where manager administrator are your owner in order to determine whether they have breached a reasonable a duty of reasonable care i would submit no because what we're talking about our affirmative action by a government and that retirement service provider that is providing services to the government there is a basic reason duty of reasonable care that they need to  to comply and that gross can i can let me let me ask questions because i don't want to separate for a moment the design of the plan for the termination for a nd there isn't anything illegal about t spoke of the questions obvious it seems to me that if an organization comes to somebody whose job is simply to design a plane and says here's how we would like to plan designed and what it asks  is facially legal does the service provider then have a duty in your view to go past the authorized representatives of the organization back to somebody else and say wait a minute you're president and c e o or somebody came to me with all the appropriate authority and asked me to design a perfectly legal plan but i just want to make sure there's no fraud going on is that your position well but this is not quite done your honor because i think what's important here is this is not our company with the presidency this is a governmental institution and on its face this pension was inappropriate when you quote it as if you keep saying inappropriate but i'm having that's why i asked you whether it was  the employees themselves because there are canceled canceled but there has to there has to be a duty and you're mixing together three concepts contract tort and if you share a beauty and that's where i'm having trouble understanding your argument i read the undertaking between the tribe and associated pension consultants and it says that assumes him pension consultants was an agent only with regard to ministerial non discretionary administrative services as as set forth in the service agreement and i don't understand why associated pension consultants as any duty to look out for the interests of tribal members the federal government has rules against top heavy plans and i think you've conceded as you probably must that this was compliant with the federal rules  and there is no way that the ringleaders themselves designed to this answer when it has a number of complicated elements to it which have the purpose in effect a very quickly transferring operate fundamental through it why is it an actuarial formula which is not actually formulas to was set up and that's that debate was what determines how much money gets transferred it was t in motion to dismiss we have not doubt came up with what we know we're going the way you're talking it to be drafted from scratch but when i had some involvement with the plans for small entities in my practice it wasn't like that for example the way the american bar association keel plan works is you'd send them a letter or  him a call saying you're interested they'd send you a bunch of forms of forms were the ones that they designed for anybody who got a keogh plan with the american bar association and you would just check a box do you want people to vest immediately upon i or after one year after two years or after three years you couldn't be more than after three years because of the federal up evi regulations and that it's in the back and they never sent anyone to look over your office to see if you're covering everybody that ought to be covered they never police that in any way they just process the forms and invested your money and my impression is that that's the way most small plans work closely with with mr moore on this so we see throughout the documents him being individually inviting rema leaders on a number of the components of these things now so this was not a situation where this was an off the shelf pension is your orders describing this with specifically designed by p c and more to do or by a man named greg lynn or the ring leaders for their actuarial formula that is generally four times last generous than what these people are are requesting they they also know that as a general matter that these pension plans should be lasting for a long time these individuals said sorry we do don't want your business they could have done one of two things wrong one i could have done that i'm asking whether they had a duty to say i don't want your business not so that somebody comes to you and asks to set up a plan that's pretty much assumed it was all the idea of the ringleaders they come and say set up this plan we want to set up this plan we represent the dr here's our authority you know we're on the tribal council and cetera you should say sorry i won't do that imploded all of these provisions that virtually guaranteed that millions of dollars in three and a half years are going to be transferred for my benefit it is a breach of duty for a competent retirement service provider not to say this is inappropriate for this type of client i need to take one step further at the very least to make sure that these people are not taking actions inappropriate and against the against their effective date this is we're getting lost in the record is eventually made to be july one has the effect is dated july one come about right so here's how it came about your owners and this is this is a situation where  we did not know this when we when we draft the i just want to know how it came about yeah on a b c s lens cap on the change of trustee request for three weeks before going back to the tried and telling the tried that additional paperwork needed to be completed in order who are the change of trustees form to be corrected so that thirty day window that they allege there that says that they did nothing wrong it doesn't account for the fact that they sat on that for three weeks before even coming to the drive instead other additional ministerial duties need to be done ok don i did why one of the factual question on the money that was take it out of the plan was to take it out yes we have talked before and am i let you go st so and again i'm here on behalf of a dark more insurance and financial services inc and mr garner more i'll refer to them collectively as more for the sake of simplicity  and like i said we split the time i'm going to take no more than ten minutes and then pass the remaining time to ms barnes because my time is limited i wanted to focus on two issues st the lack of possibility of the tribes claim against war and then time permitting i'd like to talk a little bit about why the end of the scarcity of the facts alleged against more of the policy considerations weighed heavily against finding that more as a financial adviser for the tribes retirement plans had a that they follow the directions of the crooks with connect in connection with determination quote with the knowledge that the rico ring leader was objective was to use the tribal pension to convert tribal money close quote is that enough of an allegation and a sufficiently plausible allegation so that we should assume as conclusory because it says they knew they knew that the crooks were stealing well there are no underlying facts establishing how it is that moore ever knew what was going on at that time first does the complaints or any of the record in front of us indicate what kind of authority the the ringleader is if you will had when they came to mr moore and said we want you to help us set up a pension i saw that they complained that i was trying to figure out whether that just meant they told them they had authority or there was something else to show again yes your honor again the allegations are that there were documents that that bore the signature of tribal leaders more substantive allegation about what more did other than once the plans were in place providing financial advice to the to the members who were beneficiaries of the plans regarding their investments in the rd amended complaint you said it was complete story is it doesn't and you said if i understood you right it says yeah it says a p c and more knew that the crooks work and converting the money  when they were taking it out but it's conclusory because it doesn't have facts to show how they knew now i'm thinking if there's a contract complaint and it a wedge is that the defendant breached the contract that's conclus the plaintiff has to say how the defendants breached the contract but if there's a complaint that intersection of action it says the defendant ran the red light you don't need any more to make it a plausible distinguish read from the other callers what exactly did you see when we're looking better be specific enough to be a sufficient plausible allegation i don't understand what can it goes back to the plans of them there there was nothing wrong with the plans that were in place they were not illegal they were appropriate what ravening of the claim is that  the compensation that the tribe was awarding to these employee defendants was asked so outrageous that somehow have knowledge because of the way the plan was going to be designed it doesn't allege that the crooks came to mr moore and said we want to steal money from the tribe to help us do it it alleges that because of the kind of plan that was designed he should have known they were going to steal money from the dr and i think the problem with that is what they're asking of war is to be calm greedy the compensation aris i'm the tribe when it's really her tribe that was responsible for  do the change of trust the documents and to terminate the ability of the crooks to take the money it looks like the plan was in title to the thirty days notice but it had thirty days notice by the st of june beginning of june from the allegations in the complaint it's clear that for whatever reason the terminations deed of the trustee was july won and that the smoking gun exhibit that the complaint points the finger at more for shit i mean when you read that entire e mail exchange of june th then i think the  entitled to thirty days notice they got thirty days notice and they still didn't make the change live if you if you look at d d though if you look at the june th portion of the e mail all done that this is a motion to dismiss on the add on the pleadings themselves it's not summary judgment so tell me what paragraph or the rd amended complaint to really well i think the district court not acknowledged that when when the e mail itself was incorporated into the language of the complaint it was appropriate to look at the e mail exchange and i wanted to point this court to the the final email in the in the chain and excuse me i a july one e mail where it's kept is that more acknowledges it's a great land that she had spoken with the new incoming trustee who was ok with the rollover of the account anyway so extent that there's any kind of allegation that there was of the late in the removal of the trustee because that would otherwise damage the tribe well the incoming trustee was saying they were going to agree to the rollover anyway so there's simply a lack of causing actions there is no there is no evidence of wrongful conduct having otherwise occurred see i have my time is running out i think the issue here is if the court is going to find that there is a duty on the part of financial advisors to become the compensation police of the organization the burden that's going to place on financial advisors and i'm running out of time is so great that it just simply for policy reasons it just doesn't make sense to place that or non financial advisors when the individuals that have the ability to oversee the compensation of these mutuals the tribe members themselves i thank you counsel thank you because you've got limited time can you start where you are your friend ended i'd like judge kleinfeld i want to understand what happened was we may one in july one so let me let me tell you what i think i know when you can tell me whether i'm wrong on rather roughly i'm a one of the tribe faxes over a change of trustee for and within five days or so mr moore provided to your client correct and it doesn't become affective into israel i want we know that right the policy itself says it it can't be effective for thirty days what tell us to tell us why the extra twenty days in a factory the extra thirty days it took an extra thirty days for it to become effective well i didn't but the complaint alleges is not that we did it is the were bad guys the bad guys were were were out to steal money and therefore by not acting more quickly you made it possible for these withdrawals to occur rollovers to occur at the days i'm talking about how do you justify the roughly extra thirty days he took to get it done at a point in time where they allege you knew there was a problem like i think there is and i actually wouldn't justify it because i don't think that's an issue that's raised by the complaint that have been raised by your honor is justified by mr gross what he just said the proper forms were not prepared and submitted to a b c and when he see with them so they tried to get those they still were not told to do it faster at it under twelve rosewall motion what do what do these documents say about the new trustee saying oh it's ok let these guys take their money just couldn't be required to act faster than that except in a special circumstance as i recall the language so why would the six months be ok under your theory  within thirty days after the proper time so any p c you're saying a p c did act within thirty days of getting the proper documents i'm going based on the early days is anything brains and what mr gross just said yes if you should have known there was some urgency from what you knew about the controversy at the time but you process this in slowly it did you get it more quickly there would have been a different result what your response to that we didn't talk about the individual who was arrested based on his his brazen as mr know if anybody around nine hundred and eleven and how the director of the f b i should have known that this was happening in the port so that down and said no that's a she when i read that i guess i was thinking the director of the of the department of justice the attorney general of the united states would know very little of what goes on because it's such a huge government department and that it indian right here to this was the rd i mean the complaint right there is a joint you had made clear before that that he was concerned about what allegations there were that would give rise to the reasonable i see the email is is documentary seventy seven  fiduciary duty i think your honor was right that the source document here the agreement doesn't support either duty and regardless of you know we get into the issue ringback of preservation we had these defendants allegedly acting or well with it here so you've got in your complaint incorporated by reference a record that says we checked with the dr and they said it was ok well actually don't in your complaint say that didn't occur to declare your honor would you allege that mean that well it's not a matter conceding your complaint incorporates by reference but e mail where a b c says we checked with the tribe but we're trying to get this done we checked with the tribe they said don't worry mr all one hundred ok but but it but what i but what i would stand in as and the reason we don't refute it in the complaint is that is subject to a number of different interpretations because what was actually the rollover request the rollover questing reference was very likely cheri meyers which was approved in august before it was known as she was involved in any of the nefarious and criminal activity