question we submit that the district court made several errors reversal of any of which would render dismissal of the case improper in reviewing and to dismiss the district court construed the complaint in the light most favorable to the defendants indeed crediting fidelity's accounting of the facts and their suggested inferences which is a departure from the pleading standard in the decision the district court construed in complete contest to documents infidelities favor yet even if the documents could be throughout the case of the complaint alleges that this is precisely the case when fidelity after entering into the contract with the plans shakes down mutual funds for additional compensation which is ultimately paid by the plan now the rule is not concerned with discretion or control over compensation that defendants receive from the mutual funds but rather discretionary control over the compensation they receive from the plan so well fidelity argues in the district court reasoned the plaintiffs have not a wedge that mutual funds are absolutely required to pay the infrastructure fees at issue here that's a red herring when mutual funds pay infrastructure fees  required by federal law to disclose to expense ratio they are required to disclose their expense ratios your honor but your sponsors so that at st there's no evidence that the expense ratios are ultimately where the infrastructure fees impounded it may well be the case based on the record that the infrastructure fees are included in transaction or other fees that are not disclosed but rather come out of performance in the law permits such fees not to be disclosed in that manner  addition there's an important distinction to cases like where the expense ratio was founded fairly represent the bottom line cost or at least provide sufficient disclosure of the revenue sharing fees that issue there  because revenue sharing is reflected in the difference between share class costs as alleged in those cases the difference in the expense ratios of various share classes reflected the revenue sharing payments so  sponsored could discern the amount of revenue sharing associated with different share classes and here there's there's no calculation that that can occur such that a plant on fair is able to guess is that only because of the possibility that it's showing up elsewhere than an expense ratio well one way or another the plans and which is which way which way which is the way in which it's harming we're not necessarily alleging that the fees differ as between somebody who's retired accountant service by fidelity and someone who is not as it relates to a particular mutual fund in fact it may be the case that the cost of that mutual fund in general as stop people who are accounts or service by fidelity or not are made more expensive as a result of these infrastructure fee infrastructure fees if course participants in these plans that issue here are able to allege the breach as it relates to the fees that they're paying to but it's a slightly different issue i would suppose as to the fees that non food ality retiree's i should say participants who account who that what's clear is that a participant is paying more than there would be were fidelity not charging infrastructure fees we don't have allegation that's between somebody is a counter service  somebody who's account isn't but is a result of these infrastructure fees the mutual funds are paying to fidelity the retiree's accounts are suffering and how is that if they could get the if they would not get a better deal on that fund funds are taking it out of their profits which is contrary to the allegations in the complaint in unlikely based on the inference is rising there from it if we still sticking with this injury theory for a nd if we shift from your hared in the selection of who's on the main menu what's the what's the injury there well the injury there is alternately the same injury the theory  the conduct would be a breach virtually the same under either theory as they are you making a separate argument that there is to do serious status and breach just from conduct with respect to the main menu apart from whether it influences the eight fund that's on the smallman i think you could independently find if it is your status and a breach under that theory or you argument are you making such a cl the part of it that i've just described as i don't see any allegation that apart from a small menu on funds on a small menu it changes on who's on the   ultimately in the aggregate dictates the funds that are in the small menus but more particularly that we would agree that the injury is particular as in the case of a  plan which has a smaller man year at these funds become more expensive as a result of infrastructure fees and they don't have the sufficient ability to rig reject it a fund it's been that's been selected and small many of because infrastructure alleged apart from the fact that they have the authority to select who's on me menu with respect to limitations on exit et fidelity's choices does have the ability to impact the small men year the issue was crystallize it arose after the contracts were introduced infidelity mounted the argument that they cannot in fact effect this moment here in a way that would be consistent with our allegations that the allegations you're correct don't reference the contractual authority where the discretion it might actually contractually fidelity can self determine its compensation based on these arrangements and how in my example hell is there any harm to the participants the plan before the paper knows exactly what it's going to be paying to the penny for the paper it could go elsewhere in the marketplace and thanks to prices higher what difference does it make what the cost structure is on the other side of the transaction here in the head and this again highlights the inquiry at that is ability to increase its compensation because of either plan so that as i understand it i think in this hypothetical the supplier of the paper wouldn't be collecting any compensation directly from the plans in protest against that so i think the participants but they're able to pass on those costs through at either increased expenses were decreased performance there and that next this may not be satisfied with a paper with the provider  near by pathetically deep deep cover story the district court rejected your compensation argument in part on the ground that pass through is not itself compensation since the payments being made from  composition of b there's an agreement to pay you ship a certain amount that's not what you allege so where do you get the idea that the pass through constant conversation i understand that the pass through point still would be relevant to the thir record please morning in may it please the court i'm if i may just began yesterday plaintiff's argument that fidelity is a fiduciary to plants because it receives compensation from rd party on providers has no basis in the statute and contradicts long settled case law for or its assets when negotiating these feeds what fidelity is compensation from rd parties whether in the form of infrastructure fees revenue sharing or anything else does not involve planned assets at all much less control over them and so it does not g i'm going to put you in my plan but here's the deal you have to pay me one percent of everything you get you increase your fee one percent so it will be net net no loss to you and you promise not to tell the plans that we're doing this this recent loud that so your honor if i'm understanding that the assumption there is that fidelity can then actually direct is certainly would not give rise to fiduciary status your honor because in that situation with fidelity is doing is controlling its menu of ten thousand mutual funds and there needs to be a theory of how plans or their assets are actually plans assets into a fund in order to get more revenue sharing it would be a future very well let's say they can take the small menu and they look at the small menu and anyone whether isn't this kickback they contact the revenue the fund and say i need you to raise your expense ratio by one percent and take it back to me and don't tell that we just just say you're doing it don't explain why if the  the if the references to the guidance about in relation of the big menu and the small menu the department of labor's position on that has been consistent since i thought the department of labor's position was that if you move mutual fund from the small men potentially even if you removed from the big menu without either giving notice or if you did give notice giving them sufficient time to object they start with suppose they can remove somebody from the small venue and the way they do it is they just say you're no longer on our big menu so you don't want our funds so therefore you're just going to be gone from the  small implicitly still after that funding or as i read deals advice i thought they were saying you have to give notice that you're doing that an opportunity to object it gives them a reasonable time for the plan to keep and someone orders a particular dish for their wedding i can remove that menu and meal from my big menu going for it for others but still deliver it to that person so that i don't preach my contra that's exactly what happens here is on the big menu and the plan selects that for their menu small menu then even if funday is not off the main menu it still continues on in the small menu the big menu small menu can make it sound like they're closely related but small menu control is the ability to control particular plans in where their assets can go you can disinvest from one fund and put them in another if  do that as a provider you are an out of direct a trustee you have stepped into a whole different category of fiduciary control and the the basic point about this i would like to make your hundreds is that this same contract language were written your brain just as been applied in hecker renfro fleming and columbia heir to dismiss cases materially identical to this precisely because that language shows it changed its standard form contracts to take on fiduciary control over small menu lineups that would be a dramatic change and you would expect plaintiffs to plead it in their complaint and to have a basis for it and i just that they refer to their experience their experience would include renfro flemming columbia air all holding the fidelity does not have this crucial authority they also don't have any circumstantial evidence they could have amended their complaint exists affecting existing plan investments i think is it you more peanuts remaining minutes and the the idea is that in the case of pulling something from the small menu  always because those those assets have to go somewhere so if you have the ability to reach that provider always also has the ability to move them somewhere else so you if you were can take them from one phone and move them to another and if there was an fund anymore for you to put your assets in is that itself as i read the well advice they say the mere act of saying you can't put it in this anymore not you must therefore put it somewhere else  will tell you where to put it and give you the limits of where but just you can't put it in that sunday anymore if you don't have the option as the plan of rejecting the withdraw all that itself is sherry status act so i think to two points your honor the preliminary one is i don't think that's their argument in this case they've always tied it to substitute and so for i certainly understand the distinction and there would still still suggest the power just to remove especially when it's part of maintaining and curating a ten thousand  seems to be of the view that the mere act of removal if the plan doesn't have the ability to reject that removal is itself enough to make you a fiduciary i think that is one reading  the the letters that you're referencing your honor ok if and if that reading were right do you say i was persuaded by that is there a way to distinguish that conclusion from the conclusion that removing it from the big menu is also a fiduciary act and it's not your stance and what would be that distinction if all that was being done was the removal of the funds from the offerings by the service provider because when the fund is just removed from the big menu if a plan is not invested in that on that change doesn't affect the plan at all it might as the nd circuit small the plane is simply not affected it's not affecting existing brand investments and i think that would wind up with all of the cases that we're relying on checker flemming while i'm sure and even s venue and so that section five of the service agreement is article eight one of the basic plan document and i would say it's article twenty dollars of the plant on a document which says  director trustee but director trustee inherently has no authority with respect to the investment of plan an essence it just does not cross the line but just to be more more specific to direct answer th its name menu what happens to the small menu one fidelity removes funday from the main menu does it continue on and i think you've told us it does and so the question was what specific language says funday would continue on in the small menu notwithstanding its removal from the main menu your honor i think it's all the language that i'm referring to because that would be a decision concerning a risk of the investment for that just as in the catering example you can deliver to the one customer even though you're not going to offer it in the future and so i just want to be clear this is the contracts say it all he can't take any action that actually permissible and so this is sort of common sense that these two things the ability to remove a fund from the small menu and move plan assets is not an extra completely intertwined with control over a big menu again but just to use the word permissible investment flows the plan says i noticed last year you had this fund on your main menu your big menu that looked great and i'd like to now a fund needs to be on funds network initially in opposition is that once it selected in a small many delegates cannot remove it and i just want to be clear that i go to the extent the court thinks there's any consistent i also want to point out your honor we raised this issue in our motion to dismiss there are fourteen plaintiffs in eleven different plans if they had any indication  based on speculation and it's contrary to our case law and fidelities representation and it's one last question that some of these cases seem to talk about having to give notice in a reasonable time period moment but all is just you'd be laughed out of court yet when i look at these cases and these materials they seem to contemplate that simply standard practice that sometimes you can remove it from the small venue and that what matters is how much notice you've given how much time you give to the plan to object so is it actually standard that sometimes we would assume the service writer can pull it off the small menu board is that standard that that's verboten it's ridiculous there's no reason to even think about timing and notice it thank you your honor is a very helpful question because in fact there are two standard ways to do it my point is that the deli would be laughed out of court the nd way to do it absolutely is to allow the provider when it changes its big menu to change the small menu as well and it took in that situation to avoid the new series status that again it's affecting an existing one investment so they've got to give effect before the plantain project so in our situation fidelity just gets off the stage one it cannot take an action that affects the player in the other cases and take an action that affects the plan and so it's important that the land has a real opportunity with notice without a massive termination fee to reject the and that the model of that is sentimental and just to go back i think this helps the contract when it's value if you look at the there's no analogous provision here because though he simply doesn't have that already and just returned my initial point this is something with massive consequences that providers know about this is not something that goes  in a contract or left open to question their this is about what where participants in a plan can invest their funds it's addressed clearly and in this contract it is addressed by saying he has no ok thank you very much and i just want to begin by picking up on this discussion of what happens if a plan wants to retain a fund in its more menu that fidelity has decided to move from the big menu that th just the maintenance of that authority mr garcia argues that we haven't alleged specifically with respect to the plans issue but there have been instances where plans have been eliminated from the small menu we submit that the contracts allow on fidelity's ability to unilaterally change an investment in a plan whether it could charge a termination penalty or whether it could assess these if the plan elected to swap out a mutual fund that suddenly became more expensive as a result of an and what to say as i understand one of the things we're hearing it's that civility has consistently taken the position that it doesn't have any control over the small menu if it ever did exercise that control given what it's been saying  litigation and given what we heard today the plans would have a laydown hand against it and the plans and the beneficiaries would know if they'd ever done this because it be obvious that fund was disappearing they said given all that background the represent well over ten plans in their different contracts or they've each entered into contracts with the galaxy while our the record doesn't speak to what's happening out in the marketplace  which has become more costly either by virtue of its expenses or decreased performance when they keep it in a plan by power of their coercion in ability to restrict exit when they keep it in the plan certainly the plans are happy with the position that the delegate is saying it how it interprets the contract they're not going to come in and say well we can't remove stuff but yet i think you know much of this rest in the way that the contracts are applied which we suggest it creates the necessary discretion in control and as i said but i guess you know in theory if the theory is that this late in control explains why everybody is paying these and structure fees that are in their big men you know whatever they say now if you could show in discovery that it was understood between the mutual funds that were painted the structure fees and fidelity that that control exist that i would be helpful to you it wouldn't matter if the now we say this is what it means because so long as it was understood they had that power them they were to do siri and they were exercising their do sherry power in the wrong way determine that the main main language was never acted upon that's been seven minutes judge well so any other questions for mr barry just one last question the way i view the district court it says that he  alec it describes your allegations as simply saying they had discretion over who would be in the big menu you ha