you mr mckenna yes your honor me please the court first thank you for the courtesy of accommodating me with my family situation got to proceed thank you you're out of this case sits at the intersection of a risk that the district court committed era because it number one didn't follow braden and give us every reasonable inference of our complaint which alleges that this single stock for non diversified of the old company not the stock of the company that they were employed was rolled over and let this left the said six million dollars with no examination no effort to review and decide whether it was prudent we challenge their process by saying there was no process and the district court you're grown asli held changed change the language of what we were complaining about and said that we were complaining that their process was flawed and that our allegations with threadbare and that's not what we were saying we were saying that this company spawn off in may of two thousand and four the stock that was sitting there again in undiversified single unit has no business being in a semiconductor plant it's no longer the company plan it's not there's no public policy for why this employer stock should be or it's not the employer they let it sit when we allege that by the time a year and a half a  review why we holding this stock at ask themselves why are we holding this stock and that was our allegation that they never did and eventually the stock was worthless and were between the rock and the hard place of being insiders who are holding their own company stock and afraid to break the law securities law because they know they have inside information they don't know what to do that's not our situation  this legacy stuff is the same as a mutual fund same as a vanguard account there's no connection to the company there's no rock in the hard place they have to do their duty to periodical review the assets being held in trust this is other people's money being he retirement the purpose of this is what does your complaint include periodic review in it anywhere i think we have i think you say properly monitor you say failure to investigate yes you are i don't know if we use the word periodic leave but i don't think you do page twenty nine of your complaint right is your main continuing duty to monitor those paragraphs yes paragraphs sixty five sixty eight of sixty three sixty five sixty eight seventy four eighty three eighty six ninety and under br when you read a complaint as a whole you not supposed to parse and pipped if you read our complaint as a whole it basically says what on earth are these people doing holding this legacy stuff on for no public policy reason and never examined it once and we asked for discovery we do you say that your complaint never examined it once i'm not sure if i used those words judge but i'm saying if you read my complaint fairly that's what we're complaining about we're complaining  is this stock of another company in our plan why are you not examining it why did you not review it and we'll let's they took no action we asked for the minutes of the investment community limited discovery and the plan trading data to see if they even traded the stock over the fence refused they ran to court instead of a rule sixteen discovery conference made a motion to stay discovery we opposed it and we lost that motion so right now sitting in the drawer somewhere is the proof that i say my case that they did nothing they never once examined this and that's how do you distinguish this from didn't help her without putting aside tipple for for the purposes of this however says that a fiduciary of of a nice up doesn't have to try the alcohol of the market to figure out what the price should be it's got a public price it's twenty dollars they don't have to guess that it should be fifteen they don't have to guess that it should be twenty that's not what we're saying here having a price is not the same as being prudent having a value is not the same as being prudent these are different considerations that  has to do so of course on at a certain stock has a price it has a value it's value started at thirty the market daughter was thirty and then it goes to buy vivan and the market thinks the value of some medicine is getting worse and worse and worse as the price drops because the problems are getting worse and worse we're not saying the price is not the price or thought the right price we're saying take a look at is it prudent has have circumstances changed the that the debt went from two billion t eleven billion all the commentators a commentating that this is this company's in trouble and that's something that's public information yes and exactly but again everything has a price but that doesn't make that cannot that cannot mean that just because it has a public price it's prudent that makes no sense otherwise there would be no the court the supreme court in tibble and is and didn't have a wouldn't be saying you have a continuing duty to monitor the prudence of the assets of course that has a price so then don't you need to then plead something more than just the price or the value of the public information about it in order to make a possible claim to mit if i was trying to make a plausible plausible claim that the price was wrong i would need to have special circumstance to show this inside information and the price is not really the price the insiders and for in fifth third they concealed that the bank locked the banks on loans were bad and the price with the allegation was the price was artificially were securities for cases that's not what we're trying to do here i'll grant you the price of medicine is very price it is on every single day my complaint is did you do anything to consider whether that was prudent to keep holding this  as a price that keeps going down up michelle is that the same as just saying it's too risky that that's where all the courts that have followed do nuffin all the aesop cases get go astray because obviously the price we flex the riskiness how many shares are out there and what's the price if it's one hundred dollars and the stock goes to fifty because there's bad news the market just decided the stock of riskier that's why the price went down so the price does factor in risky knew that but again that doesn't mean that let's take it the other way if it's not for applies to this case that this is what you're the decision will be a is not the law that has never been the walk for thousand years under for do shows you're managing someone's money you have a duty to monitor it periodically to see what is going on there's no there's no evidence in the record other than our cohesive allegations that they've spun off flipped this into december plan and did nothing and it gets worse if you look at the sony plan they copied it verbatim from the sun edison plant and we can seven dash one pages forty eight to forty nine of sixty four on the e c f stamp they literally took the plant over whole sections eighteen point one and eighteen point two which are in our  record on pages like eighty one forty two and one forty three this is our plan even says that they will prohibit so my employees from selling sun edison if they violate the sun edison frequent trading policy how could that even apply to workers who work for they're not subject to some frequent trading policy of another company so they say the evidence shows that if you if you can you give us the benefit of all inferences that there's almost no thought went into this no examination they just copy the wording of the plan copy the restrictions that can even apply and then just sell warrant and never examine it it cannot be the law that that's appropriate and certainly can't be the war that we should be dismissed on a motion to dismiss braden would would would roll over in it this court held that you can't even expect the individuals to have access to the inside information that the fiduciary have so we can't know everything they did and brain says we're not expected to we allege that they should have done something they did nothing any decision by your honour's that if it has a price that's all i need to do you're just saying that every fiduciary should just turn into a filing cabinet and that's not the law thank counsel thank you for that you've reserved the rest of the time for rebuttal we'll hear from mr meyer publicly available information that involve a publicly traded stock in major stock exchange where there's no allegation that the market is not operating efficiently they should be dismissed pleadings and that's exactly what the district court by the table has trust law trust law trust law trust law did they played enough on paper john like page twenty nine paragraph sixty five to sixty eight and the other times they say failure to monitor i would say to actively monitor  this they actually say that during the relevant period this is their words despite the despite their fiduciary is defendants despite their knowledge of the imprudence of the investment the defendants failed to take meaningful steps to protect plan participants so they're actually saying affirmatively that the defendants knew this was an imprudent investment which is totally inconsistent with the supposition that they were not paying any attention at all but now they can  well the nub of the case for me is oh let's assume they can they can plead failure to monitor and it's an imprudent investment and so on so is if you have a claim premised entirely on publicly available information to bill is actually a statue of a patient's case it doesn't address the mustang whatsoever it's the statue of limitations case and what kills what it does so you have a duty to monitor it that's the question that do not offer specifically addressed that's what didn't offer addresses didn't offer address the claim the exact same claim is this which is you have a publicly traded stock and they're saying just that the fiduciary soley on the basis of publicly and available information the rest of the market has the same information that the plaintiffs have that the defendants have it's all out there and it's already incorporated in the market council for fifty or sixty years diversification of assets asset allocations has many different names has been the guidance for investments and it can't be that just simply because it's listed on some exchange somewhere that it's a prudent investment there have to be some imprudent investments there can be improved invest and they can be listed medicine stock fund was just one of the other the other ones were a wide range of mutual funds there were a wide range of diverse investments so the notion that there is some sort of diversification issue in this case it's never been planned it was never argued below and it wasn't even mentioned until the reply brief to that and the other way you measure imprudences by what the investor wants core suitability as a fancy name for it that's right now what is what here it's a hundreds maybe thousands of participants of varying ages different economic circumstances so what might be prudent for a sixty two year old who's you know maybe you could nearing the retirement age out of the plan versus a thirty two year old a thirty three year old might have much more tolerance for a home before you get a slice at that then late do think about an investment that nobody would want whether you got the baby that you're investing for college for or where you got the person's about the die nobody would buy the stock ok it's pure junk junk junk many junk as i say ok and that can be listed somewhere on the exchange right it could be listed for forty five cents or so it could be depending on what kind of exchange or dot i know you and i could go on but we won't so so answer this question at what point do you have to kick that one out and how do you know and what's the duty well i would say in in this type of situation if you have a publicly traded stock if it's a if it's a stock that of the type that didn't offer was talking about publicly traded and it's on a major stock exchange where it's reliable and where you can rely on the market price not to just tell you what the market prices but as a predictor of what people are thinking your hypothetical said it was a stock that nobody wanted if it's if it's truly a stock that nobody would want it would be worth almost a zero i know it's got some sense it's got some speculation go ahead but it would be close to zero the sun and i think that fundamental problem with the with their claim this case which is they're saying that as of july twentieth twenty fifteen their theory is that everybody in the market everybody nobody could have looked at this  concluded other anything other than this company is doomed to bankruptcy and if that's the case you are the stock would not have been trading at over thirty dollars a share at that point the stock at the close to zero i think what you what what you're trying to say but you don't want to it is that there's a duty to monitor but as long as a solicit on a stock exchange you're insulated from liability it's not quite i wouldn't quite go quite that far it's not as long as you've seen you welcome quite that far but there's something that happens that makes it imprudent to rely on the market something that says we don't think this we don't think the market is operating efficiently we don't think the market sufficiently incorporate it but then you go right back and you always say but if assad says public information the exchange was not functioning properly those are the special circumstances that are a do offer something that would tell you that we don't think we can rely on this market price anymore because there's something wrong with the market so that those are very extraordinarily narrow circumstances i will i will grant that and i think that was intentional because i think the supreme court looked at these cases and said we think they're implausible but you could think you know we could think up some scenarios one of you know hackers infiltrated the new york stock exchange and trading went down for a month and during that time the fiduciary is you know that the news came out that this the stock was you know it was it was worthless or renew it there was no dispute it was it was built on a fraud matt and they said well you know we know the stock is going to be worthless but i don't know the market price hasn't change and that's but that's because the market hasn't been for you know operating literally that if it's even if you've got a they say that turns out to be a county west was bad and the books were cooked you're going to the you're going to say well then the market would reflect that fact and therefore the market would reflect that fact and therefore they're not going to be liable if they're not to be liable for failing to you know make a guess about which way the stock is going to go because by the time they find out the rest of the market's already found out in the stock has already dropped so on day t you know just to really simplify this let's say the stock and they want this thirty day to some bad news comes out that they find out at the same time as the market by the time they they can do anything to stop it the stock has already dropped to say two dollars so i day two it's too late for them to do it they can't go back in time and change their decision when it was thirty they have to you know go on the facts that they have on day two and at that point the stock price is at two so they have a choice they can say well we'll  force the decision to all the participants to get rid of it now and lot and guarantee an enormous loss or we can hold it and ride it out and maybe it will go up and that's what didn't offer us talking about about predicting the future they don't they're not like nobody knows the fishers are no better positioned than anybody else and the efficient market to guess when the stock is a two dollars nobody can reliably predict whether it's going to go back up or whether it's going to go improved ones improved ones improved ones can pretty much those ones you're supposed to get rid of by the way ok so you think the only imprudent ones are those with special circumstances you have to agree with that  talks about special circumstances and those have to be improved ones right if you have special circumstances stocks are imprudent ones you need to get rid of i think the special circumstances are hindsight they've said that you might be able to state a claim in that case they actually don't come out and say good they say we're not considering whether you could that circumstance you think anything else fits in your definition of imprudent ones except those you have certain special circumstances about  they could be you know you could have investment instruments that are completely inconsistent something some plans a very specific investment guidelines you know written things that say you know you know and there particular stock fund it would be appropriate for a person who wants to tolerate very little rascals nearing retirement and then you put some stock in it i mean yeah i think if you had a situation with a plan you know we will not invest in  invest in you know u s stocks or you know low risk you know very low risk stable asset value type things and then they went and invested in you know the mutual fund that started investing in russian timber futures or something like that and they view is there any anything different about the duty to monitor disconnected from the duty to get rid of unproven investment that's another phrase that goes through temple as well do the monitor the monitor i think is sort of the four runner to the duty to improve to remove a prudent investor so in your view that there is no priest standing duty to monitor independent of its attachment to to look out for him that what we've been talking about here the imprudent that there could be a duty to monitor and you could be looking for things like is the let's say you had a mutual fund you might want to you might want to look and say is the fund manager investing in the types of things that they've said that they've told us that they're going to invest so in and on in a non publicly traded context is what you're saying is what they do need to monitor which really takes place that's one example where it would take place yes and we're not disputing that there's a duty to monitor but the duty to monitor has to what the other courts of i think correctly said is you can't just a legit procedural due to monitor with nothing else there has to be and what and they and what this we're doing offer comes out at all circles back to do over in the context of this particular case ok thank you for your argument we're back to you mr mckenna it's taking you right to what i said that with your advisors and say is this a good investment that's what their job it is to figure out of these good investments why did you pick the vanguard opportunity for him versus the t d roe baba buffer and you have to have some thought in it and you have to make a decision the no one's found one yet know what the status of circumstance because it's silly he saying that if it's on a public stock exchange it's got a price i never have to monitor it again i never have to think about it i don't have to do w i may be wrong about this but i think the special circumstance may in many cases be in the fund where the fund manager represents to the participant particular mutual fund i'm going to invest in these types of dividend and your duty to monitor is to make sure the investments meet the the benchmarks of what you said they're going to meet not maybe not that they are the more that the market says something different ok the  semiconductor plant says that the purpose of the plan is to provide a means whereby an employee made an employer seventy may share its profits with its eligible employees on a deferred basis and thereby  measure of financial support for such employees and their beneficiaries upon retirement so show me how you sat down and made a reasoned decision that holding out the sun edison stop for no public policy reason it's not my employer anymore show me that you made a reasoned decision and i will dismiss my case they will not be able to show me that and lastly your honest i think this is the case and maybe if you really want to give me a boost direct that i get the limited discovery that i want that those minutes of the committee ok thank you for the argument case eighteen dash sixteen twenty six is submitted for decision by the court