thank you may please the court my name is sam bond draw from here on behalf of the plaintiff appellant we are here today to focus primarily on a claim for breach of the fiduciary duty of prudence under a against the trustees of the life touch employee stock plan with respect to the valuations of that stock that were done in june of two thousand and fifteen in june of two thousand and sixteen plaintiffs have alleged that prior to those valuations life touch endured a series of significant financial and commercial setbacks that should have resulted in a valuation that would have been significantly lower than the remember there's a significant difference in the prudent duty with a nice up what is that yes your honor there it is what is it let's get it on the tape  and that is that most significant aspect of this case your i gather your your remedy was they should have dumped the l t stock they should have destroyed the employee ownership of the of the company that under all circumstances if a employee stock plan becomes imprudent what does it mean here what's the alternative that you plead the don't offer to require one they could have only we didn't offer says that diversification is not required this is a private right of action this is not the secretary of labor's case that is true but i say you have to have a remedy you have to plead a remedy to survive dismissal didn't offer still allows for prudence claims to be brought against isa it still allows for claims that aesop has become imprudent if there is artificial inflation of the stock still holds that to be true amgen quote would create artificial inflation what we have alleged here is that the company itself in providing information to the rd party appraiser tried to a claim of intentional misleading rather than simply not being prudent respectfully no it is not that's a separate claim at the lower court we had two distinct claims one was a claim that your honor just articulated that the company itself and the board of directors provided misleading information to the rd party appraiser and that was a breach of the duty of loyalty that claim we are not appealing the dismissal of the claim against the trustee defend is not that they provided misleading information we don't allege that rather that they were insufficiently monitoring that you saw and if they had been sufficiently monitoring it they would have noticed the disparity between how the company was actually doing ok and what the valuations were and they would have investigated to my question yes anywhere in a private right of action against market for the service we allege that it would have uncovered that the company was providing misleading information to rd party appraiser and that therefore they would have realized ok these valuations are not correct people are buying the stock at inflated price and thereby being harmed people in full you mean employee yes you mean you mean playing members yes though is the claim that all the stock should have been sold or is it only for are the only planners and and to the extent that plan participants were deprived of some value in their holdings by virtue of those employees who left the company during that time and cashed out at the inflated don't care if it's the if it's the district why where where's the back the ban in case in the southern district of georgia it was found that planting a failure to investigate and that was actually a public company stock not private company that was a public just specifically i was wondering whether there was any allegation that the sitting methodology had changed from prior years there's an allegation that it was misleading but the information that they provide the appraiser is that it is or now we gauge that that methodology was unique or uncommon in the industry known or there's not much of an industry here but this company was for a long time the the only player the largest player in this sick question about methodology is how you how you how for aesop industry practice that it is but it's not enough it's necessary but not sufficient because simply looking at what the appraiser does once a year and doing no more monitoring is inconsistent with not doing a monitor under so that's not enough and to get back to iran or so earlier question the standard that should be applied to all of these allegations with respect to the duty of prudence claim here is a letter because the claim is about what they did to monitor did they do enough what should they no have known at the time and all of those allegations should be looked at under eight and none of them should be stri under rule ninety i would like to reserve the balance of my time for a bottle me rather the secretary filed his brief to address two errors in the district court's decision well st the lower court errantly held that an allegation of providing an accurate in misleading down i'm not unusual lawyer in but let's look at the the court very carefully said that because of this the difference between this and stream them of course is there were multiple claims one of which was not grounded in fraud here we have a single claim one that one significant allegation of which the visitor was grounded in for a lot now your brief never addresses whether what's right what's wrong with of fraudulent data manipulation and then that this alleged conduct and i'm quoting providing an accurate in misleading information to the independent appraiser have to read the whole thing you have to read the sentences before and after that and the sentences after that make it clear that the court was was limiting its analysis of whether a claim out was appropriate to a claim and concluded was grounded in fraud not simply inaccurate information manipulation is a fraud field word so let's get to my question what does it does the department of labor in addition to what it briefed does it also take the position that you can't includes a claim part of the imprudence was the trustees themselves manipulating data or conducting other conduct which is grounded in fraud with and that the challenging plaintiff does not allege that fraud with the detail of nine b requires what in the department for you should the district court do in the scenario that you just laid out your honor if there was a claim of fraud that was brought appeal that is not what we have here instead the secretary views this complaint broadly in the focus is not on the data manipulation it is on what the trustees had to do after it discovered or in light of that price project i think of the if you were representing the f c c that would be an easy question yes manipulating stock price is fraudulent but here are the allegations against the true trustees is that they were that were then incorporated into a complaint can calculating estimating stock value i believe those were the company executives that did that is  that my questions suggest this will the secretary be content with us to proceed to the factual details of this case if the secretary would disagree with that interpretation of the complaint and this district the district the district judge was obviously tracking the stream there and analyze from stream bed to this differ somewhat different situation and attempting to to capture the same analysis affirm there now if we if we read that as being as having been successfully done what's the department's remaining concern other than these plaintiffs lose may lose the secretary would not take issue if you conduct if if some of the alleged conduct is found to be grounded in fraud then the district court says i put that aside in doing my rule a day analysis what's wrong with that the department does not take issue with that executives at life tops and that because of that inflation that caused harm there is a question of the remedy there which you not the only effect of that would have been that life touch would have had to the company would have had to pay more money for the stock but beyond that they say that the stock was inflated do it do this that scheme and the trustee defendants they now claim that the trustee defendants didn't know about it but should have that's their claim and again i would point the court to pages nine dollars ten cents of the opening brief and page ten of the re that's their claim now it's undisputed that on the st of all this claim fails for two separate distinct reasons st of all under nine b this claim is clearly grounded in fraud for reasons i'll discuss and should have had to where it's not an entire claim this ground fraud but it's it's a significant part of the allegations supporting the claim what i want it's not stream and this this case is is more difficult than stream ben because of the way of the lance scales disclosure act was patterned after the securities laws it was possible to pick out claims that were at war and grounded in fraud this one been waived they made a claim that the district court but it was all in the it was all in the prudence claim analysis well your honor that there was there was really two claims that were below the full i know but i can't i the way you the way the private lawyers are sorting that out this morning is beyond me i haven't studied the record enough sure and what i consider courts and i got two claims here right in what you know come up and you say well we only got half a one on appeal or we got one and a half are we i don't part of that was was part of that claim now it's the only part of the call it's the only part of the claim your honor because the only reason that the plaintiffs allege that the stock was inflated is because of the sit scheme the only reason that the stock was overpriced the recognised to the allegations of the city scheme and to the extent there is a general claim that survives i don't think it does but to the extent there is a general claim that survives at the valuation people just got it wrong what i'm saying is if the medic complaint does not plead a plausible claim just just from the from sums up subsequent drop so again your honors i think that if you look at the district court's opinion there's no question that the trustees below were part and parcel of the fraud that they again material there's no indication that it affected any of the inputs that would go into a valuation stream or thing to indicate that it was unusual in the for the photography business nothing there's nothing to it there's nothing to even  some distinction between now they say the trustees didn't know and therefore it back claiming separate and distinct from the claim of fraud well st of all you're on it that's not true they did now that's what the out of consistent allegations an wrong anything illogical about that well it doesn't make so if the fraud allegations don't state a claim they don't and again ninety applies not ninety applies broadly to allegations and the purpose behind the rule of making sure that a right to i'm not running away from your honor i agree with you that paragraph sixty one should be stripped under ninety and i think i do think that the rest has been weighed by the plaintiffs on appeal but just to go just to reiterate the point to the extent that we look at the sort of just  would you give me a case what's what's this what's this waive that appeal you mean because that precise issue wasn't even though it was brief then argued in reuben by the district court somehow didn't have a separate subpart of their brief on appeal well it's not discuss all but again i want to make sure that i address that question too and i need some a circuit you know we have a lot of a lot readdress a lot of attention to what's waived or not produced and what's preserved and what's foreclosed and what is not appeal that's a big deal to information there's no allegation in fact they acknowledge on appeal that the processes used by the valuation people were proper were were were proper and true and there's no indication that the fifteen percent drop other than conclusory statements there's no there's just nothing that judge ericson properly concluded that stripping this it seems allegation from the complaint there's nothing left to suggest that the independent appraiser got this wrong or that the trustees when they finally sort of ratified that decision got that wrong either there was statement by the district court is not taken in isolation and out of context you would agree with the secretary that rule nine b is not just generally political to the type of i would say that's certainly not an issue that's race here i mean there's a question as to whether or not that mistake you know it's not race here because the scheme is plainly an unambiguous lee and intentional act of fraud by by the by the by this by senior executives at light touch which includes the trustees so add that well what  effect is affected by you know ninety applies in the state or abroad as to innocent misrepresentations or negative misrepresentations just doesn't race here and i think that if you read the district court's decision in context it's very very apparent what she was trying to say rebuttal of a very brief point i mean we need to correct the record here the trustee defendants are not alleged to have participated in this scheme the allegation the prudence claim against them is that if they had been adequately monitoring the investment they would have noticed the disparity between the performance of the company and the actual valuation of the company and they would have investigated and uncovered the scheme if evaluated under ninety you know only about united under ninety when the claim is directly like it was with our will to claim that they manipulated the data and it's very important that we clarify that point because otherwise we are applying the wrong standard to this case and to go to a judge process question from earlier there is more here today than just the sit ski there is the light of the plant closing the contracting market share the store closing there is the fact have the drop baked in in two thousand and fifteen especially two thousand and sixteen and then it went a bit at best a flat in two thousand and seventeen you would not expect to see it go just down a little bit and down a little bit and then when nothing changes suddenly for there to be a