good morning may it please the court i'm kate the worst when i represent a poet richard tatum in this case as well as a certified class of participants and beneficiaries in the r j reynolds for a one k retirement savings plan there are several issues in this appeal and like to begin with the most important the standard for last causation under of a section four zero nine under that section a fiduciary must compensate a plan for losses resulting from each such breach the district court in this case found a breach it found that the fiduciaries conduct fell far below what a researcher acquires but then it failed them failed to hold them to the correct standard on causation the breach occurred following the spinoff of r j r reynolds tobacco from the disco a spinoff that was intended to allow the nabisco stocks to rise in value free from the tobacco taint from ongoing litigation against r when a group of our jr managers decided to force plan participants to liquidate the nabisco stock they did so after no investigation or analysis and they set an arbitrary six month timeline for the divestment participants had made decisions about how to allocate their stock among the options in the plan these included several diversified options the r j our company's stock as well as the two legacy nabisco stock after january thirty first two thousand however the participants who wanted to leave their stocks in the plan were no longer allowed to do so instead r j or force them to sell the stocks on an arbitrary time line at a low point in their value resulting in losses to the plan or expert testified that those losses to the participants retirement savings accounts amounted to fifty million dollars allocated across the class is it your contention that the committee in this case was required to maintain the stock in perpetuity i know it's our contention in this case that the committee was required to do due diligence to determine whether or not it was meant to maintain the stock it should maintain the stock and if it determined that it was appropriate to liquidate it to do so at a time that would be appropriate was it isn't the presumption here that it was no longer because it was no longer an employee stock that there was a presumption that i believe weighted in favor of the  question really was the timing that presumption was adopted by the r g r managers but there's no presumption in the law that says that merely because it's stock that was former employer stock that it needed to stock there is no specific disfavoring in a rest of this investment but even if that were so as your honor said it would be critical for the fiduciary is to make a determination about when it would be appropriate to divest the stock and how  light of that significant risk to the participants of losses in forcing the sale on an arbitrary time  general matter of the do sherry would think that having a single stock fund would be a ticking time bomb  recess does not require that each individual find to be diversified that nothing in the statute requires that the regulations specifically speak of a diversified portfolio and we have cited to the court young vs general a lag or any kind of investment counselor or any kind of portfolio manager would be that the accountant had to maintain adequate diversity  as i understand it an actual manages audited maybe by the can control or or other regulators and the first thing they look for is an exposed even though the enron this enron fiasco was was company stock but if it's so often the case that know darned if you do and you're darned if you don't know several several points in response to that one is that this is a stock that was already in the plan so that any risk that was in the stock was already existed for the participants who had not in the regulations not in the statute not as held by the second circuit not in deede as conceded by my colleagues from our jr below that there was no regulations that required the sale of the  in addition a number of companies continue to hold former employer's stock as a frozen option in their plan which is an important point here that this stock was a frozen option there were no new investments allowed this relates to participants who were choosing to hold already prior to the spinoff and our experts had to testify that that was a risk that had not increased following the spinoff r j our company's stock furthermore remained in the plan there was no question or no discussion about whether or not that stock would have been eliminated the district court test for examining the kinds of questions that your honor is asking here the district court found a breach the district court then asked a a question which is unsupported and arista which is whether or not it was possible that some fiduciary somewhere could have made the same decision that the  it seemed to me that those folks were pretty substantial and then the district court adopted the standard with respect to who we were the burden that you are yes it did it or it could it correctly fiduciaries for the burden but then it failed to hold them to that burden when it applied a standard on causation which was a standard essentially of plausibility or speculation rather than the hypothetical prudent for the sherry standard that this court adopted and plasterers and that standard is that a fiduciary has breached its duty as these fiduciary is had according to the findings of fact the district court can only be excused from liability if it's  once there had already been a finding of a breach of the duty of prudence so objective prudence has to be interpreted in light of the fact that that question now before the before the court is causation and that question is answered as plasters adopted according to a hypothetical prudent for the sherry test there is and then the hypothetical prudent fishery test as used in every circuit uses the words would have there is no circuit level authority for the proposition that  true as a first point that it would be a fairly aggressive and radical departure from the case law to find that a fiduciary that had reached its duty could be excused from liability under section four and nine based on the fact that it was possible sherry who had considered everything that should have been considered would have found the same way and the second point is that objective prudence while the court the district court used the words prudence and referred to plasters the court did not apply the correct standard the court found that on the one hand it was possible that could have kept the stock in the plan on the other hand it found that it was possible that a fiduciary based on some broad general concerns without taking into account all the facts and circumstances that are relevant could possibly have decided to eliminate from you know what it is that they are i think they're likely to be whipsawed here because if they held on to the stock and it had plummeted and an a lawsuit could have been brought you held on to this too long notwithstanding the caution flags that should have come off use you should exclusively nabisco fine you should have known that nabisco funds were of especially high risk because of the back attain that single stock funds were risky as a general matter because a lot of employees invest in a single file and they're just going to and you should have gotten assuming the value of the had plummeted instead of risen a argument would be made the there were these red flags that with these caution signals you didn't pay any attention to him he just held on to this and the went went south and so my concern is particularly with respect to this factor of diversification because you know i'm not sure it's a it's m just concerned about using in this area particular question of diversification the incentive should sherry's to diversify not to hold onto funds where have some single stocks and if we ruined your in your favor would we be setting in basic investment principle which is to diversify and protect the employees of this company against and the extraordinary risk that comes with holding a single stock fine i would i would i would think we want to encourage rather than discourage land managers diversify to diversify and you can say well it's all a question of timing and this and that and and i'm all the rest of that but still how do we get our around the fact if we rule for you that we are really  knocking a hole in this basic investment principle of diversification and to me the whole case revolves around diversification and the need to diversify much more than a global question where their investment decisions may that a non diversify i can i can see a case for example where an investment decision was made that that led to maybe less and less diversity and may have been the object of the prudent but there may still be problems with it but when something leads into that in the direction of greater diversity different kettle of fish incentive that needs to be directed to plan for jewish areas is that they investigate thoroughly and carefully whenever they make a plan investment decision d beller our expert who the court adopted as part of its standard of prevents testify that the most important risk to be considered here was the risk to the participants of forcing a sale of a stock that was already in the plan on an arbitrary time line in the face of certain losses when they're sold at a low point in its value this is a case where the stock is already in the plan as employer stock and as a result of a corporate restructuring the issue is whether and how to move investment options that needs to be done through due diligence so here's a situation where the district court found that the fiduciaries fell far below the standard of care that's required in making any plan investment decision with  opportunities to act prudently and escape liability no matter what happens to the stock and if you carefully consider it if you are meeting that you do this that you are not liable that's why there are so few of these cases but extraordinary case where the record is virtually devoid of the kind of thought that we think you do sherry's in just think if you share your own life who would go out and sell a principle asset with a short meeting and not really very well attenuated goals and not much not any discussion with an expert and a misunderstanding of the law all of which the district court found in all of which seems to me to be substantiated in the record but then the problem remains we come with all this case law that talks about diversification but it seemed to me i don't know if this is true or not that that went to whether there was a breach of the duty to begin with that discussion of diversification they are atthis final yes there's been a breach of the duty and it's their burden to show that it's more likely than not that the reasonable prudent in person would do the same thing now do the diversification cases come in and that they talk about diversification in that last step i'm did you understand my question yes i do understand your question and the diversification cases have come up predominantly in the context of either employer stock or port portfolios of plan and they are the one case that comes the closest to talking about that in that context as plasters where the court re mandated to say this is a decision that needs to be evaluated in all the facts and circumstances and other words there's no per se rule in favor of diversifying the plan assets and in this case the plan assets were diversified i think i find this a very difficult case but if we should say diversification is a very heavy weight and accounting heavy t here at the end it doesn't it seems to me that even if you do sherry breaches its duty right and left all conflicts taken away from this case even a worst case of breach of duty that if there is a claim by question yes yes it would defeat everything that is in arrests in particular in this case in the sense that i would say it's meaningless to have gone through the fact that the fiduciaries did not take any of the steps they were required to take in making this very important plan investment decision that would affect and lock in losses for plan participants but the diversification is important still allows the district court in this circumstances of the plan of the participants of the warnings that were made to the participants as this court made doing what i was then of fact i mean you know maybe maybe he was he was saying look it was a reach that there i wish they'd gone about it and i'm in a different way but at the end of the road the decision was objective lease and rejected really prudent what i want what i wanted because to me you know it's i don't feel the need to make global statements here get it if it if it turns on this particular desire to diversify our minds which concern about putting roadblocks in the way of diversification i just think that's a real problem but i'm going to ask you about the justice scalia's concurrence saga but he said you know you can't and you can't be held liable for losses resulting from an objective me prudent investment decision even if you were have added by astrology  and that is the the bank concurrence has been broadly adopted or what what what is your reaction to that and would we be creating riptides of circuit law if we departed from the bank concurrence and i'm held in essence that someone can be held liable monetarily for loss losses resulting from objective li prudent action the finke concurrence says that the fiduciary decision should be evaluated according to everything the fiduciary should have known and is consistent with the hypothetical prudent for the sherry test that this court adopted in plasterers where this court would be departing from that concurrence would be to hold that it was all that was required for causation was for plaintiffs to show some sort of connection between the breach in the loss which certainly before plasters would have been what we could and would have argued so think says and think for the moment it talks about an objective leap investment talks about a blue chip stock that no one could argue with so here the question is a stock that was already in the plan as an under her suffice option would i pathetical sherry take me in find it's all inside out of their cars as the find itself was not diverse that's the that's the point don't the individual fines need to be a diversified as long as a find is an option no they don't know i mean an example would be real estate funds or small cap funds or large cap funds or as often happens in restructuring situations like this one former employer stock that then becomes held as a frozen option in the plan on the employee can go from fun to fund the participants have made choices about how to allocate their portfolios based on the range of options that are in the plan in terms of by the the objective prudence of the decision enhanced reverse the district court did not actually make that conclusive finding instead it said that it was sufficient to find that somewhere could have made the same stis isn't and that while there were factors that pointing to whole point of holding the stock in the plan that there were factors that pointed against it and therefore it would find no causation that's not  in adopting the dr billers test of the duty of prudence said that the most important consideration was the rule minimizing the risk of large losses to the participants and forcing the sale on an arbitrary time line the district courts use of the wrong test for causation meant that it didn't need to consider dr billers opinion on causation and it and it and it would on remand but i think if i read your papers acknowledging what could come out the same way but w here going to be whipsawed between reversed stop draw stock drop liability and stock drop liability this is not a case involving a prudent to do sherry who kicked all of his eyes and crossed all of his t's and simply ended up with a a poor decision this is a case where the fiduciary was held by the district court following a five week bench trial at which the district judge had that opportunity to hear from experts for both sides was found to have breached its reduce your duties and thus to have breached and implements the law of trust which holds to defendant's argument that that would have to test is contrary to and unworkable in practice in fact it's the opposite that would have is the only test that is consistent with the risk is the basic test in this circuit and in the united states for causation and we're talking here not about liability which is an issue that the district court decided it the question is what the effects had dropped in price between the split and the liquidation they were looking at a falling stock and then they were looking also the tobacco  have been well judge nelson said i think i agree with you generally about our position we don't take a final conclusion as to what the outcome would be on remand we think it's extremely important however that this court articulate here today the proper standard for causation which is would have and not could have as to the breach and the icon take over the breach that the district court found was a deep a breach of the duty to investigate not a breach to fail of failing to take into account the possibility or the possibility of an icon take over the proper test the district court should have asked following the eight circuits decision  ask that decision is that it asked for speculation as to what could have happened although as judgment has pointed out there is a potential range of options that may be available to print fiduciary which may but it did for man but determination yes exactly but it is if you depart from the standard of of prudence which covers a lot of a lot of we don't think it has been addressed in the respect on text by other courts we think that they district court below made an error of first impression and this court has the opportunity to correct it we don't think that by endorsing the would have standard that this court would be departing from any settled law in fact it would be following this court's decision in plasterers which is the would have language the eighth circuit decision in raw the fifth circuits decisions in the but how do we deal with that well judge he has that was actually i think that was judge wilkinson's question is well i think that objective prudence here is shorthand for causation the question is once you've established liability was that liability traceable to the losses and in order to show objective prudence that's where this standard this language comes in from nature as i say of single stock bidens the biscoe stock decline in price after the split between the split i and the liquidation it's uncertain future given the back attain the fact that you have perspective takeover bid was not known to the trustees and and so and i understand your view on the standard but what you were it's new to me your brief in important respects  that this was an objective any prudent action your honor again we think that objective prudence's shorthand for causation we think the breach here was the breach of the duty to investigate the district court wound in france with that of it all what difference well that's the question that the district court should have asked the district court should have asked defendants following the plaintiff having shown the breach and having made a prima fascia case on causation and losses whether the fiduciary would have made the same decision anyways and as your question judge wilkinson about how these cases are going to be decided frankly there are decided with the assistance of experts district courts are we announce a decision that's all right these were in all probability objective leave prudent actions but nonetheless the objective be prudent actions may have required a more expensive  investigation it seems to me that the farther you go by high objective objective be prudent decision and particularly one in the area in the direction of diversification you're you're asking you're i think you're opening up i'm a bit of a dangerous door respectfully judge wilkinson i disagree i don't think that the decision here affects the conduct of fiduciaries at all the question of liability is separate from the question of causation the question of causation is what then judge scalia got at is at his concurrence in despite the breach the hypothetical couldn't produce yury would more likely than not have reached the same result then the fiduciary is is shielded from liability where is that language simple question very simple question are causation would a hypothetical person fiduciary more likely than not have reached the same outcome it really would likely require expert testimony but expert testimony was required here as well there were experts f applying the would have standard virgins back and forth between what evan could have and i take your point but if the court had applied that standard you wouldn't have any issue if the court applied the would have standard to the evidence following its fight its consideration of expert testimony would fact witness testimony following five weeks of trial and it reached the same outcome the secretary of labor would be comfortable with three things that you can't read the opinion that way because ultimately the district court is saying there's basically saying is there's a range of activity that could be a reasonable to do here could do this and then the other thing and there for that reason yes your honor and it of that does seem not like would have exactly your honor it's porting a concept that's appropriate to liability to the causation stage you do these are just cases a lot i do your honor all right maybe you can tell me what i was worried about just wilkinson is sort of talked about the bad consequences the one holding and i was worried about the consequences of another holding would seem to me that risky is all about the really protecting the employer the plan fiduciary the plan fiduciary does this if they have a plan and they adopt the planet follow the plan they didn't do here if they did all that then they're not going to be liable no matter what happens to stop because we all know from our own or at least i know from my own bitter experience of the law you know and you know i'm not i can't tell i'm sorry to hear that your stocks are down your honor  yes there would be a severe consequence the secretary's concern from endorsing this could have test in that it would lower the standard for produce you're a liability and expose innocent participants in beneficiaries to imprudent conduct of the do sherry's so you're right that being given that was imprudent conduct exactly given that it was in print conduct a risk reflects ace a balance that was struck after months of congressional debate drawing on the law of trust which developed over hundreds of years in the english courts in the american courts and there's a very complex jurisprudence under it in the decision of the district court below upsets that balance and undermines  here but we agree with ms worth it mean that we have under courts i mean yes your honor but diversification under the modern portfolio theory which the secretary in the courts have adopted is to be looked at on a portfolio wide issue as i think your honor judgments wrote in de felice there are special risks that come with single stock plans but that doesn't that's not a dispositive matter doesn't mean that they were never her bridge here in not adopt the would have standard and i will take the position the no other circuit has done so either plasterers is based on fink which by the way is a risk case and the head note that west writes but it begins employer sponsor plan beneficiaries brought suit and so forth so think wasn't obvious acase and that apologized for a laboring think should be belaboring plasterers but i think it's important to look at plasterers and what it actually says it's got one sentence in the middle of six paragraphs of analysis on causation quotes the roth case that has the would have standard that is not the standard this court has adopted as the be all and end all for causation but that has this court stark court starts on page two seventeen the federal reporter by saying the the finding that the former trustees breached their fiduciary duties to investigate and diversified did not establish as a matter of law at the actual investments were imprudent and liability can only attach if in fact that was the case this court said expressly liability can only attach to a decision made after bad process if the decision investment decision that was made was the former trustees failed to investigate all turn of investment options does not mean that their actual investments were necessarily imprudent ones the next sentence quotes roth even if a trustee failed to conduct an investigation before making a decision he is insulated from liability if a hypothetical person for usury would have made the same decision anyway but the next day there but the next sentence clarifies what this court meant the next the next sentence is a quote from fink it is the imprudent investment rather than the failure to investigate and have not challenge that factual finding on appeal and that resolves this appeal argue plasterers establishes a standard of objective prudence for causation here the just report found object of prudence as a factual matter after a five week any reasonable for sure you know is a district court recognize that there's a range of permissible options a fiduciary is may for example want to put a growth fund in the plan there are hundreds of growth funds virtually all of them probably are  your question i don't believe that's the standard but if that is the standard the answer is yes and the reason is you are mr court in fine this record to go that far but the reason is your opinion a different way so we would have to make the finding ike well i think you have to make legal findings but i don't i think well but then the question of dressing the question of causation the question is whether removing the funds was nonetheless prudent as scalia says if you use astrology but happen to choose the prudent option there's no monetary damages that's an important point i think i think participants can get monetary really if there's a procedural breach astrology is used or darts are used that happens to choose a good investment approved investment as a just report found here you cannot get monetary relief but that's not all that doesn't mean that the that the plaintiffs are left romulus they can get equitable relief for example if they haven't suffered any losses as a result of the procedural reach they can ask the district court for in order to remove the fiduciary is from the plan so they can't use astrology  get plaintiffs here at trial didn't ask for any equitable relief all they asked was for money and i think the reason a second reason suppose there is no investigation of tall i mean suppose they just bo this this is absolutely obvious sell it on stop would in would in your view that's they would still be insulated from monetary liability that's and if the best one to do so to me that's not the same case as a trustee considering a menu of options why should we treat that case well i think you're right it's not the same case but i think if the would have standard is virtually impossible to apply in a situation when there are multiple options because you're never going to have a more likely than not i mean here are a granted that let's say that's true but what about it well in this case we think that again the question is experts and other testimony and the plaintiff have a challenge that if i also find that removing the funds at the time that occurred was also proof he did he found moving them as of january thirty first two thousand was object of the grid and he didn't exclude the possibility that other courses of action  make finding said what they said it might well be leaving him in his burden perhaps february twenty eighth would have been prudent but he found that the what they did on that day was object to be prudent and therefore under plasterers sounds like they could have done it on any day and it would have been  well or is because it doesn't seem to be any way to measure that if we don't get to them with the substance of the expert testimony at the time it may well be if because of the nature of this these sox fans you know that these were funds that were in the  employer single stock funds or in the plan as a result of a spin off in the n g a fund the discovery pollings fund which is one of the two that fall in sixty percent in value from mid june of ninety nine when the spinoff happened till the end of january of two thousand and with the with the the sort of billing which is asked you i don't see any situation can you change the facts slightly in this case where the district court's analysis would lead it to a contrary conclusion it seems to me like any decision you testimony we might have different fact the problem here is i don't know you know would in reading the briefs and the advocates braves i don't know of anybody who really thinks this case is going to come out any differently on  the question is rather than say you know just broadly embracing the think concurrence or making some global pronouncement about of an objective lee prudent decision is always valid no matter what procedural infirmities preceded it and the rails it is the particulars of this case that seem to me t particularly bad precedent because even if you even if you don't agree if a fact with a fact that an objective li prudent decision in all cases invariably insulate plant managers from monitor and liability to go behind this particular decision where you have a highly risky fall and you have a highly concentrated  fine you have of a decline in price and everything if you go behind the else you're going to go behind an awful lot of perfectly not going to be a problem all they have to do is you know check their list and put you know go through the the check last them through the procedural votes and procedural vote but it always is a problem and it it's going to be litigated x x then civil aid if a if a decision that is in accord with probably the basic investment criteria and the basic investment lodestar which is to protect employees under erosive of from the prospect o dramatic and catastrophic loss and they wanted to protect them is relatively sooner rather than later this is the exact opposite of enron and the disaster that befell the employees in houston you that well it doesn't matter because they're just a menu of options and nabisco plan is on the nabisco fine there's only one would you address the fact that even though this is a single stock fine there are many many diversification if if as deeply says a single stock fund is per se imprudent then hypopnoea even if you adopt a plan of standard no hypothetical pretty sure he would never do that and this cohort never will have liability operate which is you buy a company you look at their you're the manager and you look at their four one k plan and they've got a fund that invests in lottery stop lottery tickets you can do use new procedures and take that out i would submit that is per se imprudent you can look at that take it out it's just so happens that the next week one of those tickets would have hit the you know the powerball that's an imprudent investment and i think now this is not suggesting we are going that far and i think a stretch wilkinson has pointed out the said let me give you our hypothetical i wasn't sure i understood how it responded we should say that every time you get rid of a single stock bond there is no violation of arista which is i take it your there is no doubt or virtually no doubt i guess there's never no doubt that everything is in caprice proceed as planned and that will result in a twenty percent appreciation of the stock at closing for a week maybe in that circumstance a fiduciary could say and say you know  though doesn't like single stock funds so i kind of arista doesn't like people that do not follow its procedures which if all kinds of coverage to the that's right here i completely agree with you  a terrible decision made over the course of decades the trustees there invested their retirement savings of the union members in c d s and t bills which had very low interest rates it seems pretty obvious i think to me reading that case that this court and the district were thought that a diversified portfolio of stocks and bonds would be a better investment but the court didn't allow to follow the district court's holding that there was a live as liability for monetary damages for losses what it said was unique that this report need to look to see whether the investments in the t bills and the c d s was nonetheless objectively prudent even though it was pretty clear that a diversified portfolio like some investment managers are proposing would not only also be objectively prudent it probably would have been better so i think this court in plaster is of knowledge the fact that there could be several good prudent investment options and again this is not leave this is not leave a remedy hole in a rest of the remedy where there is no loss it is an action to rip to remove the fiduciary or take on the ever equitable relief with respect to the fiduciaries to make sure that they don't follow the including procedures again plaintiffs elected for whatever reason not seek that at trial including your burden to establish that breech to make any difference ok is there any case that does those two things on causation after a trial i don't think i think the answer is no so i'm not sure that the fact that there is no finding of monetary damages is very decisive since there is no case in which there has been a finding of liability and a finding that you bear the breach of just terminating that you are you make it by first of all right so what you just said which is burden of proof only matters when the evidence is an echo plays right if a if the person with if one party has a slightly better evidence than the other party it doesn't matter who bears the burden of proof so i guess i would put somewhat less weight on who bears the burden of proof than you do in your question with respect to the right man my question the there isn't the burden of proof somehow they said that the the stockholders had the anybody indicated at any point in this argument how this is possibly come out differently are green no your honor we you know we think it will come out exactly the same we think that we preserve the argument that even if you apply  honor we think the plasterers is a pretty clear standard in this court is bound by inch and apply it but if it's a court thinks it's more complicated i think i think you could apply there would have standard and say based on the argument that we made and preserve alone we've made to this court because opinion that maybe a reference to would have but is it is it is it possible to say that look this record has already told us what it's going to do which is that in your home the facts of this case no no no liability attached it to i mean don't we don't we look the root the rule that district courts now as well as the factual findings of the district court i think that it's it's well within this court's discretion and ability to look at those factual findings which have not been contested or shown to be clearly erroneous and rule that that report said not only were they individual stocks which the felice says are very high risk the seventh circuit is however iris but there's a backhoe taint there's a very real possibility the market was imposing on n g a that that it could go bankrupt because it's a back a liability that was depressing and so this report found the stock was very high risk and second it found that there was no reason to expect above market returns another factor here wasn't was it current takeover that sent the price sky high that's right all right did the trustees in this instance have any inkling case where there was a procedural default well maybe so maybe not but if you had a different case of whether further investigation would have uncovered evidence of the current takeover would that have been a this in a positive direction would it be a liability in those circumstances that would be a different case with possibly a different outcome like judgement was looking for hypotheticals but in fact there was an adult report i think it was from salomon smith barney issued a week before icahn made his tender offer and didn't even mention icon so it's uncontroverted that that could not have been foreseen or not they could've spent a million dollars hiring experts and economists and financial advisors they never would have discovered the icon was planning this that's the or found by point is that i think this is a more back specific case then maybe either of the parties sic suggested as if i mean we're talking about having some global adoption of this standard or this standard but i think it's that a lot of it bottoms out on the fact of the presence of a single stock fund a high risk quality high risk character of the nabisco fine and particular the fact that econ take over could not have been discovered it doesn't you know every case does need to be the broadest case in the world i grew up here but i think there's a a you have to ask of the trustees in this instance we are pressed that missing a broad rule that no matter what you do no matter how arbitrary your actions are there can never be a liability if there's an objective decision that you know the road it doesn't need to it that monetary live bill it is possible that is a broad ruling that is a broad ruling because if it could happen under these facts it can happen anywhere and but if we hold the trustees monetarily protected well protected in this instance we're not necessarily establishing a broad ruling that applies with a different set of facts i think that's right specifically addresses this question and it says if there's no causation we don't need to assess monetary liability because in most instances plasters says page two eighteen in most instances a procedural breach will actually cause monetary loss and therefore mon rule in most instances you want that i just i disagree with that in this case because there's single stock funds that are highly risky and are per se imprudent yes it taking them out is almost always going to be pretty it's always always always over almost always amend their complaint he would not argue there was any higher burden on the defendants as a result of the inability of the november amendment because we made exactly the point you're making which is they are going to be said judge chile they're going to argue we violated the plan and if you don't let of words could use do you think it's possible to read the district court's opinion taken as a whole that he made a finding o prudence in accordance with twenty nine u s levon or a one a one big yes i think it is and why do you why do you say that the could would discussion i think is is sort of a side show but look we take we don't take we try not to leap on one infelicitous phrase with respect to district courts but i'm asking you whether the court's opinion taken as a whole can be read to make a finding on the ultimate question of compliance with love of or are you one bit i think the answer is yes because he just did this recorded a three step analysis his first step is factual analysis of factual findings determined yes it was objective we prove it so he made the finding and the very last section of his opinion that removing the two funds was objective the prudent under eleven o four so i think that that a cop understand your question  thank you your honors yes there were a number of points made so i have a number of points i'd like to address beginning with the question of the district court and how it comes out different on the man and this case has been going on for twelve years we would certainly like to see this case resolved we believe there's factual evidence in the record that if this court wanted to it could find that a prudent fishery would not have made that decision but certainly it would come out different on remand i would point the court to page thirty eight of the district court's opinion in the joint appendix as compared to page seventy six page that that's where the court is discussing timing the court did not make a finding that the timing was objective leigh purdah moreover and more globally important the court by virtue of savings but why should they have held onto the funds is it because there were a menu of options within the total for folks i think of extraordinarily relevant consideration but about the seventh circuit decision that's a route even if it's one of a number of options it's still a risky thing to have a single stock and that risk was already in the plan it's not in it's not i think my colleague for our g r concedes that at points there's important to have a risk option an option that does have objectively imprudent yes i do think that and we'll hear you say you had you just this week by basically it comes down to the fact that you use disagree with the district court's finding on objective prudence i think that we do disagree with that finding it comes down not a factual finding your honor that's a mix question of law and fact and as a next question of law the question is what was the standard that the district court used in determining whether or not it was objective we prudent and the district court used the vox gander let me tell you really because i the risk of large losses to the participants by forcing the sale at a low point in their value now the stock was at a low point and was it was not in imminent danger of bankruptcy there was no allegations that that was the case while there was some litigation risk the argument was in fact in the district court found that the stock price incorporated the value that the risk that had been anticipated and so if it was what it positive over time the sell ratings which had existed immediately after the spin offs were eliminated the district court found that those were considerations that could have lent support to keeping them funded you ran into may incorporate a great deal of market hindsight i don't even look we can go looking in a crystal ball into the future of the trustees didn't have no your honor and i hindsight is not appropriate and there is a case and what the question is is what should is have known from doing a thorough investigation which the district court found correctly they absolutely did not do they did not look at the portfolios of the participants to see what their other holdings were they did not look at the it state intent of the plan to provide for participants long term savings they did not look at the characteristics of energy age or any to determine whether or not it made sense to sell and at what time it might make a used you know respectfully i disagree at the think concurrence which has been adopted by some cases in the context of the hypothetical event that cheri test says that the question is everything that a trustee should have known and taken into account and that requires looking at all the facts and circumstances it involves requiring a decision that a hypothetical printer fishery would have made the same decision not just would have but for this plan under these circumstances if at this time as well and i believe that it it will come out differently but suppose that plaintiffs do bear the burden of causation of a proof on the question of causation that causation  just like in an anti discrimination case causation is an element of the plaintiff's cause of action how can the district court i mean how can the district courts finding on the matter of causation be clearly an arrow when it finds that this was an objective lay prudent decision given the various facts and circumstances if  a couple of points in response to that one is that it's our burden to show a prima facia case on causation under the test as adopted by the fifth and the eighth circuit if it comes out differently and it's our burden to show that it's nonetheless the same question which is would a hypothetical prudent for the sherry nonetheless have made the same decision anyway and we would meet that burden under the detailed facts and circumstances if the question of causation is always a mixed question of law in fact and in this case it's a question of law because it's the application of the wrong standard so you would say that the ultimate finding that there was objective leave that the trustee acted objective le reasonable was based on an incorrect standard yes exactly like if you just missed for summary judgment and you stated the stand correct standard and then and in fact you found a bunch of facts yet it couldn't it couldn't hold or if you said the standard was which side prevails which is most likely you know on a reasonable doubt in and the standard wasn't exactly if you use or you make that same ok so that's where you think