am andrew robertson on behalf of the plaintiff the talents i reserve three minutes of my time for rebuttal yet you have this absolute fact with respect to the core issue presented by plaintiff section thirty dollars b claims whether the advisory fees charged to the davis new york venture fund originally arm's length of range of fees for the davis defendants investment advisory services claimants provided evidence funds as it provides to new york mentor fight davis contend that there are differences in other non portfolio management services but the district court recognized that there was arguments rest undisputed facts of fact particularly with respect to whether the clipper and selective fines provide evidence that aren't linked range to districts or put the burden on plaintiffs to show that the service is provided to the clip and selected are different from those provided to the new york venture fund but it was defendants burnette summary judgment to show that that comparison is apt under jones defendants provided zero as it regarding the services that david actually provides to the clip and selected fines to district courts herbing that that comparison is apt rests entirely on an assumption and assumption that the services must be so there was available discovery with respect to what their duties were at those two funds was there and was there such discovery did you inquire into that subject that the other side has the burden of proof here with respect to appropriate comparative but regardless of that where you said it's the issue of who is the compared her is rife or whether these two funds are appropriate competitors are rife with factual disputes so i'm asking you what you prove what burden of proof you have i guess i'm just trying to ask what is it so they had different strategies these funds is that what makes the duties that raise an issue of fact as to whether the duties that the davis people performed were different for those funds than for the subject managing the funds portfolio and the strategies are how the advisory goes about pursuing that objective right and these are things that are disclosed right up front in a mutual funds prospectus and  fact not only what the advisor does research does it does what research does it do what types of analyses does it perform right and is there some evidence in the record that talks about why or something from which you could infer or explain to me why ok fund a has this investment strategy the subject fund has that one and if you're doing what you're doing for fun to do any work really and should be paid very much or you're doing a real lot of work and should be paid more then what's happening in this fund just trying to spin that out so that it makes sense to me as a fact dispute about why how much they get paid to be the investment advisor should be different in these two situations firms where there's a variety of fees that are charged to mutual funds and one dollar of the critical determining factors of how a fund of investing in international stocks additional research that's required to invest in international stocks there are also can be differences based on whether the fund is diversified and these types of factors  affect the iffy charge by the investment advisor because they affect what the investment results are likely to be for the find and the effect with the associated risks or for that fund so differences in investment strategies and investment objectives absolutely have an impact on what the advisors will be liber when they do peer comparisons or other groups that do peer comparisons they tend to classify funds based on their investment objectives and their strategies what type of fund is this and here defendant internally in their own reports classified these funds these clipper inflected funds separately from  recognizing that these are different and it's not just for perspective differences in investment strategies the defendants also failed to make any showing that the fees charged to the clipper and selected f during the period at issue in this case were the result of arm's length negotiation defendant and a district court focused on the initial retention of davis's the investment advisor for those funds back in  ninety three in two thousand and five but premier showed that the burden members who had initially selected davis were no longer involved with those funds at the time during the time period relevant to this case which begins in where courts give less deference to the bird here or the board was given incomplete and misleading information about the services provided to the separate sized lines and route the corner focuses on the testimony of one of the directors marshall williams her testimony actually highlights why summary judgment should have been denied she minute she had never seen the sub advisory agreement and she admitted she resin a rare of the extent to which davis performs possibility that the of which the board here was not aware that davis performed the same services or different services what exactly is it that she wasn't told  goes rather beyond portfolio management and encompasses a range of non portfolio management and if that's what they do as sub advisors what does the actual advisor do to justify getting paid do the work in fact it leads to more work because now davis has to report to an advisor and should do diligence meetings and provide information to the advisor about the work that he's doing david still has to do all the underlying tasks to me like the people who have a lawsuit or the people investing in that other fund because they're advisor is getting paid a whole lot more to do not much other than to complicate the bureaucracy into two levels and make the davis people do yet more work than they would do if they were the principal advisor and it just seems to me that you know what we're talking about here to maybe get back to the the focus of the district court's opinion is not outside a reasonable range what is the basis for that conclude why is that in dispute i thought what the district court said was you know there are a lot of things you could argue back and forth but at the end of the day all you saying is maybe they're getting paid at the top of a reasonable range contend are substantially the same services and so rather our contention and we believe this raises questions the fact that when you look at that arm's length range of fees there is an enormous disparity in the fees charged by davis relative to that range and that disparity is not explained or justified in any way by any differences in the services that davis provides and that that was right within right drones right of the courts to be may please the court my name is steve two pets and some i represent to the selected advisers the parties are in agreement that the controlling authority is the supreme court's decision and jones versus harris the opinion in the jones which embraces this embodies the compromise that it reflects a rejection of a reasonable new standard with respect to mutual fund advisor compensation and that it does not and is not intended to ensure fee parity jones and other supreme court precedents also reflect that the cornerstone of efforts to control conflicts relative to mutual funds is scrutiny by an independent board thus a stated by the court in jones where a board's process for negotiating and reviewing investment advisor compensation is robust a reviewing court should afford commensurate deference if proper factors are considered the decision of the fund board and its independent directors is entitled to considerable w and the standard under section thirty six b does not call for judicial nd guessing of informed board decisions the court in jones also stated in footnote eight on page three hundred and fifty dollars that comparisons with other  have shown a large disparity in fees that cannot be explained by the difference in services in addition to other evidence that the fee is outside the range of arm's length bargaining will trial be appropriate the district court framed its opinion using the structure that contentions of appellant the judge playing drew inferences weighed evidence or improperly resolved questions of fact ignore both the language and the substance of the opinion below i'd like to talk a little bit in response to some of mr robertson's comments and the colloquy with the court concerning some of the evidence and focus on four pieces of evidence beyond the sub advisor rates was higher than the advisory fee charged to date charged by davis to the davis new york venture fund eighty five basis points eighty basis points seventy basis points etc as opposed to the fifty five basis points the charge by davis to the davis new york center from before the st break point and the reason for those fees is the advisers do a lot more work than the seven visors encompassing everything and all of the work that's done by advisors are just flat out false every court has rejected they've been involved in ten or so cases all of which travel on this theory or attempt to travel on this theory and in every circumstance those assertions have been rejected the fact that the sub advisor the selecting the investments that's one component and it's a meaningful component of mutual fund management but there is so much more that is done to deal with the board to deal with the fact concious judge walker the fact that you say that the other side is making arguments that are incompatible with your position those arguments are based upon matters in the record and it seems to me that there could be giving and giving some thought now to whether or not there are responding to a summary judgment motion possibly made findings that were incompatible with that role that would be more senator there would be more suited to a bench trial  perspectives regarding certain issues there are controverted facts however the fact that the range the arm's length range includes the feel evill charge to the davis new york venture fund that is uncontroverted the supreme court has said in order to prevail and the plaintiff has never prevailed and pursue mclean pursuant to section thirty six b in the nearly fifty years since president nixon signed it into law near the end of calendar year nine hundred and seventy in order to prevail you must show that the fee is so disproportionately large that it there is no reasonable relationship to the services rendered and could not be the product of arm's bargain so you can have factual this regarding the quality of services but there is no dispute that this fee was within the arm's length range it's also true that a number of courts on summary judgment have found the other issues no genuine dispute and we submit there's no genuine dispute here but judge swain was very cautious and very thoughtful and she focused on evidence of the arm's length range and on that basis determined  carry their burden here i want to go back to some of the evidence of the field level i talk about the advisory fees charged and paid by the sub advise fund the nd thing is the selected in clip as the court discussed with mr robertson the district court considered evidence regarding the decisions made by the independent boards of directors of those two fines those boards approved advisory agreements with david to manage mutual red herrings like whether it's a diversified vs a non diversified find those sorts of things don't really speak to the level of services performed the character of the services the range of services the range of services relative to suffered by services is more narrow i understand there may be a factual dispute regarding those things there is no dispute with respect to the selected fund and the clipper fine as judge swing properly determined a rd category of  evidence presented to the district court with respect to the feel of all relates to peer group data liber data lipper a widely recognized independent provider with mutual fund data provided  data relative to c's expense ratio performance to the mutual fund board here that data reflected with respect to every year during the relevant period that the advisory fee paid by the davis new york was below the mean and below the median the th category of evidence before the district court related to fi level was an expert report perfect prepared by professor jonathan writer who examined the relative advisor feel levels in the relative total expense ratio of the fund as against fees charged by a peer group among other things professor reuter opined that the funds advisory fee was in the bottom forty percent in other words sixty percent of the pure funds had higher advisory fees and the funds total expense ratio was in the lowest fifteen percent a figure of purify the peer group in other words eighty five percent of the peer fund had a higher expense ratio  get you know your honor none of that is subject to dispute all of that is derived from public filings these are the mutual fund industry is highly regulated substantially transparent the one hundred and forty act overlay and the companion  regime provides for lots of reporting there's no dispute with respect to any of those things they're not only appropriate for consideration at the summary judgment stage they involve public filings of which the court could even take to this will notice at the initial pleading stage so none of that is disputed one question i had was why your side didn't simply after the evidence was as determined person who discovered just seek a bench trial let's just have a bench file compile the same record and then the parties if they need to cross examine somebody or they're going to credibility issues tell me what those are and then make your arguments in the form of a bench trial should only take a day or two because most of the evidence is really going to be essentially the same documentary stuff an expert report some things that are in the summary judgment record and they can just draw inferences and you're going to find it easier to win if you have a good case because instead of having to persuade me that no reasonable me could decide any other way than what you want you just have to persuade me that this reasonable me  finds you're right by a preponderance of the evidence it seems to me a much more efficient procedure but that's not what we've done here so we left with that in fact on the opinion that the goods made on the expert anyway what's done is done here so if we're to respond briefly to respond briefly to the court your honors we felt there was a basis for summary judgment here are cases brought pursu section thirty six the not infrequently are disposed of a summary judgment sometimes they're disposed of the mutual pleading stage pursuant to a motion under rule twelve b six that was the case with respect to this court's recent decision a looking holistically at the gartenberg factors and i would like opportunity to address those looking holistically at the gartenberg factors and giving every presumption in favor of the plaintiff in that case as nonmoving the plaintiff stated something that might be plausible with respect to some of the gartenberg factors but it was deemed by this court not to be enough even at the motion to dismiss stage we thought based on this record there is no genuine dispute the plaintiffs are manufacturing things quibbles relative to the board process what judge swine did here is consistent with john she applied a two step process analysis firstly examine the process of the fund board and its independent directors in reviewing and ultimately approving the subject advisory contracts the district court observers at six of the eight funder rector's were unquestionably qualified and independent to meet a similar observation and you can tell from public filings again with respect to the clip refine and selected fine unquestionably qualified independent of the review of the investment advisory agreement reflected what i'll term the hallmarks of responsible systems see process as framed by relevant court decisions year round compilation and provision of data engagement by the end dependent directors of experienced independent nine hundred and forty act council with whom the directors consult separately regarding the issues details requests for information and follow  on or supplemental request to which davis responded by providing a large volume of data including pearson data data regarding other advisory clients of data davis including the subject by funds including the selected funding clued in the clipper font the manufacturer the tax we term them in our brief quibbles and as noted by judged lang any attack on the independence of the directors who approve this advisory contract is baseless in weigh the factors differently that deference is appropriate and judge weighing tracking the language from another district court judge with respect to another thirty six b case pursued by opposing counsel says that a plaintiff should not be able to survive summary judgment through armchair quarterbacking and captious nitpicking ultimately and this is contrary to what they allege here on appeal or what they argue on appeal the district court threw all inferences in favor of the plaintiff and concluded there was no genuine issue as to whether the board was sufficiently the board of review was sufficiently robust and that the business judgment of the board is entitled to substantial deference as a matter of law consistent with jones once that question the board deference was addressed the court went on mr court went on to apply jones and the so disproportionately large test has adopted through garten and the court looked at various factors and looked at comparative fees it acknowledged in response to the court's questions factual differences where they exist but focused on whether there was evidence of issue profitability and performance and again the numbers there are objective the district court had the full benefit to evaluate them at the summary judgment stage the court properly determined to find liability here would amount to imposing a billing regime and that's something that is inconsistent with jones and gartenberg and to counsel mr robert from your  example of someone who's who would be a good witness a trial on credibility that could affect the outcome absolutely on the question of deference to the bird the director who that that dave was provided to the burger prospectus otherwise put choosing to credit certain testimony and not others that depends very much on the witnesses credibility d and seeing the witness when she says is charged and the pending client is a very important important issue for the for the bird to consider and if the bird isn't appropriately informed on that that undermines any potential deference that should be given to the birds a