district court made findings that make clear that they were that that is correct it's not the basis of the finding of liability but it is correct i would just to address those really quickly in terms of their supposed exercise of of discretion or control the district court made to findings it found that in november early november of two thousand and eight appellants exercised control by directing the from two entities it went from severstal and went from w h x they both sent letters to citibank directing citibank to transfer and the exact wording is all of the assets in the neuberger berman account they didn't direct the transfer of a proportionate share or anything like that they said all of the assets so that direction did not come from appellants and in fact nancy cronenberg who was the citibank which was the trustee officer responsible for dealing with both of these accounts at that time said she wouldn't have taken the directions from appellants they had no authority in her in her on march twenty fourth two thousand and nine when mr lebow told neuberger berman sell off the assets which are in the neuberger berman account and that is an exercise of authority however no one has testified that it was an improper exercise with already and the reason it didn't occur until march twenty fourth two thousand and nine is that in february there's a training account until march twentieth which was a friday late friday afternoon on monday the market went crazy one way up on march twenty fourth beginning of the day mr  sal so in terms of the just to be clear as to to the structure of what we're saying i take it that this is all an argument that the district court's factual findings that would sharee relationship under someone or you'll get to some three eventually are clearly erroneous it is not an argument that we should only look at two because that's what the district where it hung its hand on that if it's in other words my initial question to you was was more limited which is just is it enough that the district court made the factual findings that would support your client's being fiduciary is under a one and a three without the district court having attributed that as the reason for it judgment and i take it you're not really disputing that the district court did effectively find that your clients were produced trees under all three sections you're just saying but two of them are not just saying they're setting it importantly that two of those sets of findings are incorrect that is correct that the court i guess i found this will be confusing but court said that the basis for liability was sub to it did not explicitly find that we were also fiduciary issue and had liability because we exercised or had discretion had control having said that the court certainly did make factual findings that we did exercise control and that we did have control and my contention is that both of those findings are clearly erroneous now and in in terms of the finding that we had control i mean here you have pretty much unanimity from all witnesses the citibank citibank's only witness testified they had no control they never had control now the only witness who testified that we ever did in the beginning of two thousand on january first two thousand and nine first national city or n citibank nat city national city bank i should say becomes the trustee the substitute trustee and there are two employees of nat city who dealt with this issue amanda pearce testified pretty  that yes they have control but we have no control with her because she won't even speak to us she refuses to take our phone calls and the other representative from that city national city bank says basically no they would have had control if certain other steps have been taken but the people i recognized as having neutral are the people who were named on a document just to forget as to as to  signatures that was prepared and sent to national city by severstal and that document says very explicitly you want to know who has control these are the people who have control they documentary record they never had control they never exercised control other than the one time when they told you were herman sell and after that and before that they were explicitly told michael de clemente in his e mail in his internal memo said emphatically told don't do anything when and when they told neuberger berman so that they said oh yes they did they   my recollection is going back a few years first there was a complaint against us the complaint was subsequently amended to them it was the same case in the district  forward to trial there had been some some parties were dismissed but only when the case is finally over do they get to appeal the part against the b h f that's correct in terms of what you were addressing before you're basically transferring ninety percent of what severstal can get it's not mathematically possible for them to get a pro rata share of everything else and i would point out you know at trial sever stolz arista tourney testified question about what was possible was not possible in terms of separating out the assets well and that's kind of where the problem arose so what documents exactly establish that there was no right to a progra law or expectations of the party or yes it was their perception of the law for there was no document that established one way or another exactly what they were entitled to when you tried to disentangle the two parties right well i would i would tell you that the document upon his trustee citibank in which he said we direct you to transfer all of the assets but this is that still after the fact that's after the decision is made that they need to be separated that the house needs to be sold it is going to be a divorce right well yeah in terms of the actual decision to separate the entity is my understanding it that goes back a ways before the november third transfer but severstal had originally been of everything that's what they requested because that's what they thought would be the most equitable were reasonable or appropriate distribution maybe i'm mistaken about that but it has not been my understanding that anyone lots of meetings and and a lot of communications i should say and those communications reflect mr telling them open an account to overdub they never get well  tells them to open an account who can you comment on what i think is the strongest argument that the other side has for breach mr lebeau is the investment advisor he's actually maybe he doesn't and you have an interesting argument he the trustees wouldn't recognise his authority but as far as severstal is concerned don't they at some point appoint him to give him discretionary authority maybe they didn't follow through in all the ways that would let him exercise but as between the two of them he's supposed to have discretionary authority right well he certainly supposed to be understood ok so so here he is as the advisor who purportedly may be on the hook because of having actual of authority and doesn't have to like jump up and down and tell them diversify you're in a terrible position here not just say oh you need to open an account so we can then decide what to do with these assets but once they have this diversified asset which it seems to me and i haven't heard anybody say anything to the contrary is totally liquid there's nothing that prevents them from diversifying it if they choose why isn't he pounding on the desk saying you guys have a portfolio of securities that is going in the toilet it's going downhill it's one industry you've got to do these things because you've got to diversify that and here's my plan for what you should be investing in and and to do that you need to open this account as opposed to just of the next thing guys is sign this paper so we have an account at neuberger berman why i would tell you you know what he have jumped up and down more yeah  however but then there but isn't it isn't it ultimately a question of fact as to whether he is fulfilling his responsibilities as an advisor you know well i will tell you i mean in early january there are e mails indicating that at that point mr allbaugh was saying sell everything on february eleventh michelle of oh said look this is taking so long just sell everything go to cash those e mails were ignored well but eventually they do go to cash well eventually eventually but then it's in cash and that's still not what it should be done so i'm just trying to you know i mean that it was the question is and we have an expert that said actually his responsibility is to quit if they're not doing the things that he's advising because it seems to me that what that really means is that's a way of jumping up and down for real that he has an obligation to give them forceful advice and not let them just fritter things away the expert actually said he initially s direct he has an obligation which on cross examination he said well it's not really an obligation he has an option to quit but that meant that he has judgment to saying that the quitting is a way of jumping up and down he didn't have a legal obligation to quit i'd like to terminate his employment relationship but still to you know ring the fire alarm very loud and he had a duty to call the committee's attention to investment outside of the idea of a plan that seems inconsistent with his general obligations here i mean they've gone from being part of a co mingled to trust to a new entity altogether and it's like what is judge lynch has proposed but they need they have an obligation to diversify it and to do this in an organized way why was it consistent with his you say that he offered some suggestions but he never offered a plan it's just pool or set that i mean you know what you offer assets that the checks have and split them off split off ten percent of each of them and give us you know at that point why couldn't he then execute something very close to that by selling the neuberger berman stuff for taking the cash after it was sold and replicating the w h s of the w h x program investment program as best he could well there are two answers to the first is he didn't have a anywhere to direct any sales assets or any reinvestment they've got can what i'm saying is that you're you say he didn't have an obligation have no plan because what they say is here's what we'd like to to have done now maybe you can't go back to w h x and unwind the transaction but what they're telling him is we'd like to buy the security is that look like ten percent of the shares now of what was in the v a checks now maybe all those things couldn't be quite accomplished perfectly but why isn't that a perfectly coherent plan while the other half of that answer is that what they told him is that's not what they wanted what they wanted was a retroactive reallocation where they were getting the benefit got this essentially set of assets from w h x and they both responded we're looking for retroactive reallocation so you know to to to put it bluntly his hands were tied he told essentially don't do anything until we know that we can do a retroactive reallocations telling them you can't it's not possible they don't believe him they finally believe it you know after a couple of months when w a check says we're not giving you a talk to you to say hey there's a group of stocks sitting in this account sell them and here's what we're going to do no one will take this instruction i mean i  can't i can't call up merrill lynch and say there's this third party and i want to change which in their account i want to sell off what they have and reinvest you something else they're not going to take my my call and that was his situation i mean until the severstal retirement committee does what it has to do to give them the authority that he was supposed to and much of what happened in trial was testimony from mr the boat on the one hand and i would say virtually everybody else on the other hand about what happened and at the end of the day when the court did if you weigh the credibility of those witness it will not affect the liability under a a won the argument would be i think from the other side is that there has to be actual exercise of the authority which clearly they exercise in connection with the transfer and on the twenty fourth of march twenty fourth two thousand and nine so with maybe it's more limit on over a one but for purposes of a two versus a three it won't matter let me just explain a few things that the defendant has raised here he argued and these were all arguments about what the facts show first of all he argued about what happened on november third two thousand and eight and one when it was completed and here in the district court with the district court found his that the sever self trust funds were held by citibank i'm sorry citibank carried out the transfer instruction on monday november third two thousand and eight and the transactions settle on that day and what she cited in support is stipulation paragraph thirty three there was a stipulation that that was what happened whatever happened after that on november fourth by di clemente is irrelevant it's settled it was done on november third and it was done pursuant to a written instruction that came from w h act but that mr lebeau instructed that man mr mckay to do whatever it takes to get it done that was the trial testimony he admitted he was the button pusher he was the on instructing what was going to happen with respect to the transfer that makes him a fiduciary under any three of the pro was he a producer under a one because he exercised the discretion or authority by telling the guy to do what it takes to get it done he is under a two because there is an agreement affective as i'm november first that makes him the investment manager they were arguments that factually were rejected the transaction settled november third it happened without the approval without the can is settled before mr di clemente ever sent his letter on the member for the other important thing is that never there was no rejection of any authority if he thought she wouldn't talk to him that was just something in his own mind she testified he never talked on national city again that's mr limbaugh's version of what happened what national city testified to is at that point there was a written signs investment management agreement in place which would had existed ever since december fifth national said he came in as the trustee effective january first two thousand and nine they testified that the investment management agreement if they had been shown that that was sufficient for them to follow the instructions of mr lebeau and in fact they did talk to mr labout the testimony that that mr blows counsel is confusing is not that they wouldn't talk to him what they said is that they testified that mr libby was an unpleasant man to deal with and the account representative there for asked that she not have to deal with and any more but it was not that national city as an organization wouldn't talk to mr q prior to that agreement is that they are entitled to and i think we may that is going to find if they are they have a ten percent interest in each of these funds and i understand i think your analogy of a house perhaps a little bit off if we were to say have both have season tickets to tickets that we have to new york yankees or new york mets i understand that in new york people don't do that but let's assume for the moment and you and the face value is otherwise the same and you decided that you were going to we were going to part ways and you're going to take the two you knew you new york yankee pickets and leave me with the two new york mets that gets i might not be happy with that division to be but then i think i have an it in terms of what a court can do or what  litigation in the absence of some agreement if even if it's divisible that way maybe so if it's not probably not right even at all i'm all i'm getting at is i don't believe and you can tell me if i'm wrong that there was ever a contention that as a matter of law there was an absolute obligation absolute and title meant to this kind of split independent of an agreement to that effect and i think the answer is we didn't need to contend that now as we had the agreement that's the answer to your question but i think i just wanted to sort of get away from the idea about the house and how to split it up there and i think if you look at the testimony what mr brennan actually asked was not it is there something that in the context of this case where they were acquired to get a ten percent interest of each what he asked my fishery expert was sort of generally under arrest is there a legal requirement that you receive a proportionate share and he said first of all my expert is not a legal expert he's a fiduciary standards expert but what he says as well as the probably is there's nothing i'm aware of under arrest or something the words about a fact is a more general question this water answers your question in the context of this case was not some section there with respect i mean i think would you deal with  limbo just didn't have the power of the control to do anything i think that is that is again an argument the mr lebeau raise it was rejected by the trial court he certainly had the power to deal with citibank he had the power to deal with national city and that is he had the power to liquidate the assets and that's ever by the fact that the court found that he did in fact liquidate the assets on march twenty fourth that he has admitted he liquidate the assets there was testimony and that there was no the neuberger berman agreement there was no necessity to have a management agreement any broker anything they could have liquidated those assets the problem so he had the authority and the problem is not that not only exercised power over the plan assets but actually had actual forty it's clear from their status as an investment manager if you look at the documents they're granted the power to dispose of all planned fact that he did leave without without approval from anyone else if if the committee wasn't approving he well there are two parts about he could have simply gone to the committee and drawn attention to the fact that he had the power to do wit i'm going to do this and like you unless you tell me otherwise because i have the duty to do it you could have resigned but was not under an obligation to resign but there's there are other avenues for him to take here and that's shown by by the he has to at least try he has tried in and that's all evidence but in this case we've got the fact that he did liquidate the b s a so we know that whatever anybody says about would they have listened to him at some point they did it he calls them up and says so all these things and they do that's correct your honor in addition the court found the presumably if you'd said the next day and now by double recovery if there is a recovery under this judgment then presumably you don't get to make mr bouck pay more on the other hand i'm guessing that he's not going to be able to make good all those losses if this goes it is affirmed otherwise mr burton wouldn't be so people but you are suing them and the department's position anyway for better or worse is that both sides could be to blame right or both sides could have fallen short in  both sides between the b p end as investment manager and the retirement committee they could both have screwed up because they both had an obligation to make sure that there was diversification that's correct your hon fiduciary who's hired to give investment advice for a fee but you don't have control you can't be liable for not exercising control in this case the only exercise of control the exercise  appellants is on march twenty fourth and on march twentieth there is communication between the severstal committee and neuberger berman telling them ok we now have an account we've finally opened it and we're going to liquidate the the new york yankees mets analogy makes no sense because pension plans only have interest in the vestments they don't have an emotional attachment to particular investments investments are worth their assets they're worth money hopefully they'll appreciate you know if you get your money you're happy where is your yankee tickets maybe dear to you it because there's no one who will take our coal and we don't have possession of the securities they're held by a trustee who won't take our direction brokerage house won't take our direction and we can't even though yes any broker they could have opened a training county broker no broker is going to take a call from a stranger to this account of their nar assets we can't just call up and say hey you know there's someone else who has the