that was a beatles song statutory right to bring an action against for to sherry's for breaches that cause harm to a plant and the main point i wish to make this morning is that that question is answerable but under ordinary principles of statutory  by a participant just for appropriate relief under section eleven or nine of the act eleven nine being the section that deals with fiduciary liability  language a language language i'm only speaking for myself no of the legislative history is supportive but that's not what we're primarily relying on we were lying on the words of the statute and the section in general imposes no requirements on participants imposes no preconditions on their right to bring suit the only limitation on the right to bring suit is the statue of limitations and beyond that you know participants have to meet general pleading standards but is it clear in this there's a free litigation demand requirement that's placed on on participants and as i said nowhere in the statute and you can read the statute as many times as you want you will not find such requirements or anything that comes close to suggesting that provides the background for risks of then the question of who has the right to bring a cause of action the nature of the cause of action on trust law does not speak to that question and there's no need to to look to trust flood to to answer the answer that question because by the time you get up one minute and i recognize that so take at least to me i thank you and i thank you just very briefly to elaborate on the aris argument then i'd like to turn to the i c result i'm sorry are as a result of the employer action exactly as a result of the employer's actions there and they could have been dismissed from the plant had there been a change in the in the in the funds available but this court's decision in graden in the decision of almost every other court has permitted employees who are no longer plan participants to enjoy the benefits of planned recoveries so while they are not and i get to that a bit in the i c a thirty six b point while they are not in the play and they would still have the benefit of any recovery and i would respectfully submit that the fiduciary obligations of those that administer the plan would be to recognize that if a prior participant has suffered a loss that participant should receive recompense the i c a thirty six b point asked the question of whether or not there is a continuous ownership requirement in order to maintain an i c a thirty six b  claim we respectfully submit there is not for four reasons number one that requirement is nowhere in the text of thirty six b number two that requirement would undermine the policies which animate the investment company act number three it's inconsistent with the conceptual basis of the continuous ownership requirement and number four it would introduce anomalous results into the litigation of thirty sixty cases the supreme court in khalis versus  he only owned an interest in the parent but the court essentially set forth a four part analysis of issues of this nature focusing first on the text second on the policy assessment third on the legislative history and if their silence on the implications of either of two rules in gallus the court observed that the statute issue there had no textual restriction on standing or that the owner be an owner of security at the time as to its file thirty six  is there second the policy of the investment company act has been stated in case after case and that is to protect mutual fund investors that policy would be frustrated by a rule that the private prior injured owners of the right to sue and in seven additional ways the policies of the i c a would be frustrated first when congress sort to incorporate a temporal requirement into a statute it knew had to do that incorporated into the securit how to be an owner when when the suit was filed secondly it certainly could have borrowed language from federal civil procedure twenty three point one the failure to do that indicates congress did not wish to do that second  would have an obligation to mitigate damages it would be highly inequitable to put a plaintiff in a position where they could not mitigate that damages by selling their shares in a in a fine and had to remain in the fund continuing to sustain a except that the case law that yields with that issue i frankly could not read the cases the same way my adversary but if they are correct that would preclude standing if you had to be an owner at the time from a third party that money can be used to pay employees for reserves to develop the corporation in the future in the case of a mutual fund all of that money is for the benefit of the mutual fund participants either by increasing that asset value or by increasing dividends so the mutual fund holder has an inevitable interest in that in that money which is different then in the corporate setting if i may i think i better move on to my forty seven the argument  submit that four cases dictate the outcome of this case insurance america versus lois the supreme court construed section two fifteen of the investment advisors act and held that i'm lucky that you no longer  to construe section two fifteen of the investment advisors act that statute was substantially similar to forty seven b which is before this court the supreme court in that one nine hundred seventy nine the citizen held that section two fifteen grants a right for specific and limited relief for a violation of the investment advisers act the application of that principle that this that you would afford standing the plaintiffs in  seventy the supreme court also decided a case called mills versus electro or to light a similar statute in the in under the securities and exchange act of one nine hundred thirty four section twenty nine b the significance of that case is twofold number one the court they're determined that statute where did similarly to forty seven be afforded standing but number two at footnote ten of the opinion the supreme court equated section two fifteen of the investment advisers and this court's decision in was new ski sandoval dealt with the civil rights act in the court held that section six zero two which merely afforded the department of justice the ability to adopt regulations did not extend standing to a suit for a violation private standing for a suit of a violation of that those regulations what is significant about sandoval however is that the court this might exist will passed as one to interpret the statue to determine whether or not it extends a private right of action inside a trance america for that proposition trans american fact that page two forty six articulated that very same test so alexander did not require from trans america which i submit is analysis is extremely significant to the resolution of this matter and was new ski section three thousand nine of the postal service act allowed a mail recipient to keep an unsolicited gift three thousand and nine c made it unlawful to send such a gift this court when it held that there was not standing went through the following analysis it  it that is not the case with forty seven big if then turned this quirk to a wifey analysis of trans america which demonstrates that that case retains vitality certainly in this circuit and throughout the nation and observed that it is different then this session to fifteen different from three thousand and nine say because two fifteen in the eye a afforded a limited remedy three thousand nine did not and forty seven b does so if anything forty seven b is a stronger argument what doesn't the fact that congress created a private cause of action in section thirty six b of the i c a suggest that it did not intend to create a private cause of action  section forty seven b i think not because then forty seven b would be rendered superfluous there would be no doubt he had a remedy but not a cause of action i would accept for the fact that in transamerica mills the corp both found causes of action there secondly the remedies available under other sections of the investment company act have been more broadly construed than what forty seven  does so if forty seven b was was limited to providing setting forth the scope of the remedies then the other sections could not stand on their own by providing by providing greater remedies and one of the other things that was newspeak were said you need to look of course of the legislative history on the standing issue the legislative history of forty seven v reveals that in one thousand nine hundred eighty congress amended that statute and a classic trust law process for recovering trust losses through suit on behalf of the trust and in the mcmahon case the court similarly found this court similarly found the trust law is incorporated nineteen to twenty kilkenny herro weldon wolf i'm sorry six cases it's care and began now in four of those instances you've adopted as ten other circuits have done a requirement of exhaustion of remedies even though five o two a one b of a recess contains no such precondition and in the other instances you found a precondition where trust agreement or collective bargaining agreement has required that you're all trustees join the suit or that the suit be first sent to arbitration so you've applied under the statute pre conditions and in this instance the statutory language that we point to an structure the trustees are at the heart of the statutory structure justice thurgood marshall said over twenty five years ago in the central states case for seventy two us five fifty nine that a recess clearly assumes very some special attention to not in these circumstances your honor it's their view is not espouse it in a notice and comment regulations so it's not entitled to chevron deference it is establishing a less formal mechanism so there's the question that can arise as to skidmore deference but in this instance we don't believe skidmore deference is warranted because like other positions the partment of labour's taken such as in the munched case that we cite one thousand nine hundred five case of this panel the department doesn't take into account balance that's required under risks of the statutory provisions so there statutory reading we believe is incorrect we also believe that their opinion apartment has supervision or control over of us it's shared between the department of labor in the treasury department although the department of labor is entitled to make regulations issues advisory opinions so that doesn't mean we should give it some heat well under under this court's precedence when the opinion is not persuasive when it's not consistent with past decisions when it's not subject to notice and one who is alleged to be a fiduciary i'm not aware of the department of labor submitting a brief in the bickley case we believe your honor that the partner of labors we know in our brief has said in the past that a planned asset includes a chosen action suit and consistent with that view trust law says even suits against fiduciary and we say these cases if it page fourteen and fifteen even under the common law of trust going back for centuries a suit against a third party can't issue we weren't able to find any on this particular issue the legislative history does talk about the unique role that congress wants for trustees but this particular issue we did not see addressed and i want to note that  these three plaintiffs are no longer plan participants that's contrary to his pleading the second many complain a paragraph fifty one and fifty two indicate they're still participants and in fact it's an important distinction because the plan as far as  filings both plans still exist they've simply terminated their contract with john hancock so the plans no longer have a relationship with john hancock but there is still a plan and there as far as we know although it's not in the pleadings and we have no relationship with the plan there still may very well be trustees in the trustees are required under for a three day they point in their briefing to the fact there's an exception to four of three a four a three day but in this case it's unsuited that the contracts were issued to trustees so even if the plan could have to cause to have trustees and availed itself of that for a three d exception it didn't do so do you agree that the second amended complaint at least adequately alleges that john hancock is i do sherry we disputed that in the district court and judge martini didn't rule on that alternative ground we accept for purposes of this argument that john hancock should be treated as to do sure that we dispute it but we think the trust law one of the cases that we identify indicate that extends to suits against th and all know in this regard thinking about the four three b question this court decided a case walk tell vs health net in two thousand and seven for eighty two f thirty two twenty five and at page two required to take action on behalf of the plan as a whole of all the participants interests there were services identified that in this contract that we put in the that we identify in our statement of facts tax reporting services plan administrative services that individual participants might have no appreciation that there was seating the services and the trustee decided which was his right their rights and two different trustees or two different plans their rights to allocate the cost for the services to the participants so we think the rule that the longstanding common law trust will protect participants protects the plan is them the opportunity first to bring their their complaint to the decision maker who hired john hancock and since fired john hancock and add something to the second portion of why i don't want to add anything to the second part i think that the trust law requires that that be added your honor and that's the structure of a risk everybody has bad that's that no not at all your honor  but the statute distinguishes between participants beneficiaries fiduciary and the secretary of labor in the enforcement provisions so simply asserting that a participant we need to make sue if the trust agreement says all fiduciary should join that's a precondition it's not a precondition that would apply to the secretary of labor nor would this precondition applied secretary of labor or would like to turn briefly to the investment company act unless there's other questions under risk with the investment company after honor's and the first thing i'll say is that mr lake and discussed extensively statutory issues are arguments principally a constitutional standing argument section thirty six b that the the plans that had interests in the john hancock mutual funds have since terminated those interests and under longstanding constitutional we don't know why the the letters we put in the record your honour's right after the contract in the joint appendix they don't offer a rationale for the trustees decision but it was entirely the trustees decision and under a longstanding constitutional law as a political to derivative suits once a plaintiff no longer has an interest in the entity on whose behalf she seeks to recover then constitutionally regardless of public policy concerns or statutory concerns constitutionally that person has no interest in are repellants rather pointed in their reply brief for the first time to an analogy to wrestle law and they point out that under a certain types of a recent plans individual account plans for a one k plans a participant may sue even and explains that unlike a risk individuals account plans where the individuals interest is specified in the specific accounts that he or she owns in a corporation including a mutual fund in the s expands the analogy for a mutual fund to a corporation in a corporation person as an undivided interest in the corporation's assets and so once the corporation recovers the individual has no particular interest except for the value of the shares interestingly late last year after the briefing closed the securities exchange commission instituted a cease and desist order with morgan stanley over thirty six b violations and it didn't require morgan stanley to go find the former shareholders to pay it the money back to you so that we don't see the recent allergies being apt in we think that the constitutional principles certainly stand on their own and and through the cases that we securities exchange commission could make certain requirements but there's no obligation by operation of law that we're aware of nor that appellant's have cited that would require such individual tracing nor would it be consistent with the structure of a mutual fund in fact it's the transfer agent of the mutual fund that actually distributes the shares as if i hit you take it as you buy it just like any corporation you may be a corporate shareholder and maybe dissatisfied with certain corporate management decisions and you sell your shares and you buy a different different company well maybe some day those decisions that you didn't like back when your shareholder come to fruition it's the new current shareholders who profit from that the corporation doesn't have to go find you and give you money back once you've sold your shares case that we cite references with respect to the final issue under section forty seven b of the investment company act your honors the i think the decision that we five of the smith decision addresses the very securities and exchange act that the mills case relies on that he talks about and explains why as judge can ask you pointed out the forty seven b provision investment company act is simply a remedy and not a private right of action unlike a recess section five zero two eight two that we're talking about that explicitly states a participant may sue section thirty six b which pretty specifically states as security holder may sue section forty seven b has no such language and in fact contrary to their briefing where they say that forty seven b has the same or similar provision as the investment advisers act an two statutes use the word void and in one thousand nine hundred investment company act was explicitly a revised to eliminate the word void that was found so important in those other statutes so i see my time is up but if there's any questions  trace prior mutual fund holders number one as a practical matter there is everyone who has participated in a mutual fund gets statements knows what those statements say but the court need not rely on that because the code of federal regulations and other sections that feel with s c c settlements have requirements for the development of fear fund distribution plans in almost every securities class action that involves a mutual fund has a fair fund distribution plan that protects both  k we have a lower standard of proof with regard to whether the fees or excess of under the i c a we have frankly have fairly high standard of under harris forty seven b i think schiff's if we're correct the standards in lowers it but there are different elements and different standards of proof i just think back with lee we have to tell that this is something that we reach them you have to tell the district or something is there