appeal is obviously whether the district court erred in granting summary judgment on the statute of limitations issue it's our position and i think the record clearly reflects that this summary judgment standard itself is misapplied by the district court it's unfortunate but if you look at the opinion i think a number of credibility determinations were made when they should not have been i think there are numerous issues involving inquiry notice that really are issues subject to summary and not subject to summary judgment we cited your number of cases the basically case you used a similar analysis you said that you need to look at the sophistication and expertise of the plaintiff in financial matters the existence of a longstanding business and personal relationship the existence of a fiduciary relationship and whether there's any opportunity for fraud or concealment now that was a securities case but it here we have if you look at the un really uncontradicted facts you have a man named thomas ackerman who was the first cousin  dr smith he presented a plan and said it would be handled through the mass mutual basically according to the testimony that's one contradicted the doctors say they never saw a list of policies in two thousand and seven when they say they learned probably the best evidence that they didn't know is they cash the policies in these participants hardly to a person cash their policies the whole life policies that mr ackerman had bought surreptitiously and look at the facts that are in contradicted there's no evidence that says the doctors knew the case relies entirely i mean the issue really here is whether they should have known fair it is i mean we ought to just think of it in those terms whether they knew or should have known in and in terms of the should have known it's an inquiry notice whether they should have been on inquiry notice every case that we found either district court or circuit court involving similar facts have denied summary judgment you have the maryland case mara versus bircher where missouri rose well every one of these cases going to vary i mean it's very fact intense they are fact in  i agree with that i mean let's say hypothetically i know you don't think this is your case let's say there's a plan a plan trustee is a professional person very busy  the agent is sending invoices every month or some sort of notice that would have within it a listing of how many policies are being purchased and the trustee  because he trusts the the agent basically just throwing those letters in the garbage every month on opened and then at some point you know well after the fact he discovers he's been  frauded is that person on inquiry notice when they're receiving those letters that they throw out and opened it and it's up on the i'm not on that hype and that type of situation where they don't open the right that maybe in this situation you have a woman who who was still an employee she's been there for over thirty years i mean this is a small room community twenty five thousand people in  it's a practice that has an average tenure of miss mallory and others seventeen eighteen years they have three employees of been with them over thirty five years what she did was administrative it was not discretionary well i mean but doesn't that i mean either she was his agent for this purpose and he's imputed with her failure to pay attention to this or she's not his agent for this purpose and that means it's still incumbent upon him to take the time to look at these things bush has left an incorrect she i don't disagree with what you're saying except that if you look at the facts that are on contradicted here they believe they have delegated everything to thom sacrament here's what here's what mrs meller said it volume one page one forty seven it like delegating the duty to you know to be on inquiry notice i don't know if you can do that well i mean they relied on them entirely and you know how can you ignore in this case applications that were forged there are thirty four forgeries here you have concealment in the form of taking the last signature page of prior applications clearable policy that mass mutual had they changed it after apparently after they learned of this or some other situations where on an insurance application you could take the last page that had been signed previously and just put it with another new application the best proof is in two thousand and seven they all cashed their policies in they didn't want them they didn't know about them they all thought they had one or two well i mean i think at this stage of the case nobody's disputing that there might have been fraud or concealment but you still have a limitations period to contend with even in that instance yes you do and the issue is is it fair or is it reasonable when you're looking at an inquiry issue based on i think they've done a conclusion that the person should have known should have been on inquiry notice i mean if i'm not saying that your honor ok i'm saying those are rare rare cases and this is not one of those cases if you look  paris versus regions bank and list the evidence printed permits only one conclusion where there plaintiff is inquiry no this is a question of fact right and questions of fact every day get decided on summary judgment as a matter of law every day so it's just i think we need to get beyond sort of abstractions about the nature of you know increase notice of these cases and really talk about these facts and whether your client should have been looking at some of the paperwork that came into the office i don't believe they should have under the circumstances and the only only basis for doing that is to say that mrs mallory who was a secretary and then later a an office manager had a duty to  whatever they own is doing and the you know an average person even an average busy professional would probably think in down the road a little bit at some point want to know what implicitly to tell me what i needed to know explain every detail that i needed to know and i was more than willing to give mr ackerman the responsibilities to do this don't paint the picture that i was a disinterested employee and didn't hear that's what he said and i here's is whether you know when we have a should have known standard that impute some reasonable means reasonableness is required and is it reasonable to just put complete faith in the concealer here i mean if so then there might not really be limitations period for practical purposes and many of these case relationship that's a key factor in every case that has loser is your client here as i understand it i'm not so sure about the h no i think that the district court never decided the issue but mr ackerman was clearly a plan for  this there's evidence about total reliance by the doctors on mr ackerman and you know there may be that evidence about the interest of the doctor but there's not any evidence that i am aware of that gets any more specific than that i mean for example this would be a far different cat if the doctor said i you know  would bring this within the limitations he came with he came to see them up until two thousand and six three four times a year and this really he gave them reports that were simply handwritten notes he explained and focused on growth told them that you know everything was doing was fine everybody was going to get rich everybody was you know going to have a nice the result at the end of the tunnel when they when they retired he control documents there's one contradicted evidence that he was provided with reports by q p s to deliver the doctor say i didn't get them for the fur until things went on online and computer he had complete access to all the files at in dublin  offices he discarded and destroyed certain of the documents but they ask him every year they had an annual meeting he said everything was fine they were stunned in two thousand and seven and they didn't bring suit for three or four years after that i think you have to know you having this conversation if they just sued with you want to know my answer that's why i look at them they do charitable work they go to the himalayas and do free ice surgery they take off months at a time to help other people they're in a small community and they trusted mr ackerman then they are not suspicious naturally suspicious people and would you be suspicious of your first cousin if you turned over the responsibility for a pension plan he says he has a big company like mass mutual that take care of it none of us in this room would be suspicious initially of their first cousin particularly where he comes three four times a year and tells your everything's ok where he's controlling the fouls where he's taking things out of the  well i think that has to be decided that this has to be in an any inquiry notice you have to look at all the facts you have to decide the case in a textual analysis with a textual analysis and i think when you do that and you know the someone it's always he gives informal reports he controls the data you know it's these things don't happen unless you have absolute trust to someone and it wasn't an reasonable given a first cousin relationship the periodic visits that ackerman made to dublin that i think you're out of time unless you i'm sorry appreciate you giving me a little extra time just to force i hope i've thank you may please the courts my name is barbara edelman and i'm here on behalf of all of the apple least in this case i think the court has has honed and right where we ought to be and that's the question to be addressed that was addressed by judge forster when did these trustees know or when should reasonable trustees have known about the multiple policies that were acquired in the plan between  hundred ninety eight let us not forget that the plaintiffs in this this case are trustee there's more than a circuit about what the every day man ought to know there's law about what employees under their pension plan what is it that they ought to to do give themselves notice or what would the standard be for inquiry notice and we look at cases such as the brown versus owens corning case that talks in terms of employees in a plan and what they ought to do to inform themselves about their own investments or about things that are included in a risk of plan for them and the courts pretty clear you're pretty straightforward you need to read your statements you need to read statements that are sent to you or in the case of brown which involves employees that accompany the court went so far as to say if you have access to information such as information on line and you are advised how to access that information you have a duty to access it if you look at all disputed in this case that the invoices recited all the different invoice invoices included the policy numbers or is that is that less than clear it's not disputed your honor and what testimony would you point us to i would point you to the invoices themselves and the invoices and exhibit t coupon that was torn off correct and you're saying those those invoices recite make clear the number of policies that were purchased absolutely your honor i've collected and brought to day in the year and i know i can't do visual aids but somehow it made me feel better to put my hands on it and i collected a typical end of the invoices we found and they produced nine years of invoices that were still sitting in the credenza behind miss mallory's desk that come in and the invoice shows how much do you owe and the envoy's is then backed up with a list and the list demonstrates every policy for every person as even as it say the person's name yes sir so it would be apparent looking at it that somebody has more policies than expected your honor it is completely impossible for anyone anyone to suggest to this court that when you look at this you do not see because you do see that starting right here dr j y jones life insurance gross amount due the number on the policy big amount and the amount due in premiums below it dr j y jones the next policy the number on the policy the amount due the premium and it goes through here these first seven are dr jones down at the same page there's about nine in a row that are ms mallory it is impossible for anyone to look at this and with a straight face say how would we know that's what this is it's the premium for the separate policies when one of the replacement trustees dr smally were on this list in the deposition i said sir is it clear to you that this is a list of multiple policies and he suggests that can you think of any reason why ms mallory when she saw this would have been able to reach the same conclusion because i don't know why she couldn't it's obvious if you read it if you read it these are the  invoices and as i said the testimony is they were sent they could maybe dispute because we couldn't prove the invoices from the from the during the eighty's no one could find them but there is the proof that the premiums were paid it is undisputed that our proof was the invoices that were sent in the ninety's were the same as the increases that were sent with the eighty's that show the item is asian and this isn't the only thing well this was found at the da offices sitting in the credenza behind her desk where they had removed the slip gotten these very substantial checks for forty fifty sixty thousand dollars a year that the doctors would just sign off on apparently without needing to know caring to know making any effort to know that they paid those premiums every year for something they want to argue it was just for one or two policies but no one no one looked to see what they were buying i take you back again trust steve's they're making investment decisions these were documents and this is important you heard my opponent say mr a controlled everything mr ackerman didn't control these invoices he didn't send these invoices he had mass mutual came directly from a company that's correct there were other statements your honor there's no i have a whole list cost of insurance reports found at exhibit twenty three to the motion for summary judgment the cost of insurance reports another document that came into their offices and on this document if you look through it it goes through an itemized as with a breakdown person by person how many policies policy numbers that in that sense by mass mutual the the cost of insurance report i believe was sent  wasn't are there any documents that were discovered that were created by mr ackerman that would have been reassuring and of why with respect to their no no your honor there's no evidence of any documentation that he sent that misguided this land there is no testimony other than they did come with some testimony about perhaps the intercepted things mr getty just now at his you know constant phone calls i mean we do have to presume at this stage of the case that in all these phone calls he probably was making wall and statements there you honor i think it's fair to say the testimony definitely was from the doctors that the good friend and cousin did say things like i'm handling everything oh everything's going great everything's fine and dandy they don't hammer of testimony at any point in the twenty five years of this ordeal other than they said at the first meeting he supposedly said there will be one or two polic in each person's account they didn't offer any testimony that ten years later he said you still only have two or fifteen years later he said you still only have one it would be absurd for him to have said that don't forget the doctors are signing and signing and signing dozens and dozens and dozens of applications for policies and their testament their position is we don't read we don't read what we sign we don't we don't care what we sign we just sign it so they're signing dozens of applications the testimony their testimony was mr ackerman would come down with boxes full of materials and pass out policies there are policy receipts where people received multiple policies we have proof in the record not just the invoices not just the cost of insurance let's talk about surrender forms in hundred ninety seven dr smith got out of the plan he personally signed nine surrender forms surrendering nine individual policies he says oh that's the first time i realized i had more than two that was in one thousand and ninety eight then realized he had more than two what did he do did he say anything did he go to anyone did he say wait a minute tom what's up with this how could i be signing nine forms only had two policies he said he chose not to confront mr ackerman ok it's his choice but he did have to testify he had to admit isn't true start at that point in time you as trustee at that point knew you had nine policies yes i knew that at that point not only that dr jones signed as the witness on the nine policies in nineteen ninety eight what more what more can an insurance company as a defendant or an insurance agent as a defendant do or show or demonstrate than to actually have pieces of paper that acknowledge i have these multiple policies what more could we hand if we don't have a videotape of the doctor's having a good reka moment but we do have uncon documentation that shows for twenty five years they revised how many policies they had in paperwork we have uncontroverted documentation that shows they signed surrender forms and cashed in multiple policies and not just dr smith becky thomas was another person who can stand for policies excuse me cynthia thomas cashed in for policies when she left the company becky souls cashed in multiple policies when she left the company and dr smith signed off on it these doctors take the position they shouldn't have to read quote they're busy well and i know mr getting the money to portray it as everyone is off doing humanitarian work in there for their run able to attend to business well then they should resign as trustee i can't imagine having to stand here until this court the trustees of course they have a duty they're in charge of the plan it can't be an appropriate position or a precedent that this court would want to accept that says trustees can't put their hand in the same hand claim not their fault because they trusted their insurance agent are you aware of any case that is or determination of inquiry notice and what's reasonable  affected by the fact that the plaintiff was a trustee your honor i don't have a case that i don't think right on point for inquiry notice and a trustee i think what we instead relied on was just generally the duties the higher duties of trustees i mean that i understand where you're coming from but you're sort of advocating a tougher inquiry notice standard because there trustees well i am saying your honor when you look at what is the standard of the reasonable prudent man i think you do look at the circumstance and i think as you said when we started here the very fact specific and i think it's one thing if you're a low level employee and you were counting on others that your company to do what was right in your pension plan what's reasonable they are i'm saying when you are a trustee a new brag about the fact that you never read one document something's wrong and i do think for a trustee who had a duty a duty to read the materials and because he was investing other people's money i think you do analyze that with a higher standard that it's it's impossible to fathom that they could take the position of willful ignorance as trustees and have that be acceptable and just say well i trusted the insurance agent he was my friend will probably everybody's insurance agent is their friend probably everybody's stock broker somebody they like probably every investment advisor or somebody that you're drawn to because you thought they were a good guy that's not the son excuse these  trustees these are trustees who were supposed to know and it does strike me is interesting let's say that they saw what we didn't know that the investment was in insurance well then where was the investment where was that money because you don't know you paid no attention let's look at what dr jones said when asked the first year of the plan before you had a chance for your investments to do well before that happened and when you didn't know if your investments were doing well or not how much time did you spend per week on the plant answer practically non the second year how much time did you spend per week on the plan answer put did it all the way down to the relevant period so your answer of the second years that you spent practically no time on plan a man is that i guess that's a yes ok the third here how much time did you spend approximately per week on the plan zero the fourth year cern to go through every year and i and i agree maybe that's overkill the bottom line is your honor how do we still use that how do we say well that's good enough you had a friend i realized my time is up i do appreciate the opportunity to address the court and i would ask that you please affirm what i think was a very solid decision by judge forster thank you well we all have an obligation not to twister exaggerate so i don't think th testimony shows that anyone let's talk about the nine years of invoices those were their right they were in and would you agree that any reasonable person who actually looked at it would realize that there were multiple policies for individual people and i'll tell you one ok if you do anything take the time to go read the deposition of gary hofmann he was the general agent in lexington he's now the president of ohio national insurance company here in cincinnati and i took his deposition and i gave him one of the documents i want to know whether somebody looking at the piece of paper would realize that more than you know one or two policies were being purchased for each he said not he says he you couldn't mr huffman he didn't he was shown an invoice he was shown on a one of the invoices they had a list of various policies and he said i can't tell at it they have the name of the individual i have you know under a column for you know i think in bessemer type of policy it says lie and you know there are multiple listings for each individual mr hoffman was the general agent i showed it to him and he said no one could tell for certain what they were there were there and knew what he's there other products you know mass mutual products in a new it a life in said because he said he couldn't tell no one could look at this live feed think it was lie and further inquiry by reveal it was something else but i don't believe that it i don't i'm not sure that you can argue that people who didn't even look at any of these things would be then and who are climb not to be added in these matters i'm not sure that you can cause i thought i would have seen the word lie and thought meant something else oh i can only tell you what the testimony is that it's disputed given the testimony of mr hoffman i mean there's obviously in my opinion in my view a question  there's a total exaggeration to say they bragged about not reading things they read things but that was that was advocacy and we you know we were we have enough do we have enough we have enough they were given blank you know in terms of the applications they were given numerous blank blank forms and about this signing the surrender forms the surrender forms were blank forms well that's that's i mean in we're going to sign an opinion that says that's fine that's want and the limitations period won't run you haven't sent stop asking me questions please you know what i mean to the point is i've signed numerous forms ok i've talked to other people who are very intelligent when