trustees through disloyalty and imprudent caused the trust to lose seven hundred and fifty million dollars this suit presents a just issued bull case or controversy for three reasons st my clients have an equitable interest in all assets of their pension trust that is a property interest and when seven billion seven hundred and fifty million dollars of that property was lost my client suffered a concrete injury respondents are between a rock and a hard place they can argue that participants have an equitable interest in only some of the trust corpus because the trust is un segregated and undivided so they're forced to take the incredible position to quote their brief that define benefit plan participants have no interest in plan assets if respondents were right no one would have an equitable interest in any of the trusts assets but a trust can exist unless someone holds equitable title to its assets and that someone here can only be the participants nd and independently my clients have a right to loyal stewardship of their retirement savings when respondents engaged in self dealing my clients suffered a concrete injury under the centuries old no further inquiry rule beneficiaries could sue even when there was no conceivable possibility of a financial loss the breach itself gives rise to a case or controversy in any event and rd my clients have representational standing to vindicate injury to their plan since before the founding when the trustee was unwilling to sue equity courts allowed beneficiaries to do so on behalf of the trust and so i'd like to begin with our property injury a defined benefit plan under arrest is a private exchange of workers forego wages in exchange for a promise of a future payment secured to buy trust property this is critical because there is an unsavory gated undivided pool of assets the trust that pays the pension of all the beneficiaries so plan participants like my clients have an equitable interest in those assets as your argument depends upon a forward looking theory of injury in other words if you it's one thing to have a conflict of interest or all the other things you allege that lead to a situation that causes you no direct financial harm but it is your theory that will because they did that in this situation and even if that didn't hurt us somebody like that is likely to do it again and that might hurt or is it purely the fact of retrospective this person did something that under common truslow guard is a bad thing and under the no inquiry rule that's not enough so you shouldn't worry about the fact that it didn't harm so the answer to that question is we have multiple multiple concrete injuries here and the things that we're seeking flow from the particular injuries right so what i'm talking about right now is our property injury if we're right that we have an equitable interest in the assets that theory depends on a diminution in the value of the trust asset so i don't know i wouldn't call that prospect of i would say the trust lost seven hundred and fifty million dollars and what did your clients lose i'm not your friend on the other side says they get nothing they're in the same position if you win or if you lose what i mean i i couldn't disagree with that more there's always risk pension plans fail businesses fail in two thousand and eight and id had one hundred billion dollars until they didn't and all those or other situations they see in this case may well just look at it abstractly and if you don't say you need six hundred million dollars in your fund to everybody you feel comfortable your clients are going to get everyone's benefits and you know there are eight million dollars in the phone and there's some fraud that reduces it to six one hundred million to seven hundred million do you think you could sue on that that misconduct by the trustee well if if the assets of the trust are lost and there's been a breach yes i don't think it's abstract at all if i alone if i loan bill gates money and take us and i take a security interest and he destroys the secured property he own cumbers that he burns it down i can still sue him even if he makes every progress payment and happens to have one hundred million dollars in assets because we recognize that having a security clients probably the beneficiaries property is completely secure and the gates hypothetical i thought you were suggest you seem to be suggesting the security that they're protected the the interest of your your loan was was destroyed but in my hypothetical it may not be your case but in the abstract what's alleged to have been wrongfully done doesn't affect the financial security of your defined benefit plans you can still sue persons or bad guy no you can still sue but not because the person's a bad guy but because your property interest has been impaired i want be very clear about this to have an equitable interest this has been the case since the th century to have an equitable interest in trust as a beneficiary has never had to show that she's likely to receive the trust assets as long as she has the possibility of benefiting from the assets she has a present property right to prevent others from damaging them that's the to secure them against anything and the trust corpus goes from eight hundred billion the seven hundred how are they injured in the terms of article three in the same way that if i own property and you come in use put your toe on it even though i never saw you you didn't step on my tulips you didn't upset me in any way you impaired my property right what if what if counsel i mean just to put the chief point in a finer light even than he has which i think he's done an admirable job of let's say this were a defined benefits plan rather than defined contribution plan and let's say that start this were defined contribution plan rather than the fund benefits plan and and the menu of options is very good most of them are clean but there historical standpoint this is probably what we're describing here in terms of the property interests impairment has more of at least as much of a historical pedigree as key to him suits and from our agency and this court has said time and time again that if suits existed at the time of the founding it fit the definition of case or controversy from a constitutional perspective if we do that i don't remember the th century surprisingly but nonetheless we did look up loyalty but you say i think shows are pretty accurate people with an interest interest like beneficiary can sue the trustee for breach of the loyalty or he may be invested in a great investment for them but he shouldn't have because it helped him  too but there was a duty of prudence which seems what you're really interested in and there you couldn't that is to say they said that the life beneficiary could sue for loss of income but if there's no risk of loss of income begins a remainder man could sue to injuries to the principal of the trust but that's all he has an interest in and as long as that's safe he can't now if that's the right analogy i would draw from that you that is what i'm talking and there the remainder man could not sue absolutely were not a remainder meant to argue that what is your interest in the money in the trust that is any greater since is fully funded and everything and has many many sources that was greater than the remainder man's interest in the income that's being paid out of a bought a corpus which you will eventually get which isn't hurt the answer is we have an interest in a promise a future payment secured by the entirety of the trust corpus and let me tell you about history so the rule for present beneficiaries with a contingent interests has been settled since at least eighteen thousand and eight dollars according to the english courts of chancery i would point your attention to alan vs alan this is thirty three english reporter seven o four here is what the english courts of chancery said and it's followed through in every case that i have seen a president interest the enjoyment of which may depend upon the most remote and improbable contingency is never the last a present state yes that's you're talking about a contingent interest a contingent interest is an interest in a certain set of a certain property a certain body of money a remainder man had no interest that's right we have and he would but he will do see not a contingent interest he had no interest in anything except the body where th why it's hard to see a difference between that remainder man and the interest of a beneficiary here's the difference the difference comes both from the plan document in this case and let's start with the plan document it's pages sixty to sixty one of the join here's what it says and this is representative of every defined benefit plan i've seen it says all of the plan assets and that's not a contract that stocks bonds investments shall be held in trust a trust fund separate from the bank's assets it says the trust assets can only be used to benefit the participants except as permitted by resend the tax code or rescind the tax code are very clear they prohibit taking or wasting any of the trust assets including the surplus so the point that's being made here to do what i believe you are asking mr chief justice which is a fair point is well you may not need the surplus so how do you have an interest and our core submission is that since the th century the way trust law has worked is it is it is conferred a property interest in the corpus without any case by case assessment you have some strong arguments i want to get this one question before your time is up i mean you have arguments based on  congress having granted the right to sue and you have arguments based on the and now the the analogy between trusts law and the receipt but a recent plan is not a trust in the normal sense of the word let's put all of that aside i want to hear about practicalities so let's say a beneficiary of the defined benefit plan comes to you and says i don't know anything about a receipt i don't even know what it means i want to think about trust law or the th century or anything like that what i want you to tell me is what is the practical chance this is the beneficiary of this plan and i'm not going to get paid my benefits what do you tell that person so that that's a totally fair question and let me answer it in the context of this case and i mean this very seriously if you look at our complaint joint appendix page ninety paragraph one hundred and sixty seven dollars we pled because we believe that there was a substantial increased risk of default here there was seven hundred and fifty million dollars less when answering let you plug that but compliance with article three has to be reassessed at different stages of the proceeding is there any is the risk greater than the of defined benefit plans change is incredibly quickly the harley case that of the th circuit in one year there was a six hundred million dollars contribution but the plan was eight hundred trillion eight hundred billion dollars underfunded because  detroit because of that the congress exercised their judgment to say we're going to confer a property interest in the entirety of the trust corpus so we don't have to do a case by case assessment because congress made clear not only the plane but the employer and then the p b g c which you haven't mentioned at all is employee here in the combination of the plan the employer  government it's what happens is there a premium payment so it's doesn't function that way but more importantly the p g c doesn't fund anything above a minimum set of benefits the corporate here's the answer to the core practical question but they exceed the benefits of your clients in this kid there are two things going on here right now i want to be very clear that yes yes my client yes but there's two things going on here just as kavanagh and it's really important to separate them out what matters for standing and why we care practically i'm answering the latter one and what i'm saying is in any individual case you don't know whether you're going to need the surplus in till it's gone i think if the financial collapse in a i g and lehman tells us anything it's that so if i am right that congress said in exchange for a tax benefit you have to put all of these assets in trust you have to confer a property interest in the fall so the full trust i have i'm right on standing and there's an article three injury you don't have to inquire into the risk but i also have a practical answer that doesn't matter for standing but so that you don't have heartburn you can see why any sensible policy maker would make that decision that's never the court of appeals never reached the question because it held that we have no standing so you don't assume in doing the standing analysis that that claim is gone the only reason that's gone is because we weren't able to appeal it based on this court decision until it will clearly be reversed thank you counsel years of trusts law and it's expressly in a recess text as well and that rule makes really good sense the beneficiaries are the ones who are getting paid out of the trust the beneficiaries are the ones as this correcting eyes and russell who have an interest in the financial integrity of the trust and the beneficiaries are in the best position to monitor and police the trustee for breaches of trust and that's why the traditional rule as my friend mentioned earlier is that even contingent beneficiaries could sue a trustee but the rule goes even further than that if you read the treatises even discretionary beneficiaries could sue a trustee for breach of trust these are beneficiaries who have absolutely no entitlement to any trust assets except those that the trustee in his own discretion will give to the beneficiary nevertheless a breach of trust would allow the beneficiary to sue that very trustee that history i think decides this case we call than about the defined contribution plans let's say the trustee is left with discretion after everybody's paid if there's extra you can throw it to somebody even though it's not in their own contribution plan so i think you would say the result would be that every single beneficiary and could sue even if all of their investments are clean for somebody else as defined contribution plan where the where the where the plane might be dirty is that right paul i i think that might follow and i think it might i i do think it might and i think that comes from not only are the pieces we've laid out in the case and trust law and the undifferentiated assets but also from this court's decision in the rue in lieu of course this court held that the plaintiff who is suing over harms to his own account nevertheless could maintain a suit under fifty to a two for harm to the entire trust because the trust included the account the account was part of the trust so i think on that theory then if you just extend it that would have to be the logical answer happy yes but i don't want to sue for everything but i want to hasten to add that as a practical matter these cases especially in the posture you just mentioned are going to arise in the class context and i think it would be perfectly reasonable for a court to look at that and what it will likely do what about just recently those media or the likelihood of getting a discretionary benefit from the trustee might be less than the chance of being hit by a meteor but article three have something to say there are you saying suggesting no everybody can sue for everything anyway so historically trust law has allowed the beneficiary to sue the  discretionary beneficiary to do so and one might imagine when you sue the trustee he's probably not likely to exercise his discretion in your favor but nevertheless you are allowed to sue what article three has to say about it and i know there's a lot of doctrine around article three but i think the key point in spokeo reiterated it in fifty years of case law has reiterated it comes from the words cases and controversies in the text of the constitution and the meaning of those words at a minimum includes the cases and controversies heard in the courts of westminster and in the colonies that there is that the term i'm sorry the tension in this case as i see it and i think it's a close case is that history is strong but the answer the question it's ninety nine point nine nine percent certain that the benefits promised are going to be there and how do we resolve what i see is that tension because  it would be odd for us to grandstanding in a case where the the chances are so small on the other hand you're right about the history i mean you make a good point about this yeah i think the answer really is the history but to the extent you know there's a chance i guess i have two answers to that one is this court has and certainly the no further inquiry cases make clear that even when the trust benefits from a particular breach of duty you still have standing if you will to sue and you know one case out of many that we've cited is mcgruder against jury that's a decision of this court in which the trustee was making loans on trust notes and allowing the trust to acquire those notes and it was on there was no question that it was on beneficial terms and there was no question of the trust benefited because it could make these reinvestments and save brokerage fees that those are in the facts of decision of this court nevertheless the court said that you know not only did the beneficiaries have standing to sue it didn't discuss standing but they were entitled to recover so that's one answer the other answer to your question is no matter how low the risk might be as my friend mentioned p v c tells me that plans that are highly over funded the next year become matters as all no one has ever suggested that the mere fact you might have insurance means you don't have standing to sue someone for the harms they was lahman if it's the combination of the plan plus the employer plus for p v c would all the fact that there may be many layers of insurance if you trusts had an obligation to step in and increase the amount of money in the trust in order to to ensure that beneficiaries would be paid not not to my knowledge and i mean that's the big difference between the situation here and trust law i don't think it's due i don't think it's a distinction that that makes any practical difference at least for article three it is an additional protection that the drafters of research wanted to make in addition to making the plan it own entity those are all additional protections for beneficiaries precisely because in congress the judgment is this court laid out in footnote eight of russell trust law was not protective enough of beneficiaries and here's the point and this is the finish my answer to your question kavanagh to merely say it's highly likely you're going to get your money back is you might say that if for example to pick up on my friend's analogy you know you were to loan money to bill gates you're pretty sure he's going to be able to repay your money but the difference between having the repayment or the money you're entitle to come as a result of a contract and come as a result of the trust is very different you get a very meaningful benefit from having your money come from a trust and that is economic goes up it's over funded ok once it's over funded everybody is just as well off as they were before that happens probably proud a lot now if we if you do what in the law prevents a class action every time it goes down and then it goes back up and they're better off and you say well i were talking about yesterday what prevents something should prevent that now what is it that prevents well i'm not certain what this standing business can protect against that if you have suffered an injury of a peppercorn you have standing to sue now you might there might not be but that of course i want to say ok your answer is nothing protects  get it it's hard to answer that question in the abstract what i do know is that in this particular context there are trust duties that are set forth in the law i know by some that this is a duty of prudence which means you made a bad investment and you do make bad investments and you can say well the trustees ok but i did wonder if there is anything that prevents against the rollercoaster which would mean many many suits even though the beneficiaries are even better off sometimes after the stock market finished its little rollercoaster the you're saying nothing ok i got the answer well aren't aren't you saying what i'm i'm sorry are you saying the difference afforded to the plan administrator is on the merits that that it was properly applied that's exactly right and i looking at the history this significant of article three to our role in the separation of powers the requirement to decide an actual case or controversy is the only thing that gives us authority to do what we do and so the fact w you say in history in you know fourteen whatever you didn't need to show that will that doesn't necessarily take into count how article three works today under the constitution that may be right but as i said the magruder case and many others that we've cited in the briefs to do recognize th principle of trust law and i'd also point out that nobody disputes that if the allegations are true that the plans loss of seven hundred and forty eight million dollars if i mean even if it is a injury to the plan and the plan itself would have standing to sue but of course the plan's not a human being someone has to sue on behalf of it when the trustees the one that has caused that loss the one person who's going to step into the shoes to sue for the plans injury is the beneficiary thank you counsel thank you mr chief justice and may please the court there is no a risk exception to article three like all plaintiffs in federal court those with the risk of claims must demonstrate injury neither petitioner here can do that this month petitioner james  will receive a pension payment of two thousand one hundred and ninety eight dollars thirty eight cents just as he has every month since his retirement from us bank and petitioner sherry smith will receive the same forty two dollars twenty six cents cent payment she has received since her retirement if this court of firms dismissal of all of their claims it is undisputed the both payments will be exactly the same every month for the rest of their lives not one penny less if on the other hand this court order reverse this case were  litigated to judgment in favor of plaintiffs and they were to receive every single form of relief they demand those payments would also be exactly the same not one penny more federal courts are not available to adjudicate claims like this  not matter to the plaintiffs whether viewed as a matter of article three or statutory standing none of petitioners arguments solve that fundamental problem with their case st trust law beneficiaries could sue to challenge  breaches only when the effect of their interests on the harm to beneficiaries could not sue nd petitioners lacked any property interest in the trust underline this defined benefit pension plan that is because of this court explained hughes aircraft their level of benefits is on connected with the value of the assets in the trust corpus u s bank not a participant bears the risk of loss from poor performance and u s bank not a participant benefits from plan over funding  rd petitioners cannot sue in a representational capacity on behalf of the plan unless they have their own injury in fact for the reasons just stated they don't mr stress started off by saying that they have a property interest in the plan but under the structure of arrests and under hughes aircraft they don't at the trustee owns legal title of the plan and owns and the equitable interest in the plan is is the plan itself holds the equitable interest in the plan the and this the fact that they have no right to sue over the fluctuations the ups and downs in the value in the trust corpus is actually entirely consistent with the history trust law they don't have a contingent interest in the plan in the sense of if a happens they may inherit all of the trust corpus or if the happens their benefits may get up made may go up they have no such interest and trust law and fourteen commin b all stand for that proposition that it's a different situation if you have a contingent beneficiary situation where there are two benefits you are not so and which a participant in a defined benefit plan would have standing and can you describe the particular line that would separate that from this case yes your honor i think a participant in a defined benefit plan would have standing consistent with normal black letter article three principles if they could show that there was a risk to their benefit how would they show that how they show that well they could show a i'm not getting paid what i was promised to put aside the not getting paid but if they're still writing paid how would they show what would be the particular so you think would be nice well i think you know i don't think st of all i would just preface my remarks by saying i don't think this case calls for her to understand opine on that because they've said that there's no risk at all that's required but i think this court i think it would be simple factual application of clapper where the court talked about imminent risk or a substantial risk right i know the terms i'm just trying to figure out how i think and i think those terms are flexible enough to take into account the long term hard time horizon of a pension plan so i don't think you have to show that the plan was going to fail tomorrow but i think it's not wouldn't be enough to show that the plan was simply underfunded dick fifty homes let me pause there what's the delta between you can take into account the long term well i think you have to look and under funded it seems like pleading i guess my point is pleading what you think is necessary won't be as big a hurdle sure implying i don't think so i think you would have to plead not only was the plan at risk but that the employer either could not or would not fulfill its legal obligation to make up any deficit in the plan so the th circuits case in leave versus verizon is instruc here that was post spokeo that was a g d r case in which the that that verizon pension plan was actually only sixty six percent funded but what the th circuit said was that the plaintiffs there hadn't adequately alleged injury because they hadn't alleged that verizon one of the and although there's no significant harm to the beneficiaries in the terms that you've discussed it they look and say well this guy's going to continue to lose a lot of money and can you can they bring a suit in that case if they can show he's going to continue to lose a lot of money and it will result and impairment of their only interest which is the stream of payments from the pension plan then yes they can bring a suit and they can get an injunction to have him removed here and they've never been they've never established that or claim to that here i'm sorry invested in in a vehicle that cost more money than was needed and it was self dealing so trust law has always said you can't self deal you can't make money off of the assets of the plan so whether or not they get something or don't trust laws been clear for ever that that belongs to the trust and the plan participants have trustees who are self dealing they're not going to sue for themselves we can sue for that self dealing secondly the plan loss seven hundred and fifty dollars odd one billion dollars or whatever the money was millions in impaired and investment now whether we lose money or not the plan of us money lost seven hundred and fifty three million dollars or whatever the figure was and in fact until you contributed three hundred and eleven million dollars of that seven hundred and fifty three the plan was underfunded you then came along and said well we'll give that much a part of that loss but not the whole and so if the trustees are not going to give the whole amount because it's not in their best interests but it's in the plans best interests what does it matter whether the participants get a piece of that or not the plan gets it and they're representing the plan so i guess what i'm having trouble with in this case is that they're right whether they have a property interest or they have a representation of interest they still have standing here on a st of all they don't have a property interest for the reasons i state in the they're not asking for distribution to themselves of a surplus they are asking for a payment to the plan right but hughes rejected that claim on the merits because of the structure of defined benefit plans but if i could move to the representational standing question that you asked a party can sue on behalf of another only if that party has their own injury that's perry versus hollingsworth that's why there are many such cases so  will personally recover and get money in a derivative action that the plaintiff owns a share of the corporation so any benefit to the corporation will flow down and they will get a minute part of it and if they don't this court dollars versus mental there's an article three problem with respect to the st part of your question which is the no further inquiry rule i think it's critical to understand there are two separate questions how is harm established and then who has the relevant injury to sue to remedy that harm the no further inquiry rule went only to that st question it's said that if the trust in gauged in a transaction that was inconsistent with the duty of loyalty or was otherwise prohibited there would be a presumption of harm to the trust and therefore that transaction could be rescinded but there is always they don't need the presumption here they've alleged harm to the trust there's always a separate question of whose interest is implicated by harm to the trust household on the what if congress had heard in that stretch i know you you would disagree that it did this what if it had said that every beneficiary has a property interest question but i spoke you explained there are limits on congress is the ability to provide causes of action and to identify injuries and make violation of them concrete this isn't creating a cause of action i grew to about all understand your point so you actually the right the legal right creating a new and we know this is new we've met it's new but we think it's important because whatever good policy reasons someone from which we've heard articulated here well i think this court would look to the substance of it i think if they just label it a property interest i don't think that would be good enough if they somehow tied the level of benefits to the value in the trust corpus this would be a whole different ball game and they clearly would have standing but like we talked earlier about their questions about the contingent beneficiaries you get to beneficiaries at common law they each had a fifty percent chance of getting the trust corpus yes they had standing at common law because they did have an equitable interest in the trust corpus they might get all of it but here we're not talking about fifty percent we're talking about  percent these petitioners will never get any of this is to come regardless of whether it's zero or fifty if i understand your argument you are acknowledging that if they have an equitable interest then they have standing is that correct if they had a property interest and apart if we look at a rest and we say that's exactly what congress did here was to give all of the beneficiaries and participants an equitable interest in the integrity of the trust and i don't wan were i don't know what does that mean that the plan has the equitable interest i mean the plan is the thing that there's an interest in isn't there no your honor this is the structure of in a recent plan you have a legal title is owned by the trustee trustee holds legal title for the benefit of the plan itself and this court explained in russell that the food you share your duties run to for planned asset management run to the plan but even if you don't agree with that i think the history here is still critical because at common law a remainder man couldn't sue and this is terry versus allen is that the connecticut supreme court case that we cite justice pryor the remainder man who had an interest in only the trust principle was a beneficiary but could not sue didn't have standing to sue for mismanagement of that trust corpus because a bond protected his only interest which was a certain payment here us bank is the bond we're talking about the the one of the best capitalized banks in the country there is no risk that this plan was not going to be able to make good on the stream of payments to these plaintiffs and that is the only legal interest it's getting that check every month now if they didn't think that i don't quite understand your answer do you think that article three is satisfied whenever congress puts the label property interest or equitable interest on something you know your own i didn't didn't mean to suggest that i don't think the label would matter i was trying to suggest that if it were substantively a property interest what does that mean for it to be substantively i think if their benefits were tied to the value of the trust corpus then they would have standing but if their benefits are fixed as these benefits are then and they can't show that any harm to the trust corpus actually jeopardize that stream of payments then they don't have standing just like the remainder military versus allan's a little different though i'm startin iraq's a little different because we're talking about a predictive judgment right and the plaintiffs are going to say  there's an increased risk of harm of course and regulatory cases we've done confronted that issue and how much of an increased risk of harm that they won't receive the payments as necessary and isn't that just going to be a pleading exercise that prevents presents a whole new collateral set of cases trying to figure out have you pled exactly enough increased risk of harm here and i guess the bottom line is is that worth the candle i guess summarizing if we don't have clarity on the wine is it worth the candle of trying to draw line rather than just going with the historical pro choice advocated by the with that you've been referring to these old cases which kind of said you're out and you're not saying you're out if you're a participant in a defined benefit plan you're in so long as you can sufficiently increased risk of harm that my benefits won't be paid and then the question becomes what do you have to allege to that well it's underfunded and therefore theirs and the company may go belly up and therefore that's significantly underfunded and the company was struggling or was distressed and didn't have adequate assets going to be a whole mess isn't it but that's required in order to show that you have an injury so i don't think it's a an there's a ton of information available here so you look at clout the facts of clapper those plaintiffs had literally no ability to to demonstrate that their calls were being surveilled here pension plans file annual reports with the department of labor that's the form five thousand five hundred there is ample public information about publicly traded companies there's a lot of information out there and that information here showed that even at the time this plan was modestly underfunded u s bank had eighty six billion dollars in an article three there's a lot of case law about what standard the injury has to satisfy and and if you're analyzing this under article three that's not an open issue concrete particularized and so on and so forth that it's come to develop through all sorts of cases where there's a challenge to the nature of the injury that's absolutely right so i think it really would be a fact down application of clapper of the imminent harm standard in clapper or the substantial risk standard and clapper which substantially increased risk of harm i won't receive my promised benefits it's not enough that wouldn't be enough and what more is needed i think and this again would be the th circuit decision in the year which i would count so you agree  to make sure you agree with the circuits formulation we do so underfunded isn't enough because of the way that a recipe is structured that the employer is always on the hook to make up any deficit in that plan so you've got it would have to allege both underfunding and an employer who was unwilling or on able  i agree with the chief justice that i've seen numerous cases and when ever it's a question of standing in it's a money case which this is apt to have some injury to money but we have two things one at least as to the duty of loyalty the history seems to show that those were fairly typical trust cases brought although there was no injury to the is this there are exceptions to this harm business quantitative i mean their members can sue and i agree that the members have to have once taken a you know a look around yellowstone or something but i mean it's pretty minimal and here congress has tried to create an organization that involves pensions and you know the members that they list in the in the statute as being able to sue so why isn't that good enough why isn't it good enough that that congress has created something like an association association all members do have the right to sue even though there's nothing more than their belonging to an association that suffered shouldn't that be an analogy why not no you so i'm interested in both sure st of all under raines v byrd the simple can for all of a cause of action is is not enough to confer standing and what you're alluding to in fiber to a two and a three is simply a bail cause of action that's not enough there has to be an invasion of a statutorily protected right there is to be a concrete injury at very least a mr graham or that suggests who congress thought the fiduciary obligations ran to another words that this goes back to this question of who really owns this thing at quibbling is it the plan or is it the beneficiaries and participants and in creating those causes of action congress essentially you know indicated that it thought that the obligations ran to the beneficiaries and the participants meaning that it's the beneficiaries and the participants who have the equitable ownership stake in the financial integrity of the fund your honor i  fiduciary duty goes to the beneficiaries your honor what this court said has as said in subsequent cases after russell was that there there are other kinds of fiduciary duties which may run directly to a beneficiary so for instance the obligations runs to an abstract plan rather than the beneficiaries and the participants who are supposed to benefit from it no your honor because arista was an innovation in that it created the plan as an actual legal entity with the and heavily regulated one that trusts at common law the trust itself wasn't a legal entity it was just a series of relationship between individuals so so risso was innovation but even if you don't agree with me on that this question would still remain even if you do share duties flow to the individuals can they sue if they're not harmed so it's at the contingent beneficiary analogy that we've been talking about if you go to contingent beneficiaries either of whom could receive fifty percent might have a fifty percent shot at getting the trust corpus here it's a zero percent shot none of these these petitioners is going to get that trust corpus and again that just is probably going back to your question the no further inquiry was involved only how you establish harm to the trust itself to the trust corpus in not one of their cases do they cite an example of a beneficiary whose concrete financial interest were not tied to the value of assets in the trust corpus one of their cases was that beneficiary but if you don't if you don't have to assess injury to the trust where there is no injury to the trust how could there be any injury to a beneficiary of the cases there is no injury to the trust and therefore a for sure there is no injury to the beneficiary i would i would change your wording slightly there is a presumed injury to the trust there  duke of loyalty yes there is a presumed injury to the beneficiary that to the trust vote there's a bruising trust and then any beneficiary with an interest in the trust could then sue so if it was the remainder men who had only an interest in the princip allen and that that interest was fully protected that plaintiffs couldn't sue right so there it's critical to keep those two separate questions in mind how is harm established is it either prove or conclusively clear that that who is someone whose actual concrete interest were affected can i go back to the particulars of your theory of what would be sufficient yes said if the plan if you allege that the plant is under funded and you allege that the employers are unwilling or unable to meet the obligations i think you said yes ok let's put aside on willing for a nd in alleging that employers unable to meet the obligations how would you allege that what do you think would be necessary i think you would have to look at their you know the publicly disclose financial information and show that they that this was a seriously underfunded plan and that this was a just distressed company and it was going to be unable to to put in adequate money are unable to comply with the minimum funding requirements a better resupply is an alleged how can that be disputed at the pleading stage or what do you envision what kind of process student vision for disputing an allegation to that effect a complaint well i don't i mean i think if it's if it's alleged with sufficient particularity then then they've probably properly alleged standing in there would be a factual question but then you are down the road then it's a question of subject manager or section under article three so it's not like for this question of whether it's stated a claim wouldn't you immediately file a motion to dismiss for lack of subject matter jurisdiction and that wouldn't be the determination and that would not be based solely on the pleadings exactly right your honor and that's actually what happened here we dismissed under twelve we moved to dismiss under twelve b six that was denied i think that was incorrect but it was denied and then we made a motion under twelve b one and the district court actually engaged in fact finding and found as a matter of fact that there were there was no risk that's actually what happened here the and then was overfunded and the over funding line that's the line that congress has drawn it says if you meet that level of funding in the plan there's enough there to pay all the future benefits so this plan at the relevant time was overfunded that was the basis for the dismissal here and i think that and mr pound away as you do about the fact that these plans can be underfunded in january and overfunded in february and underfunded in march again and what do you do about the fact that the health of even you know secure companies if you're in two thousand and eight all of a sudden it turns out they're not so secure after all or you're out i think that's why i think if a plan is overfunded i think that's sufficient to defeat standing i don't think it's actually necessary and i think for the reasons you state if something is toggling between overfunded and underfunded there isn't going to be standing in last critical nd step of the inquiry can be alleged or factually determined out of to at the twelve the one stage that the employer won't be able to meet its legal obligations to make the minimum funding contributions to make sure there's enough money in that plan to ensure the stream of benefits but just kind of speculation about maybe they'll be another market meltdown that's clearly not enough under under article three and especially and if that's their theory they picked the wrong defendant because there were you know eighty six billion dollars in liquid assets under your theory the g c doesn't matter correct i think  c does doesn't matter in our committee did not articulate that when you were to do it yeah well we articulate that in our brief in the courts of appeals cases that are on our side you articulate that as well that's the ultimate backstop and that's funded through insurance premiums paid by the employer so it's not what my friend on the other side said that the beneficiary somehow had their own insurance that would cover the loss this is part of the employer's obligation to pay these premiums so that there is an ultimate wax on that theory taken to its logical conclusion mean that a participant could never sue a defined benefit participant or beneficiary could members you know your honor because that p g c guarantees benefits only up to a certain level anyone who's benefits are under that limit they can never sue is that your theory defined benefit beneficiary whose benefits are risk and there's so therefore wouldn't have standing st of all that's not a reason to find that they're standing because there are other enforcers the department of labor co produce areas but that's actually a good thing not a bad thing it transactions of the only one possible in the plant participant so the government itself is telling us congress that just saying no depending on the participants ability just because they have it just doesn't have the resources to do the job answer yes the department of labor has the legal authority bring it to bring an action co produce sherry's how to have the legal authority to bring an action trustees can bring an action you have to look no further than this court's own cases harris trust is called harris trust because the plaintiff there was the trustee that was suing to resend a transaction and in this very case there was an early claim about a securities lending program that fell out because u s bank had taken action involved against an employee who had committed misconduct and recovered that money for the plan so there are plenty of other tools available other than is we have a concrete property interest if we lose that argument we lose but saying that we're on indra doesn't do the work just as alito you i think asked a question that's very important you said what can congress put a property label on anything and i think that goes to the heart of this case because they can't and they didn't here's what happens in interest of plan private parties make a bargain with real private interest and real money a worker gives up wages in exchange for a promise to be paid in the future with money put in a trust as security that's all fact no one can dispute that the question is do we have a an interest my clients in the trust and what is that in sweep aside the question begging and get to the main issue our point is it's always been the case since the th century that we have an interest at st my friend doesn't dispute this look at page twenty five of their brief he says in the th century chances began to recognize the benefit beneficiaries interest as a form of ownership protecting it much like the common law treated the legal interest in property this is why he spends much of his brief and he gets up here today and he says the participants beneficiaries they're not actually the beneficiaries the plan is the beneficiary if he's right we lose but he's obviously wrong because the beneficiaries are the beneficiaries to your questions earlier justice kagan you don't need to look any further than the congressional statements of purpose everything interest to says that to protect the interest of these individuals we're putting the money in the trust so that's the property interest there's nothing abstract about it that's how it's been for a while and for good reason ok i'm going to take my points out of order the nd one is the practical concerns what is the good reason because i think there's a reason why the united states government across a number of  this position of standing it's because justice breyer you say in prudence cases well maybe standing should be a gatekeeper because can people sue in every case like when there's been a law i get it that's a concern i don't think it should inform the standing inquiry think of the flip side the flip side is if their rule is correct you will have to have to figure out if there's an injury a battle of experts in every case about the level of risk and potentially throughout the case about the level of risk entirely unworkable again this shouldn't