links sent and clicked on in particular on a link that said street so i guess i'm wondering what what cut to these policy arguments have you're not suggesting that an irrational congress only an irrational congress could could come up with a scheme in which six years is the backstop such that  it's beyond the pale to imagine a congress that i would put the scheme that would require thank you so just course it was with respect to that i think that you have to impart the rationality to congress also with respect to the three years that it's in there for a reason and reason is to protect plans when they have both sides agree that there's a reason for it they just disagree what that reason is but i think i got respectfully what i suggested was where we're suggesting a real reason that makes you mr chief justice it may have please the court when congress said that a plaintiff must have actual knowledge and meant what we all understand that phrase to mean that the plaintiff himself must have real awareness the ordinary definition of actual knowledge controls here because it accords with the fundamental rule that statutory interpretation begins and often ends with the plain meaning of the text congress chose to require actual knowledge not constructive knowledge before the general six year limitations period for breach of fiduciary duty claims will be cut half and that deliberate decision must be honored now the common sense of stinks and i think is all that's necessary to resolve this case but there are important reasons as i think i heard just just now for why congress would have made the choice to require actual knowledge here setting the bar high before the six year limitations period will be cut in half reflects what i think is a basic real world fact most people don't read these complicated financial disclosures cover to cover if you open the joint appendix to almost any page you can see why these documents are chock a block full of dense financial market projections asset allocations and other jargon people with busy lives and with little or no financial investment experience or training are not poring over these disclosure interest most people trust that their fiduciary is are not breaching their obligations given that real world understanding i think it's perfectly sensible that congress decided not to start the three year clock running the moment a participant receives these disclosure and and i want to emphasize this i think it's all the more true because the general six year period does provide a concrete cutoff for most breach of duty claims and that six year cutoff is among the shortest general limitations period in and thirteen dollars congress set an important balance although there's a high bar to trigger the three year exception fiduciary is can count on six years being the outside limit and there is almost no other limitations per provision in a risk that provides this plaintiff says i didn't read it that one has to accept that i mean how how can the veracity of that statement be kathy well i think that there are a number of ways i do think that a plaintiff if the plaintiff did not read a statement that is likely enough to survive summary judgment and take this question to a fact finder in the same way justice ginsburg that all sorts of facts specific questions that come up in the context statute of limitations are not amenable to summary judgment but of course as was surfaced in the st half of this argument it is entirely possible that circumstantial evidence would prove that a plaintiff either read or knew of a contain what you say is the relevant information and throughout the entire course of this litigation up through now the that the defendants were never able to come forward with specific page views to contradict that testimony but your position is even with all that evidence  your client would not be subject to summary judgment i think there would be a disputed issue of fact at that point that would reach would have to go to a fact finder that's correct but again i don't think that's any different from the way fact issues come what you make of everything that you've said makes a good policy argument for saying let's just have a six year period because people don't read these things and they're there are hard to understand but why would congress added to the six year statute of repose this requirement of actual knowledge which is very unusual in the state and statutes of limitations and will almost always prevent summary judgment or almost always raise a difficult factual question that requires the district court to make a credibility determination but why would that be former congress think that's worthwhile so of course we don't know because there is no relevant legist his legislative history that cuts one way or the other on this question but i think it's worth emphasizing that this statute covers a broad range of different kinds of breach of duty claims triggers an incentivizes that co for the sherry to come forward and bring a claim to minimize the losses to the plant that's an example of a kind of claim that would be subject to this three years exception and wouldn't require any kind of you know fact dispute about what the coproducer a new because they were involved in the decision making the same is true your honor for claims that arise when one party is subject to the transaction that forms the basis of the breach right there is a whole range of prohibited transactions where the transaction itself honored by by by this court because it used the plaintext actual knowledge which i think as we all sort of understand is is defined in contradistinction to a rule that would allow a court to imply or impute knowledge to a person who does not themselves purr it's delicious suppose a plaintive says you know i did read it i just didn't understand it does that always get yes i don't think reading is sufficient to establish knowledge now as this case comes to the court though the petitioners  court to assume that had one just read all the relevant disclosures in this case that reading would have imparted the necessary knowledge to know that there was a breach and so i don't think that the court needs to reach this question of how much did you need to read or how much did you need to understand what a view is if if somebody said just i didn't get it i think that's that's insufficient to meet this high bar so i don't think that if i don't think that you could come in and say i just read it and that would be enough if you didn't understand it you didn't know it but again as as this as a question has been presented to the court the only issue is whether actual knowledge means you knew it or you can the court can conclude as a matter of law that even though  someone didn't read it they nevertheless have actual knowledge thing they knew you know i read it and i saw where they were investing but i didn't really understand the nature of these companies they were investing him with that be enough i don't think so you honor i think that it depends on the need so that this is meaningless the actual knowledge mean no not at all it absolutely depends on the nature of the of the kind of breach claim that is it issue in the case again this statute covers a broad range of different kinds of claims in assets from my account to morrow a fiduciary fails to liquidate the assets and there's a resulting loss well if the the participant in that case has actual knowledge that there's been a breach and the three year clock is ticking but what congress didn't want to have happen is exactly what the petitioners are asking this to do which is to allow fiduciary is to stick into these documents sentences paragraphs that will never be read and as a result have this three year exception ticking before anybody really what about going on mr west or just coming back to the circumstances of this case or or the context of this case how about a person who says i read it i thought i understood it i didn't what i didn't really get was that it could be the foundation of  this i think separate question that is not in front of the court right now which is justice kagan what you've identified how much do you need to know that there's been a breach of a recess now i think the th circuit articulated the correct standard in this case but this court is not being asked in this case to decide that question because as again as i said at the petitioners are framed this question they've asked the court to assume that all the relevant information was contained in the disclosures and that had a participant read those disclosures they would have the to the statute of limitations could affect class certification and i think rule twenty three has mechanisms that are designed precisely to assist courts in making those decisions but i think that's a rule twenty three question not a question about how and all sorts of context in this this question what does an individual know and when it doesn't just come up in this context it comes up in all sorts of limitations periods questions equitable tolling actual knowledge in a statute that says actually knew or should have known where what's at issue is an individual's actual knowledge and courts have developed methods to determine whether for instance the named plaintiff is adequate or typical or whether those individual lies issues might affect the ong well listen to this there is here is nothing virtually nothing of fun can do to make certain that a member of the or someone who has interests in the work or actually does know about a bad investment decision which is a big class of things not the one sure nothing they can put someone on the lawn shouting i shudder to think about the telephone calls you must listen to that you know not even that will work thank goodness but but therefore used to be that were this legislation in a senate committee there would be a report and the report would be this particular provision is likely to make a difference in the cases you mention but it is not likely to make much difference in cases of bad investment decisions and there we intend six years statute of limitations so my question is you probably look into this maybe not anymore but i'd hope you'd look into it and is there anything in that history that says that that's what we want we want six year statutes of limitations for bad investment decisions will take three years statutes where he was for example and then you have the six examples you get so anything you know we have no i mean no one has been able to i mean i would like to tell you a different answer but i can't there there's nothing in the history that suggests one way or the other what congress had in mind specifically when it adopted this framework but i will say i think that the nine hundred and eighty seven amendments which you know you heard a little bit about  during the st half of the argument indicate pretty strongly that congress wanted to remove the one mechanism it had in place in this statute to start the clock running for a broader set of claims which is the construct knowledge trigger well what about mr burrell is argument that that would have seemed in the original version would have seemed a bit insane right if if if the secretary knows you can't do that if you have gotten the rights closure then you this provision that governed those disclosures that needed to be sent to participants and those disclosures that needed to be sent to the department of labor it was in effect all the way up through the one thousand nine hundred and seven amendments those documents that were required to be sent to participants including the s p d and a statement of the plans assets and liabilities were among all among the documents that were also being sent to the department of labor so under the preeminent version even if you kind of think maybe congress is doing something funky with actual knowledge participants were in fact charged with constructive knowledge of all the documents at arista required to do sherry's to send to them in exactly the same way as the department of labor was had constructed knowledge of the documents that were being provided to it so there's no gap between the constructive knowledge trigger for those documents provided to participants and those that are provided to the department of labor and i think you know what we can see given that is that you know although there is no legislative history we do have this d c circuit opinion called think which the court issued about a year before the nine hundred and eighty seven dollars amendments and and what they said what the court said in fink is look these documents that are being filed with the department of labor they're complex they're complicated it's even hard for the department to to get on top of everything that's going on here to have the clock running on this three year exception based just on the filing of these documents doesn't seem to us to make very good sense and shortly after that opinion what happens congress amends the statute to take out that construct of knowledge everything that was everything that was sent to the hartmann of labor was also sent to the participants was anything sent to the department of labor that wasn't  the universe of documents that went to the department labor was broader than those documents that were being sent to participants but what the participants were getting was also being sent to the department well if what was sent to the department of labor was broader i don't know what's left of your argument because the participants would be out of court based on things that were sent to the department of labor but never sent to them i agree i think that in the on the on the older version i don't agree that that's the end for us but i agree that under the old version of this statute participants were who were being charged with knowledge of documents that they themselves were not receiving but i don't take the petitioners here to be arguing that the fact that the department of labor was getting more documents suggest th language that congress used when it what it had in mind when it used actual knowledge was something other than the ordinary meaning of that term i think the argument in their view is how how would it make sense if the participants were getting documents and didn't have any constructive knowledge being assessed against them based on those documents that i think it it is not borne out based on the original version of the statute that was in place up through the amendments i think just to return to the one kind of final point i'd like to make which is that when you boil it petitioners argument amounts to a theory that actual knowledge really means implied actual knowledge a court can imply something even if an individual personally doesn't have it but that's about  cases of willful blindness i mean suppose somebody says you know i am specifically not going to read this because i want to keep my three year statute of limitations right so i mean just to be clear willful blindness all it is i jury instruction so it doesn't permit a court to impute as a matter of law anything about an individual's knowledge it's the ostrich instruction you know you stuck your head in the sand and a jury gets to decide as if as the fact finder although here would be  a judge because we're in a risk you know whether who's credibility who is credible and what that actually means but i will say congress knows how to adopt willful blindness into a knowledge statute has done so on many occasions it right statute that says you either have actual instruction and my understanding is similar that it's it can be evidence of actual knowledge yes right that if someone protests too much that they have failed that they don't know anything about it i was i had my head stuck in the sand over here a reasonable juror can say i just don't believe that that's actually evidence that you knew what was going on and you're not suggesting that that kind of use of willful blindness is impermissible here are you i think that just just a back up since we're in a risk you know you wouldn't be in front of a jury of course have taken this fact granted and i think absolutely at that stage credibility plays an enormous role and likely will play an enormous role in whether somebody was was either not being accurate when they said they didn't read something or that they didn't understand it and i think that's precisely the way that these statutes of limitations issues get resolved when they pass through  and my phone for not expressing the question clearly enough but does one get past the summary judgement stage if it's clear that one was being willfully blind i still think that there's a yes because i still think there's a credibility issue in play and willful blindness itself is a fact finding tool it's a it's an incident struction to the fact finder to draw inferences about an individual's behavior conduct can i follow up on one question justice ginsburg asked i mean we we don't agree with that characterization and it may be that in certain cases individualized issues will pose difficulties for certifying classes you can find that across the range of statutes of limitations issues when they arise at the rule twenty three dollars stage but to say as a as a matter of that it's a categorical rule that would be true is i think inaccurate and would i think undermine the point of rule twenty three itself thank you counsel knowledge the plaintiff's knowledge must exist as a matter of fact knowledge that is imputed or implied to the plaintiff as a matter of law does not suffice that is what actual means in this context if that standard is not met then the disclosures that the plaintiff receives at the precise moment that the plaintiff receives them even if the plaintiff's indisputable never read those disclosures that approach cannot be squared with the language of the statute in ordinary english no one would say that a person has actual knowledge of the contents of a document that the person has never read so to hear the three year period begins to run only when a plaintive is in fact aware of the relevant information constructive knowledge is not  t how far do you go with the requirement of actual knowledge of the question was asked earlier do you have to understand what the words mean yes we already do mr chief so even if it's an abuse you say you have actual knowledge of the significance of the information even though you don't know what a leverage a diversified you know whatever it is as a general matter and stature requires knowledge and we think knowledge connotes that there has to be some degree of comprehension now as mr wessler alluded to earlier there is a distinct question not presented here which is you know what you need to have actual knowledge of what does that mean to have actual knowledge of the breach or violation but at least with respect to the question here i mean the statute requires actual knowledge and we think that means you have to sort of actually be aware of the relevant information one can imagine to take a simple example one can imagine a circumstance in which the plan for to spent does not speak english and receives disclosures that are written in english and in that case i think it would be silly to say that the plan for spending on the law should be conclusively presumed to have actual knowledge of the contents of disclosures that by hypothesis that point it would not have understood even place to follow through on the justice or the chief justice is question i am reading an actual knowledge of the breach sure violation let's assume someone read it go to the justice earlier questions someone read it and says i didn't understand it was a breach i didn't understand it was a violation if you do not i read the facts i read it i saw it i  exactly what was here the distribution of investment here well if you do not understand the disclosures that you ever see we do not think that as a matter of ordinary english you can be said to have actual knowledge of the contents of  those disclosures now stepping back as a general matter with respect to that separate question that i alluded to earlier what is the breach or violation what is it that you have to have actual knowledge of in every court two of them and that has concluded that you do not need to have  knowledge that is a wiggle violation of a recess so we don't think the standard to go that far but you know if that if the testimony is if the evidence is that the plaintiffs says you know i looked at that disclosure but i did not understand the import of the terms used knowledge of the contents of the disclosure statement so that would suggest that your position has to go even further that you have to have actual knowledge of the breach meaning that you need to know that you know whatever investment standard the idea is that the plaintiff has to have actual knowledge of the essential nature of the preacher violation that makes sense or a guess i'm just pointing out that it's not there i mean if you're really taking the text seriously i think you would come out in a different place well we are trying to take the text quite seriously and we do think congress use persuasive language and in this particular limitations provision which requires actual knowledge as opposed to simply knowledge but you know to know that there is a breach i think in this context same would be true for claim sounding in the duty of loyalty or prohibited transactions need to know sort of the essential nature of the wrongdoing but not that it violated to recite look you have a strong textual argument there's no question about that but even putting aside the issue of whether  the potential plaintiff has to know that it was a breach even assuming that all the plaintiff has to know are the facts constituting the breach why would congress think it was worthwhile to put this actual knowledge requirement in why not just have the six year period in recognition of the fact that a lot of people maybe most people maybe nearly everybody doesn't read these things doesn't understand them why is it worth the effort what justice alito i think the statute reflects the following intuition i mean the the the six year provision really is the backstop so in general you have six years from the preacher violation in order to bring suit the three year provision only comes into play if the plaint honest plaintiffs who is an expert on investments and actually did read it and act actually did understand it and testifies yeah ok you got me i did it what else is this going cheve the is that the plaintiffs who does happen to acquire actual knowledge of the relevant information within those st three years can be expected to bring suit within three years and did not need the full six year period in which to bring suit i think mr going to keep going there are there are  reasons that congress would not have wanted a plaintiff in those circumstances the plaintiffs who really does have actual knowledge to delay bringing suit delaying bringing many of these suits are brought for the benefit of the plan as a whole and a delay of substantial period time  time can redound to the disadvantage of other plant participants who would have been better served had the soup and broader earlier i think that's the basic logic of having the two standards in the set i think mr really is point though is that it's impossible to prove actual knowledge under the answers that have been given here and therefore you end up with a de facto six year statue of limitations which is very unusual a long period of time and it would cause a lot of negative consequences he says and therefore that context means that we must be reading actual knowledge wrong so well i never spawn of course we disagree with mr burley's articulation of the policy balance that's at issue here but just to take the question on directly there are many reported decision applying the actual knowledge to enter to find a suit is time barred even under the correct understanding of the statute meaning the knowledge must in fact be actual and not merely imputed to the plaintiff as a matter of law now give me an example where that could be done on summary judg a real world realistic example of where that could be done on summary judgment well for example i mean a common fact pattern is that a planned participant will consult with another financial professional who will explain to the plan for to spend you know the investments that are in your retirement fund are imprudent for someone in your circumstances a conversation like that would give that pointed actual knowledge of the breach or violation if the claim is that the investment was improving so and that's not fanciful there are cases like that so it's not the case that rejecting the rule the petitioners advocate here would make the three year limitations period analyse it does have real force an effect and it has had a real force an effect in the many circuits that have adopted the correct interpretation of the statu and on that point i'd like to address one claim that mr mueller when you make sure to address justice ginsburg's class certification question before you finish short well i entirely agree with mr russert answer on that question i mean in general the fact that you may have an individualized limitations defense with respect to some members of a putative class would not necessarily foreclose certification of a class i mean in the same way you might have a release in settlement defense with respect to some plaintiffs or not and not others the injuries may be different for members of the class the fact that there are except if you think that the actual knowledge issue would be satisfied requirement in most cases in other words there would be few members of the  purported class action because most people are not going to have actual knowledge well i think in general the world twenty three question would be whether the injuries asserted by the plaintiffs are amenable to class white treatment and the fact that there is a defense that might be a pleasurable to some but not  in particular to the question that justice gorsuch asked me at the end of my opening argument i think what we heard from my friends on the other side here is that there's two things st that the with respect to the  seventy four statute the extreme anomaly that i identified is there that it doesn't make any sense to think that the statute that congress would have adopted a statute that said the three year statute of limitations going to be triggered based on the information provided to the oh well but not in the information i'm sorry mr very early on i went back to that statute and what it says on which your report from which he could reasonably be expected to have obtained knowledge of such  i read that is potentially excluding those documents that only the secretary has that i think your adversary was right that the documents that the individual received could give them reasonably any any knowledge provision triggered by the disclosure that went to the individual because everything that went to the deal well was going to trigger the three years anyway and i think if you think about that for a minute that blows up their whole theory of the statute because what they're saying is in  four congress enacted a statute was actually quite harsh but that the fault was going to be a three year statute of limitations of the information sufficient to show breach was sent to deal well whether you got it or not you would actually be the odd case that was the six years under that theory not about class action impact here i do think what my friends on the other side are saying essentially is that they didn't put it exactly this way they spoke at a higher level abstraction but basically what they're saying is here's what will happen in class actions you'll just defer the question of whether there's a statue imitation defense to the remedial face and then you'll have trials at the remedial phase or a class action about whether every single one of the class members had this actual knowledge or not based on these kinds of circumstantial proof that we were talking about just think of what a catastrophe that's going to be in the class action context so in the unlikely event that this court disagrees with our position on the merits i would hope that there would be clarity here as to how this this reading will play out in a class action context because that would be a staggering and norma's negative consequence after all it does put the cart before the horse because statute of limitations is a threshold offense and so the idea that you would do it in that manner i think is just i just it's a catastrophic problem and then with respect to the discussion the colloquy on willful blindness i understand my friend's position that it's just a jury instruction that allows an inference of actual knowledge but respectfully i don't think that's the way this court described it in the global tech decision the court basically said as i recall botak that and that it's not that proof of willful blindness proof of the circumstances that would allow you to establish willful blindness is not proof of subjective awareness but it's something that you might consider as being just as culpable or that or that they in effect have actual knowledge but not that they actually actual know imputation i just think that's as clear as can be from what this court said global tech and so i think the question here is whether in this very different context where you know as i said these actual knowledge standards come virtually exclusively from criminal law enforcement procedures where you're trying to measure the in vidual defend this couple one billion of course there should be a an inquiry in that situation into the specific state of mind of the defendant that's what the whole culpability inquiries about here you're talking about a statute of limitations and in particular  fish a statue of limitations of design this three year period to protect the interests of defendants and showed support the balance of those interests in reading statute thank you thank you counsel but cases submitted