in case not move is determined so i would say that the fund is currently over funded but the last contribution that actually caused the plan to be over funded occurred in two thousand and fifteen so it's not like it's been over funded for five years and it did not become over funded until the district court found that participants had standing had met their burden to show injury in fact and then the defendants voluntarily acted to over fund the plan and then it became over funded throughout the course of the litigation doesn't that the court because the funding and now the issue the question of whether is the requirement that a plan be under funded under this quarter's prudence and harley is an injury in fact question and the supreme court has repeatedly held on numerous times i mean be the the entire decision of laidlaw from the supreme court is for the lower courts to conflate the doctrines of standing article three standing meaning the three part requirement injury in fact causation and dress ability with moodiness questions or the doctrine of which is which is a wholly different standard is reversible error and has reversed lower courts numerous times on that basis and so why in this case what makes this not situation here where many of the free sherry's they initially gambled with these retirement assets are still in place and so there's nothing preventing them there's been there's been no court order or anything  imprudence and disloyalty doesn't exist does not mean that it cannot take another form and moreover the will or an injunction that says they must be prudent and an injunction i mean the types of injunctions we're talking about are very specific removal of any fiduciaries that were in place at the time that this overly risky strategy was taken the appointment of an independent judiciary and i want to we also asked for an injunction on one hundred percent you know to not to diversify the plans assets but i want to be clear that the the standard for stringent standard it is not one that's based on the pleadings it's want to sensually where there is something legally binding that prevents the part of the the party who's been accused of allegedly improper absolutely clear that the alleged wrongful behavior will not occur and so the the fact that are in our pleadings we reference the fact that the one hundred percent equity strategy is not place that is not anything that this is something that's basically been addressed for a number of years and apparently decisions made that make it unlikely much less likely for this to actually happen  to answer your question i will point out that there are other the one hundred percent equity strategy was you know part of our claims but the other major aspect or claims was the investment in affiliated funds and  think the district court addressed this in a footnote the public filings make clear that the plan still holds an affiliated fund investment the plan because it's regulated by the permit labor has to file very specific schedules and the public filings that are available to anyone in this court and it's in the district court record we can provide cites make clear that one of the affiliated fund investments is still in the plan and it's got a little asterisk by it that says it's a party interest transaction which is a violation of a receipt for six i know that i mean as you've read from the defendant's briefing they believe they're entitled to an affirmative defense an exemption but there are four elements of that affirmative  we were in discovery precisely on that question among others and there's been no discovery on that issue and so they have not met their formative and such keep their toe in the water so the idea that stop at the last harley the court case out of our court said that the so long as the the plan is over funded the individual participants don't have even if there's harm to the plan they don't have any interest in that because there is a defined benefit plan so they're just getting their defined benefit how does that how does harley play into what you're asking for in your first bucket of principle in forming the decision it was decided on what does the statute say eleven subsection eleven three two eight two which provides a participant the ability to get relief for the plan  y and the the fact so essentially what harley held was you need to read into appropriate relief that the  take the actual express language in arista eleven thirty two a two which refers to eleven eleven zero nine referring to appropriate relief for to speak in restore losses to the plan and concluded that when the plan is over funded there's no appropriate relief available yet at the first standing purposes to show injury in fact at the commencement of the l so but since it's not an article three matter why why wouldn't that rule apply throughout the litigation unlike article three which require you know which raises voluntary cessation issues and so forth further and say and actually the only relief you can have under harley improve sensually standing harley is essentially to get the plan to a funded one hundred percent funded state then requires literally crossing out all the other language and that it's an eleven o nine that is an indirect conflict with the original harley holding harley hope the original harley holding was considering appropriate relief but it did actually limit the relief too in a way that was contradictory to the precise language of the statute because i don't think this court would have gone that far because it obviously violates statutory construction it please the court steve lucky on behalf of the u s bank defendants and district court was correct we believe in holding that there was no article three jurisdiction for this case to continue because the plaintiffs have not lost one penny of their twenty two hundred forty two dollars a month benefit they've incurred no restrictions on their on their benefits their participants in actuarily overfunded plan that has been over funded since nearly the beginning of this lawsuit two thousand and fourteen and there's no evidence in this rule twelve b one record of any risk to their benefits and i think there's no really meaningful dispute damages would also pertain to injunctive relief and that and that makes sense because the participants in the plan that fall in and and smith in this case what their entitle to is or set benefit under the plan and any recovery whether it be through injunctive relief whether it be through discords meant whether it be through damages that would go to the plan or that would affect the plan if the plan is if that's a problem could they get some relief that helps avoid that occurring again they couldn't under under mccullough but and i also want to correct the factual statement on that that there is no issue in this case as judge erickson found about whether any of the conduct that was alleged in the complaint which was the hundred percent equity strategy and the affiliated use of use of affiliated mutual funds the fun that that missy  refers to that is still in the plan is a money market fund the rest of the company was sold off f a off is not part of u s bank and hasn't been since two thousand and ten and so that's another reason why this  case by this court said the same thing you can't in other words they can't get if we're not in the play if we don't have affiliated funds we don't have a mutual fund affiliate and the bank hasn't been invested in one hundred percent equities there would be no claim for injunctive relief in the first instance because it's too speculative the fact that it you know could occur in the future i think the plaintiff is trying to put a higher burden on us by saying that this is a  voluntary sation case under the mootness doctrine that there is a very great burden on us that we practically have the you know swear on a piece of paper that this will never happen again and i would suggest that that is not the correct standard under the it's often referred to as standing in a time frame in other words the personal injury that you would have to assert at the beginning would have to continue throughout and in exception to that is the voluntary cessation doctrine but that for that to happen you need a voluntary cessation of the challenge to conduct as a result of the litigation here the challenge conduct the hundred percent equity strategy and the affiliated funds was not seized as a result of litigation it wasn't in place in for three years before the big ation and what mooted the case was not the cessation of the challenge conduct but the over funding the actuarial over funding which incidentally the plaintiffs say had happened as a result of this judge erickson found as a factual matter that that was not true and there was no basis for that and so still their burden shifting that they try to impose on us does not apply but even if it did again judge erickson found as a factual matter that we hadn't met that burden because the claim of improper conduct is as we said all abandoned by two thousand and ten long before the case including their reference to the money market funds that was not part of the case and by the way there's no problem there is there's no disgrace in having an affiliated fund there's department of labor exemptions that allow affiliate market money market fund it is in the nature of an affirmative defense but it wasn't part of this case and so the fact that that's going on that the equity strategy where the allegation was the purpose for the equity strategy was to prop up the affiliate that is now gone is the court considered that it couldn't be reasonably expected to recur and that the plaintiffs can't rely on theories and again this court's decisions iowa will be and mccarthy versus ozark which are referenced in the district court's opinion all say that that is not sufficient for that to occur and so judge kelly i also want to make sure that i've answered your question about the different forms of relief but it doesn't really matter if that if it's if it's if it's stopped and also if the plan is overfunded whether it's injunctive relief or other  claim and and it does apply that to the injunctive relief so are there are there still the folks who are making the decisions on the hundred percent equity are those folks still making those decisions i would i don't think there's anything specifically in the record but i believe that at least that some are in some markets it wouldn't have to bring an action if in fact that was something of significant concern how would that ever be remedied if there were a significant crn about plan management in an overfunded plan i would refer the court to harley's commentary on that that it could be the secretary or regulators  he also it also mentions the plant sponsor that also mentions coal you know kofu sherry's are possibilities in other words there would p people that would that would have an interest but the participants in this case because they've gotten everything that they're entitled to and there's no reason to believe that they won't that they can't get involved in the management of the plan that really encroaches on the what  which is that you cannot bring a claim for that the statute be followed that we be entitled to our personal statutory right and before i talk about that i also want to make sure that the  stake that they had in it even if it was a d b put a defined benefit plan they had some right to an amount depending on how the plan did or they had a right to information you will find that in every one of those cases in the only cases where you won't and where there where there is no continuing interest under the six circuits decision in san len and also under mccullough there would not be injunctive relief that would be available and that would be true under five zero two  three as well as the other because what you would be saying then is we want to have a right to good plan management and in fact that is something that that's really the second ground spokeo but the supreme but the fifth circuit in the punt case where the exit almost exactly the same claim was made and in fact in that case it was an underfunded plan but that's a different standing requires a concrete injury even in the context of a statutory violation and this clear you arguing you see this as an article three cases i hear you disagree with your counterpart standing and your honour's decision in mccullough as i read it definitely addressed that and recognized that but also provided in decatur in its discussion of sprint that there might be an article three basis for it as well that's how it was it was viewed both ways in the subsequent harlee decision in session all the circuit courts that have looked at this have viewed harley as an article three case and that's how we presented it below  as an article three case we did argue in our brief that to the extent spokeo would somehow be viewed as as altering article three that let's not forget that these preventions standing you know principles of harley and mccullough remain and would still be an independent basis for affirms but i think that a lot of this has converged on an article three standing and so that is what we argued before but we would say that all of the arguments for why this is a bad idea and why it would not be appropriate relief under four zero nine and five zero two eight to remain i mean you basically have t people who are entitled who are getting forty two hundred dollars or twenty dollars a month and forty two or twenty two hundred forty two dollars a month that have no risk to their benefits that are asking this court to decide for example about investment strategy that would be a per se violation without regard to different things that those are the types of issues that not only do they perhaps discourage plan sponsorship but they're also best left to the political branches where there's generalized grievances that would have a broader impact it does not affect them but under article three or prudential standing we believe that that that is that that is correct i would also just draw the court's attention and i think it's certainly in the record and we mentioned in a twenty eight j letter to the break  e that again addressed this issue of if the participant isn't affected or if the person isn't affected do they have a right to sue on a violation of a statutory right  absent any concrete risk of loss or excuse me concrete injury or particularize injury in this court said no and also mention that this is subject to rule eight as well and when we look at the in this case and this is discussed as well the risk not only as a factual matter but as a pleading matter is woefully insufficient paragraph one sixty seven of the complaint has almost a throwaway line decision dismissing the case for lack of standing be affirmed in all respects and otherwise we rely on the briefs unless the court has any further questions i see you think your honor you can't invest in affiliated funds unless there meet unless their money market funds and so in the district court dispensed of this in a footnote she referred to paragraph one thirty nine of the complaint which is not the paragraph that we're talking about  absolutely critical to recognize the difference is the supreme court and in verity a two relief is brought on behalf of the plan by a participant to protect the plan a three relief is brought by an individual in the personal capacity here the pla have been injured that was the point of harley they were injured in a personal way when the plan became underfunded due to breach and so they are entitled to seek injunctive relief under eighty three and this court has never answered the question and so that's one of first