issue on this appeal it is appellants position that defendants used a number of documents that had nothing to do with the allegations in the nd amendment complaint to persuade the district court that our case was about something different than what we allege that isn't proper under this court's precedents that we cited that i pronounce cogia the crux of our case is that plaintiff's complaint allege that defendants manage and administer the i'd be you plan contrary to the plan documents the plan documents prohibited incurring and unfunded ok as to the standing issue that was never raised until this appeal and we have been right and we think we agree that it's a creative argument raised by the defendant but it relies on a supreme court case called the all that is totally different than our case and what the court did this court did allow us to supplement the record then that declaration makes clear that mr fisher the plaintiff in this case has lost one hundred and seventy four dollars a month for every retirement month once you retire so you still an active participant and that's so far they all suffered the same damage that losses because of the rehabilitation plans that they put in place because of the d young fund the best of benefits right now your honor we just what what what is this what is the you need to understand the distinction between a plan document that directs the trustees what they can and cannot do and then to restore regulations that are separate and aside from that the tell all beneficiaries did agreed to it at least the union did because it would assure that the union members receive benefits based on how much they work and the distinction i was trying to draw it was that be provision is unique we have not run across a nother provision there and if you are just going to throw the throw out everything me and say that all multiemployer plans the case is different for three reasons in thought the plaintiffs had already retired in our case mr fisher and none of the one thousand four hundred class members have retired in the  case the participants did not lose any benefits in our case mr fisher and all the one thousand four hundred class members have lost their future benefits in the  participants would not have been helped if they won the lawsuit they would their retirement benefits would not have changed in this case mr fisher in every class members will be increased if we are successful in getting the ultimate relief that you want which is an increase in benefits depends on so the independent judges run to the trustee isn't and you're not asking us to compel them directly to increase benefits no it isn't go to redress ability a problem for you i don't believe it's a redress ability problem the plan will be refunded and it's up to the trustees to determine what they will do with the benefits however i'm confident that if the plan is refunded because these benefit these participants filed a class action lawsuit and we covered the money that those participants will have their plan refunded that they will the most significant ones but i also agree and it agreed that it is a different type of plan a single employer planned event as you mentioned they would get the surplus and so i think that is also a distinction but i believe the three i was trying to point out are the most important  ok i think that is the key your honor because because of the limit of my time i'm probably not going to have a chance to talk about the just records finding that the claims did not p claims time barred and as i was saying above what our complaint alleges d that there are seventeen types of claims that are continuing violations that relate to things that have done been done since two thousand and nine all the way to through two thousand and seventy and there don't all of those claims ultimately depend on the idea of if it was improper to eliminate the valid change in the group and clean well there's there are three different levels where we thought the of the ruling was wrong but to start at the back where you're asking we believe the car court was wrong because of this court's precedent under meagre which directly hell that a time based defense cannot somehow make a procedure only improper amendment effective and so we don't statute of repose run that magically transforms and him proper or amendment into something proper i don't think that's how the statute to riposte works and i think that it was wrong on an levels other than that because it mixed up the statute of limitations and the statute of repose and and it used underlying violations which is something from the sniggler and marotta cases which are statute limitation cases and the defendant ha violations so you look at when the last culpable act of the defendant occurred in the nuclear case you're looking at whether the plaintiff's acts were timely and whether it happened within three years of the underlying violation for a statute the riposte your saying anything six years after the last couple barred and that's different than what we have here and i see my time is up thank you may please the court i'd like to start with the threshold issue of standing there's a fatal disconnect between fischer's theory of liability on the one hand and his theory of article three injury on the other in this disconnect really infects our position with respect to article three standing is that he hasn't identified a legally protected interest that's been meaning for women and and because he couldn't sue outside of the six years as there's a stature and the supreme court's recognized that even if an injury the injury may not have even occurred when the statute of repose as laughs and so that doesn't and doesn't mean that there's not in article three requirement with respect to injury and this is the thought case is really on point with this because in poll what the supreme court recognized is that participants are defined benefit plans they don't have an underlying protected you have to pay a participant under a defined benefit plan when it comes to the prospective accrual of future benefits trustees always remain free to modify those that's what the hughes case or there's there's simply no legally protected interest and it continued rate over cruel and because there's no legal entitlement there there can't be an invasion of that title or these trustees are always they always have the right to modify prospective  through simply no protection under research that what they can't touch is the already accrued benefits and mr fisher doesn't claim that his already accrued benefits have been addressed or that there are imminently going to be reduced in any way so he's in challenging the legality of those in that he disavows any challenge to the he tried to challenge them in the district court in the st minute phone claim he lost on that theory and he's abandoned that he's not asking the court to set aside instead he's asking the court to to award money to the trust based upon other conduct but he would not share in that recovery so that's why he's arguing well well he probably would  one so i i don't think it is your honor respectfully because here what fischer is presuming is that if the trustees were ordered to pay off the unfunded best by then we would have no and he assumes that the trustees when they make the independent judgment to reverse the prior amend its but nothing will legally require them to end this court's decision as i just mentioned in glanton rejected the same type of  one i agree that the plan was different but i don't think that makes any difference for article three purposes because what i was explaining is that even if we award this relief to the plan it doesn't mean that the plans officers will necessarily turn around and refuse arms there be no legal requirement to do so they might use that extra money to do to reduce employer contribution by the same analysis  they retroactively undo those amendments now you're increasing vested benefit liability and you automatically increase encourage more u v b so in fischer's right about how that trust agreement provision work there would be every incentive not to touch those amendments because we want to avoid incurring more u v b life so that money to the plan would go to the trust and there wouldn't be any incentive to reduce to unwind those amendments there might be someone saying to create a reserve there might be some incentive to increase the contribution levels or reduce the contribution levels of employers because that was something that the tw and eighteen amendments required under those amendments employers had to increase contributions it was all sorts of things the trustees might do with that money and it's purely speculative for mr fischer to assume that they would necessarily unwind these benefits when the risk of doing that is breeding more unfunded vested benefit and subjecting themselves to more liability so we think it's just far too speculative and that this court's analysis in glanton precludes the redress ability argument mr fisher is mak acknowledged that this all goes back to the action taken in two thousand and and so every claim he's making is either a direct or indirect yes so two thoughts of two things on the st of all meager in making that comment was it was not part of the limitations analysis and what it was recognizing is that in the context of this particular type of amendment before it can take effect the statute requires that it be signed off on by the secretary of labor and the statute says the amendment shall not take a court didn't say that when there's an ordinary violation of a trust agreement some men procedure necessarily that amendment never takes effect and it certainly didn't say that this would effectively suspend the statute or posed so so that you could always challenge the validity of a plan amendment six years from now sixty years from now so long as the use years are still of hiding by that allegedly invalid amendment that would completely swallow the statue if you don't think that's what me here and do what meager focused on so that's what year we all agree that the underlying breach is the amendment of the trust provision in two thousand and nine so that is the underlying breach it is that the clock began to pick in two thousand and fifteen his claims expired under the statute or close and all of the arguments to the contrary are are little more than arguments that as long as that if you do sure is are still following the trust provision then the in your time limits of file suit never even begins to run and it never expires that's completely contrary to the legislative purpose behind a statute so we don't think that's workable the argument that well this is a continuing violation is really an argument based upon the table and symbol of the supreme court was construing the very unique duty to monitor investments on her now that duty by its very nature is ongoing it's continuing because when a trustee puts an investment in a plan what's reasonable today might not be reasonable six months from now or sixteen years from now the trustee has to continue to monitor that lou it asset not so when it comes to an amend honor i just want to say with respect to the possibility that you know we we have explained in our papers why we believe that even if there is article three standing in even if the claims were timely which we think neither of neither applies  the allegations that were offered were far too conclusory without factual basis to support a possible theory unless there are any further questions i would simply assert that mr fisher does not have article to bring this claim but i would hasten to add that the trustees themselves can assert claims they are responsible as kofu series of the new trustee into the plan a few years after that amendment and felt that there was a problem with it they could bring a claim under arista and ask for relief to correct that error if they believed that there was one so it's not is no this issue could never be addressed if there was a violation in the st place it's just that the article three requirements that exist for a case in controversy require the late again here mr fischer who have suffered some invasion of a legally protected interest which he hasn't that would be redressed by a trustees and the district courts somehow concluded that wait this has been amended that is not what the complaint says that is what they're judicially notice for visions which are there documents the i think the distinction as you're starting from the premise that the amendments might have been affective and the complaint alleges that the amendments weren't there the plan said no you be  and the judicial notice of documents creates this issue about well maybe it was amended but we allege that there was an improper amendment but we never said alleges that it was an amendment and so that's my point my final point is that this court said in the vascular case that the whole point of these are risks statutes are to benefit the participants and if this court were to hold somehow the participants do not have a claim because they don't have standing i was that doing something in the interests of the participant that will deny all participants remedies in the future and so we ask that you reverse the district court and allow us the opportunity to do discovery see if we have a claim and then under the proper standard to determine whether this case can go to the trial