california regina law no one seems to be saying those two laws are relatively different as far as i can tell so the question is what does the word related mean you know now there are some authorities cited that suggest related you know fees and excessive fees paid out specifically involving the active market funds well some others ok now you want to say that the marshall claims are not related are you standing up here contesting that  the internal fee capture between the two that that piece of it isn't really that that you have ok why why you say that the plaintiffs are different the board is different cetera d can we at least get agreement on what the ground rules are here there's a lot of discussion about these statements a litigation the judge saying this it's a lot of seems like destruction should we just take the four corners of the complaints and just put  up against each other and then compare whether the cause is played in the nd lot of the same as the cause of the st we're usually using language complaints in deciding these duty to defend issues anyway isn't that the cleanest way to decide what's related agree with you ok so we can we can we can set aside those those those other distractions of statements what makes the northrop's only feet capture not related to the fee capture in the st one dollar i agree there are several other claims we have located there's a paper play allegations thrown in there but that you were brief oversimplifies and saying this is really just a pay for play allegation that's like a duty a loyalty but there's some basic you just over make any of you didn't obtain a competitive bill of all for consultants and that's completely different than saying you didn't follow the advice of a council which you have been great about also in marshall the allegation if you didn't fall the terms of the administrati had their fleeting some subset of it harsh that's not enough to say that what is played in marshall isn't related to the earlier ones i don't think dropping some things that are unpersuasive this is surely means that what remains is a really you know violation being alleged but the court judge as we held in that case it's a different acts a different times with different people and there are different group a litigant and therefore and in the context of class size if a group of litigants here yes the last certification it would be all persons who are or were or are beneficiaries of the plans during the class period who were affected by the conduct occurring during the last period the it does make a difference but there's different class birds in different class members you could have class members in grade back who may not even be around at the time of the martial class option you also the conduct it related doesn't mean either no one is claiming it means identical so i don't think a few plaintiffs coming in and out of people moving on the board is going to change things you do have this question we have to wrestle with this is it's a follow on it's a later time period is that enough of a continuation if we don't buy your well let's look at the they did list of the consult with didn't hire the consultant i would have thought your best argument is this like hewitt record keeping fees keep claiming why don't you tell us is there something specific about that that is fundamentally different from the investment advice claims that are in great pick well i mean we we do across the u s and find you up and  emerging markets they were doing markets claims completely different because that had to do the theory and marshall is the they aren't excessive the fees works because they didn't or not ok great it is there basically no conflict of laws in the in the virginian kept between virginia california as as a as a place in this case certainly not on duty before and what's interesting you'll see the is all basically the same law what really did me with one nuance k we believe delaware law would apply but we don't believe that there's a significant difference in the relatedness standards under any of them did you raise that in a district court we know did it to the district court in a footnote that said we did not believe that there was any significant difference in the standards that would result in a different outcome but did you say dover law applies we did not hand waving about statements made litigation judges etc not sure i see that any of that matters but if it did matter is there any reason why we should look at the four corners of the complaint controls ok and the delaware supreme court case in a t t v faraday says that each cause of action within a complaint can be a separate claim and basically here which you've discussed already with my colleague there are three basic claims in marshall there's the prohibited transactions excessive fees klein is the rd party administrator hewett financial engines claim and then there's the claim that the wrong investment strategy was used in e m f and those are the three claimants in marshall if any of those three claims is related to a claim in grey back then access has a duty but you guys are happy with that now we'll have to hear from it all from national as to whether all of them are related but what's the best case for saying at least one of those related credit transactions there's no question that's related same activity continuous time period basically both marshall and greyback are saying that there was the plan used northrop the allegation is the plan used northrop to perform plan services and they charge excessive fees for exact same claim repetitious in the two to open access i think i think the hewitt fees claim is you know it may be more contestable it may not matter for your purposes is going to ask your friend for national this but what's the argument th hewitt claim is still related because their argument especially in the brief was curlier busy claims are about hiring investment advice and this one is about record keeping investment management in great pick and now we have record keeping it most investor advice so are those that are those related to your honor's we don't think those two claims are related for purposes of x this is obligation all we need is one related and then they have a full and complete team to defend their important to go to the contract on that just for one second the contract says that there's a a separate defense agreement the duty to advance is treated as if it was a duty to defend and that makes sense because there are other there are two other provisions within that defense agreement one there's an immediate duty to pay you have to pay within dollars days number two you have to pay before the underlying case is determined so wouldn't make sense other than it was a duty to defend half of the other two provisions so all we need is prohibited transactions relatedness access has a full obligation to pay the defense costs we have an interest however that this court gets the correct result as to the other two hewitt was not raised in great that there's no claim that there was a rd party administrator that was overpaid in fact the claim in great that is that north wants us to look at the view of the very particular this consultant this accusation your your friend for national union wants us to say hey you know either these are all rich receive produce year i'm not sure he's and costs and that's a lot more specific than the universe of general arisa claims that are out there so how do we figure out if level of generality you're picking a lower level but the word related is a pretty broad word doesn't the case law suggest we should take a higher level approach you know your own i don't believe i believe the case law says that you focus on the wrongful act that's the poke is really wrong on the wrongful act wrongful act is the specific and they say that if they are disparate x if they are different x if they have a different decision making factor to them then they're not related to the other cases that say that holds relatedness if you look at the x very granular level those cases own repetition of the same act it's the same wrongful act it's the same complaint of the plaintiffs that something is happened over and over again that's not the case either with respect to the rd party administrators or with respect to the e m f claim e m f right managers and the reason you didn't get the right managers is because you got a kickback those are completely different claims so we would say we look at it that way we can also look at the level that you're paying too much for  f and there are all d lot of fun games to charge much less looked at that way they're related the same kind of fun and seen kind of harm and maybe even motivation the way it was done was a little bit different but because those cases say that you don't look at the ten thousand dollars foot level you look at the granular level as to what the act is and if they are different wrongful acts if they're disparate it has to be crystal clear that northrop gets its defense costs and if there is any contribution between the carriers that doesn't involve northrop my question is  are you your friend across the way there talked about the marshall settlement or do you have a different view as to move this year slightly different answer axis started paying the marshall defense costs after judge brand said you ordered to pay him i mean judge grant came out with his decision and access started paying and they're paying under a reservation if this court says something different th they're entitled to make another claim on the money so it is not a moot case thank you thank you your hono court my name is sean honey and i represent the appellee national union fire insurance company of pittsburgh the district court in this case correctly determined that marshall is permanently parked in northrop's two thousand and six coverage tower because marshalling greyback are premised upon an alleged continuous single scheme by northrop plant administrators to cause the savings plans to overpay northrop and others because of a series of interrelated poor investment and administrative decisions i'd like to pick up on a point that your owners brought up with mr placement just now about exactly how related these these claims have to be and i think that in this case the correct answer is that they are related because it is the wrongful acts that have to be related to wrongful acts here are the it related poor investment in a ministry of decision because these plans to overplay overpay i don't think it makes a difference that either they were different parties involved or different members of the committees or that the way that they because the funds to pay more than they should have was because of an investment strategy or because you didn't outbid the services to others it's all the same and i think that frankly that's comparable to the attorney in cities who in a number of ways called his client not to be able to recover the funds one way was because they didn't file mechanics let you know he didn't file a stop notice for the work that had to be done he structure project and they didn't follow up on that months later i think it matters that you can you can have it in a related series of wrongful acts even if every every bad act here is not exactly identical the law does not require that both cases have management home insurance do you think they're misreading them or do you think the city says the better just a better president to follow your i think bases is the better president and i don't think you're rico plies eureka involve a series of two hundred unrelated borrowers and in the end what was called an aggressive loan policy by the alleged perpetrators of that scheme that's much more general that's right fifty thousand dollars foot level that's not the same as a much more discrete class of persons who were harmed in the same way by the same plant administrators in this case everybody in the class in grade back and in marshall they're all northrop grumman employees they're all participants in these plans i also don't think as a sidebar it was raised that whether there are two plans think the harder things for you are st of all i want to hear about the martial being a time period that follows ah great day rather than you know a bay city situation where it's all part of one representation on the same time and number two i think the hewitt claim is the hardest one for your side because the great bank allegations are allegations that they're charging excessive big investment fees what is the st time we're getting this specifically recordkeeping claim in investment advice click so you can take those in either order but i want to hear you address both so let's take the time period st the time period difference between the class period in marshall greyback is immaterial to the outcome in this case because it does not matter that there can be some intermittent space between wrongful acts that the standard does not require that wrongful acts have to occur continuously every single day during the period it is in fact it's actually the period between the class periods when compared to the length of the great back class period and the length of the marshall class period is really not that long and it doesn't mean that there wasn't a continuous single scheme by the same plan administrator to cause these plans to overpay so i don't think it makes a difference that there was a little bit of a gap between one period and the other it also but also point out that whatever the plaintiff's decision in marshall whatever the plaintiff's lawyers decision was to start t class period there might have been based on other things like legal reasons statute of limitations reasons that doesn't mean necessarily that the wrongful acts complained of in the marshall class period or somehow not related to the to the wrongful acts and great back to your o question which is the hewitt claim the allegation that in marshall that record keeping peace were excessive and that the plane administrators didn't take advice or didn't seek advice from other investment managers i think at the end of the day number one d the allegation is that he calls the plans to overpay and i think the allegation was that they didn't hire other investment managers who might have told them that this plane is paying too much and you should keep a lid on all these expenses i think that's related enough i think that's causally related and that does mean that the allegations in both factions overlap and we anything into the fact that the same plaintiff from same judge and the judge didn't expand the window the nd the marshall litigation began absolutely i think that that's very telling in this case that the the great good plaintiffs st and by the same walker representing the same kind of participants in the class st sought to stop the martial allegations at the time period at least integrate them they once they were denied that request only three months later did they the marshall action i think is a very good or commit on the record in this case that the only reason marshall was filed and decided the same district court judge that's absolutely needed related case will out there yes that's absolutely correct and it's the same district court judge that later on the ruling on a motion to disqualify defense who was an attorney in gray back stated on the record that marshall is substantially related to great back and in fact everybody except for axis in this case agrees that marshall is related to  greyback the plaintiff's law firm in both actions stated that in the marshall complaint northrup argued that in the district court in order use it again here just argued it minutes ago and we agreed that we've actually another point that i think what access wants to do here at the relief that it wants would upset the bargain bit northrop and national union struck twice in this case so d go ahead make that point i have a question about it certainly your honor the point i wish to make is this in two thousand and six northrop a national union agreed in the two thousand and six policy that any subsequent claims that are based on a rise out of the same related wrongful acts as a prior claim would op and national union for northrop it means that they have an expectation that only one self insured retention will apply to claims based upon related going full x here that's two and a half one million dollars there is also a benefit to national union but only one limited liability will apply to claims based upon the same or gone well at least so what access seeks to do here is upset that bargain even though it's a stranger to both of those contracts if you reverse the district court's judgment in this case that's exactly what would happen here that also means that access has no rights against national union based on the district court's judgment to recoup anything later that you have a question you're right i do i mean could be past time with my colleague or belgians i have a couple of things to clean up one of them is so let's talk about how the tower works when we're talking about in short shirred versus primary insurer we pluck contrapuntal and by we read policy against it does that mean that to make sure all the policies keep interlocking in the same way consistently across time we're also going to apply contra profit random against the higher level insurer in favor of lower levels of each of these policies even when it's too insurers disputing whether it's related or not we're still going to apply cont him how is that going to work to ensure that the stacks are always being interpreted the same way and ensure continuity of coverage over time i think that we i think that because access is not a party to one of those contracts it doesn't have the in that sense although i don't think it's relevant to this case but i think in that sense it would be entitled to less deference than contra program that would apply in other cases but here i think it's moot because north agrees with us north of agrees that i don't think the panel needs to reach that question however what i do think for purposes of access is the temp well the suggestion in the briefing at least that access might have some revenue against national union after it advances all these defense costs we would disagree with that ok if i could just clear the ground berthier caught your brief agreed that virginia ok and then finally on the four corners do you think we can just put the two complaints up against each other and compare them is there any reason we need to go beyond the four corners or a legal authority that says we we should i think you can compare the complaints i mean the only  thing beyond that is other than the admissions by the parties and what they've argued here and what positions they've taken with respect to this case but i would agree that the complaints governor here for making for purposes of making that comparison and i would if i may just leave the panel with one final thought i think that in this case gray back in marshall or sibling family cases i think siblings in a family may not be identical in every respect and they have been born at different times but their d n a substantially overlaps here doesn't apply in this context because it is a fact that they can choir and i think it does make a huge difference that we're talking about two different class actions i think the check right distinction is really important but going back to like for example but in eureka the courthouse or wait a minute there were numerous intervening business decisions that took place after the aggressive loan policy was initiated never acquired the existence of independent business judgment the same thing we have here intervening business decisions that require the existence of independent business judgments during two separate class periods in north river at the same situation the overarching big thirty thousand dollars foot allegation was aggressive business decisions we're talking about decisions here in this case it's all like a mess representations of ambitions case or some i just blurt something out at large to the world these and all these are producer due to kind of all separate business decisions the distinctions that you have to make