investments for mr coats and other the other similarly situated despite the fact that over the history long history of the plan the dispense of the plan had been encouraged and indeed some point during their working careers required to transfer as they aged ten percent of their assets once they reached age fifty five i thought the trial store's employers made that decision is that incorrect i'm sorry he said it was the decision disregard the instructions of the plant sponsor correct they they have said that in the aesop area that's absolutely correct but they did not say if i'm mistaken that that does not that devolves the under these particular circumstances i know you had a long history of urging people to move as they age into fixed income investments for various reasons which the company explained you want to fund was was merged into the overall fund fun a and fun b b was the fixed income fund was the next five became one fun but the consequence of that was my client was that his fixed income say hey look wait a minute we have been encouraging these participants for thirty years as they aged to take what we considered and advised them to be the prudent step of moving into fixed assets don't focus on the problem don't focus on the go go years and  funds were merged is the time when the i do sure e responsibilities gray area the merger of the two plans occurred while at the lansing and h p we're still one entity there's about a two or three month period where decisions appear from the record the pension plan have an obligation to change the investments for different beneficiaries or different beneficiaries of the plan depending on the person's presume you're saying that i'm from sixty to sixty five and then i need a different set of investments and then somebody from fifty to fifty five or forty or forty five need investment consul to tell me that i  true whether that whether there's a history or not of course i didn't run the participant can plan and make his life plans based on the particular reality that particular investment options that are available to him under fixed income investment as they aged so the history simply cannot be ignored in this particular case it's what makes it so we generous and i don't think that the sky is going to fall in terms of eliminating the discretion of been done was in fact begun by the plan administrator and a consultant there was an e mail exchange that went back and forth hate these people fit i don't think they said we don't we know nothing we now no longer know exactly what we're was to call all human resources and say look we've had this history packard had for thirty five years encouraged people as they age to move into the less volatile fixed fund investment we and fixed that was one of the suggestions that was made and you know once again this case was dismissed without the opportunity to engage in any discovery so we don't know what happened if anything to that particular type of this question but the grief factual record that we have  indicates that it would not have been a major problem to have accommodated the interests of these people who had been encouraged all their lives to go into fixed income they certainly should have taken steps to at least inform a plan what the history was and instead of giving up their life and that's the implication of a limited in any responsibility on behalf of the planet sponsor who exercised any degree of discretion regarding this package an instruction they had information from a consultant they had information from the administrator these people going through it instead of doing anything about it they then wrote a letter to all of them to sponsor the plan and they said we're making this change and this going to tell you people or why so that if you have any inclination on your own we have to go to the human resources department and make some complaint you won't know what the true facts are when after the court that one of the cornerstones of the is truth telling and the regime that h p an actual argue for here today encourages not only of blind eye to actions that adversely affect the court my name is joe bush i represent you look packer and hewlett packard for profit sharing plan i will take ten minutes and defer the rest of my time to my colleague mr tell those representing agile there are two issues that have been posed here the first is whether in a recent planned participant states a claim for breach you do sherry duty alleging that a planned sponsor amended a plan to eliminate an investment option that participant prefers to the remaining investment option i think we heard counsel acknowledged in response to questions by judge fernandes that the answer that question is now he said they should have educated the plan sponsor that doesn't change the answer doesn't change the answer because the communications that took place between permitted to consult whomever it wants and accept or reject that advice in terms of the design and the structure of the plan and we know that the courts for example in the hunter case that i yes this is an attempt to bring the matter under verity versus how when i do have to correct one statement made by counsel hewlett packard answer the complaint and then complied with rule twenty six in terms of the initial disclosure my electronic file of the document production in the case is fifteen megabytes it's huge we provided all kinds of information we provided a privileged law the privilege log shows for example that there was an opinion issued by mr barrett of oric arrington here in san francisco after professor sharpe statement relating to  the issues in the split of division of the two plans between hillock packard and agilent counsel says that there was never a securities law issue counsel has not there is nothing there let's go to the second point counsel said we were never told that it was a raw deal excerpts of record page eighteen that counsel cut into this record before this court shows that in the may fourth two thousand communication the participants in the plan were specifically told that the elimination of fun big would result in the placing of all of their funds into the diversified portfolio and that the diversified portfolio because it had equity investments was more risky than they were told that they were reliance he did something affirmative and in this instance there was nothing that a participant could do they were already assigned to agilent they could have quit their job but they didn't they stayed in the status quo there must be what would have happened have quit then he would have received his account balance if he was had entered into pay status in the new fund whatever it would have been at that time if they lied if they lied no your honor because let's assume that they had he had lied ok did he take an action remember that we also know that in the  record he is told that he is it is going to be put in the final day and that fine day is more risky he was told that that was a true statement the dispute over that but he has to have done some form of affirmative reliance on the misrepresentation so she's quitting his job such as quitting his job and he didn't do that was it doesn't matter because first of all you're assuming that it was a misrepresentation there's no evidence in the record at all that i said ok i mean if you argue with the world to a member complained but he was given the amended the complaint one time in the face of judge white's august order and was told specifically at that time what was needed to be a latch and he raised the issue  case on the first motion to dismiss but when you go back and you look at it what is happening here is an amendment to a plan where you completely diversify fund that the plaintiff has indicated that he is unwilling to say let's imprudently invest and this would be the first case unlike aesop cases where you have a non question about doing it and in terms of if we accept your argument that we don't have to have different investment horizons for each and every group of participants i need to see two  equitable relief which has been narrowly defined by the supreme court as well as in this circuit they're seeking monetary damages from fiduciaries into the plan they didn't plead that they're not seeking the relief that you settler activity the creation of a new plan plan called for one diversified fund sixty five percent equities thirty five percent fixed income within a month classic settler activity so what where we left we have to override the plan documents for appellant to prevail but this court has never found a circumstance where it was necessary to override a plan document under any circumstance the closest you can important to bear in mind that he did that argument basically is that the fiduciary has an average obligation to override in order to take into account all segments of the population but how do we how do we have in the implications of that do we to do this there's no law that would require them to override moreover congress has required diversification in other settings let's take aesop's i know it's not our situation but the tax code twenty six u s c for a one a twenty eight requires purchase requires a plan if you want to be tax qualified to permit diversification to participants age fifty five with ten years of service doesn't specify how doesn't say you have to have a bond fund that says you just have to leave this single stocks or your fate is tied to one company and be allowed to go into the broader market and there are other circumstances in a recent not here or congress has limited  completely within their rights to do it it would be a very strange result indeed about hindsight here monday morning quarterbacking that you know if this lawsuit was brought three you know several years after this lawsuit was not brought at the time that fundie disappeared and was merged into one day this is if for example the tech market did not turn down but continue to go up to this point if one of them fabulously well without benefit of hindsight we have a lawsuit perhaps with the benefit of hindsight under under your example we like you didn't last into the market you kept us in bonds see if this is an easier case than the other cases we've seen like in the ethos context it would be very strange results to overrule a plan