vs which was our circuits best effort to summarize all of our actual knowledge jurisprudence come out with some rule so how does the ad effect our decision making process here given that the supreme court is going to give us direction on actual knowledge well fortunately the issue presented by the just in for search in that case is almost the opposite of the issue in this case and it's  irrelevant what that what the petition for search read it quickly yesterday when i saw that search was granted was that the plaintiffs were given a plan the plan documents in the plan amendments and they said they didn't read them and that's why they did not certainly i guess i would ask that they're not going to say something that has an impact on what is actual knowledge in this case the me it seems sort of irrelevant if decision that that then you relied upon and they can blow us away if they want well your honor anything can happen including another panel of the circuit or another case of another circuit very persuasive i can go on and seems different than the supreme court i mean yeah i think that's sort of dismissive of the point that yes anything can happen but now we have the case highly relevant if not dispositive to this case that the supreme court is considering so what we do have a problem with us just holding the case i think is the real question well if the court finds that there was fraud or concealment then you know need to get to that issue of course we need is one way to satisfy the statute  but if we didn't find fraud or concealment would there be a detriment to your client if we just held the case pending the supreme court's outcome when this case started he was a middle aged man working for lockheed now he's a retired man who's got serious heart problems letters but i'm trying to understand what the position is because i think it's been an assumption that the november th letter is fraudulent and could you can we walk through that and next and you can explain to me where the fraud or the concealment actually happens certainly and that's what i was going to do so that's great lockheed needed workers in two thousand and six to fulfill some contracts they had changed their pension plans so that if they rehired their former workers even ones who are vested in that pension plan they could not get additional pension credit they had a fiduciary duty to tell those people who are participants in the plan that they could not get additional pension credit and we have expert testimony that effect that was on or about it  my client had applied before and had gotten additional pension credit after a long hiatus of employment would not have been good for them and hiring people to tell them oh by the way you can't be on our pension plan anymore going through brought up specifically and was told apply for pension bridging that was concealment because he couldn't get pension bridge and they told him he was told that by the by the recruiters is that right or was it there and so i guess what i'm wondering is i mean you're running a large corporation like this i'm not whether they should know that's one thing i did know you're on the ok but they told him to apply so your position is when they told him to apply they already knew he couldn't get it and so they he was rehired so so it's not the two thousand and five when they change the plan it's perfectly legit it's when they told him in two thousand and six that he could get a project for us so we're we're back to that original misrepresentation so the question is how did they conceal the misrepresentation of it when he applied well st of all again the initial action was a breach of produce your duty in not telling him that  e could not qualify for additional pension benefits so they misrepresented to him that he could bridge when he when he was expiring it better to hire it and then they sent him a letter granting the bridging application so that was  understand the concealment because the next step is they told him in november he understood that letter as saying you can't get you can get arrested in this a different type of plan capital plan again they say they headed for this your duty to tell him at least by the spring of two thousand and six when he was applying then they affirmatively misrepresented after the fact that he would qualify when he made the  take a position on this lima case at this juncture however the case is distinct in both legal principles and facts such that i should not keep but if the government's here arguing the solicitor general's going to file a brief i actual knowledge is actually constructive knowledge we don't know how the supreme court will rule but we do know it will tell us what actual knowledge means for purposes of one thousand one hundred and thirteen for this edge of limitations so how can we rule on that issue with  the supreme court case pending the very case that that council is relying on to say what the actual knowledge is in our circuit your honor or is this through your statute of limitations only begins to run on the date that the plaintiff has actual knowledge of the breach or violation and under any standard of that with the exception of constructive knowledge the plaintiff here did not have that actually had the actual knowledge so so i find that that position  a confusing because the plaintiff in this case says yeah i knew when i got the november e mail that they were putting me into the the original pension plan and in fact i checked online and  no more was accumulating so i understood what it meant so so in this case since particularly bad for saying that the individual doesn't have actual knowledge even if somebody else might not have it your honor it's our position that the plaintiff here did not have actual knowledge mean you talked about constructive knowledge the saleman case specifically reckon we specifically recognized a circuit split with the th circuit which held constructive knowledge was enough what if the supreme court adopts constructive knowledge based on the six circuit wouldn't that undermine this case here yes and did you did a department of labor argue in the six circuit case that they were getting out that they were going to get it wrong or did you support a petition for question please so i hear what you're arguing but i keep thinking wouldn't it make more sense to let the supreme court make its decision and then you and all the  please the court clarissa kong for lockheed martin corporation and the lockheed plan mr gunther filed his complaint too late as the court recognized this morning he did have actual knowledge had actual knowledge by november two thousand and six that he was not accruing additional credit service for his employment can i ask a question and maybe this can be addressed in rebuttal as well does joaqun concede that the june letter and the november letter were inconsistent with each other or conflicting because i'm not entirely sure that there were no law he does not in fact the question of whether mr gunther received bridging  in the way that lockheed conceives bridging is is it's accurate that he did receive bridging on his reemployment with lockey the bridging was useful for vacation service awards immediate invest immediate vesting in the capital accumulation plan a different plan and also the pay scale for his current period than current period of employment could be used towards calculating his pension benefit so in that respect mr gunther did receive bridging the july letter was accurate and that was repeated in the november letter and it is accurate that he did receive it seems to me and that thank you for your explanation because that's sort of how i viewed it was that bridging is separate from whether he's still covered by the pension plan that he apparently was told that he would be recover be covered by and that's a separate problem that i think lockheed has is your parent we had with routers they were giving inaccurate information attention requests and i think that's also a point that lockheed has not not the h r folks they are not benefits folks they don't have the ability to say whether or not a participant would receive a crude credited service in the plan in fact  to find out whether bridging would be granted but i will say and this is you know as a judge who's been a former general counsel has read these letters i think i sort of sussed out some of these differences but i can understand mr gunter's complaint here i mean like it would have to acknowledge that the joint letter was not as false a man disclosure is a good a bad and the reason for that is that mr graham there had not even come back to lockheed yet that st letter is a preliminary letter in fact it states in the letter itself that mr law mr gunther would have to reapply know might think that they weren't entitled to bridging in the in the larger sense that they were going to have to continue to groom it under the same plan and that is how mr gunther read that letter and apparently how others read it too it sounds like and that's not i guess the question here today is whether the statue of limitations began running and even assuming that the that mr  not understand that you letter in the way that lockheed meant to to state with regard to bridging by the time he comes back to employment and logged onto his account he seeing there is no accrued credit in service for his employment then he gets a letter in november and that letter states that his undersea or his reading of that letter is that he understands that it is quote the plan and whether he could get credit in the original benefits plan can you walk me through your view as to why the six years statue of limitations for fraud or conceal it is not triggered your honor the crab i'm in of mr gunther's complaint is that he was told that he could bridge meaning that his understanding was that he could letter at his deposition he also testified that there were no other communications on which he relied to have communicated that he would be accruing credit as a service under the plan then  operative breach of fiduciary duty is an alleged misrepresentation in the july letter it isn't the plan amendment that occurred in two thousand and five it's the letter that he received in that then causes the injury that he was claiming here and under the th circuit's case and gabriel surcharge requires a causation and harm and the causation plan when he returns to the hockey insta tembe or she logs on to his pension account three times in a temper once an early october to check whether he's receiving accrued credit service he doesn't see that he is then he gets a letter in november where in his deposition he states that the november letter told him that he was not able to accrue credit service and that his understanding of july letter was incorrect he stops logging into his account in november and december and the reason for that he states in his deposition testimony is because he received the november letter there isn't any concealment of the what it what it's like its position as to whether we should hold our decision pending the supreme court's decision in the case i would think granted cert and have supplemental briefing there thereafter alive it's our position that there is no need to hold the case our case gunther case the reason for that is that the petition for cert talks about the circuit split between the th circuit's decision in salema and the th circuit the th circuit was a construct of knowledge type standard as opposed to an actual knowledge standard it equated actual knowledge to more of a construct of knowledge and that if a participant receives communications informing them of the underlying facts that could  be the basis for breach of fiduciary duty claim that whether or not the participant read those communications would be immaterial to the running of the statue of limitations here mr gunther received the november letter he testified at his deposition that he read and understood it that's one distinguishing factor from selena the other thing is that we're not just talking about two letters in july and november we're not just talking about a discrepancy between those two letters we're also faced with the key swear mr gunther is logging into his account multiple times in september and october and seeing that he is not receiving a crude credit service this is a case that under the actual knowledge standard before salema after salema and under the th circuit standard it's clear that mr gunther had actual knowledge that would have caused the statue  limitations to start running so if i understand you you're saying under any standard the supreme court dreams up for actual knowledge mr gunther would have actual knowledge correct your honor the  stretch in salema further than than the way it will bear but there is at least going to argues that notwithstanding all this evidence and that they seem to contest the discrepancy on the june the november letters the still wasn't any actual knowledge of what the plan was that he was on and i'd like you to address it because my understanding is even though the plan was amended in two thousand and five those plan amendments weren't put out to the employees until two thousand and eight i don't know if i have my facts right on that but i'd be interested in in hearing what you have to say it is not correct that the employees did not have notice of the amendment amendment occurred in two thousand and five employees and former employees anyone who was a participant in the plan received a mail or in this case it would satisfy the requirement that plan sponsors a plan to minister summary of material modifications when the plan was restated it incorporated all of the plan amendments that have occurred prior to that restatement if mr gunther had asked for a copy of the plan of the summary plan description he would have been given a copy of the plan as it was at the time including any amendments so it's not that the participants were never informed of the change in the in the plan in fact the media covered the change in the they called the frozen you know defined benefit plan and no i saw the media references but is it true so your position is mr cantor could have asked for any would have received it and apparently that didn't happen but if you were to log into his account and try and look at the plan that was not restated intel two thousand and eight is that correct yes i don't know the dat restatement but the plan and then it would have been posted as well if there was a way so there was a plan a memo when he was hired on there was a plan amendment that was posted in in in the materials that he would have been able to access onli yes there was a plan amendment in two thousand and five it was signed and actually it would be it would have been provided to purchase but whether or not it was on a you know intra net for employees that is not in the record well i thought it was in the red i mean that's why i'm asking because i had thought that it was in the record that it wasn't available until two thousand and eight on the internet and i don't know that this is just positive but it's a fact that i want i would like to nail down so i have a full understanding of what's additionally it was available to participants whether or not it was posted or whether participants access documents through the internet internet i don't believe that that is part of the record but in any event the impact to mr gunther of the plan amendment was apparent by the fact that he was logging into his account in september and october two thousand and six and seeing no credit service he also received a november letter where it is clear that the impact of that amendment is shown to him in his understanding that july letter didn't mean what he thought it why didn't you say what you said in the november letter in the july letter your honor the july letter was a preliminary letter mr gunther had not returned to employment and in fact it wasn't clear whether he would be offered employment when you have it wouldn't i mean in november you write that hey by the way you're not going to get credit for your current service why would you say the same thing you knew that was the case why wouldn't you say it in the june letter to say your bridge as far as that goes but guess what we have a new plan and here it is and i think at that point it was because mr gunter had not returned to employment and the letter that he received in november does state in response to his nd bridging and requests which was required by him to submit will be if you weren't anticipating that he would come to employment there'd be no reason to talk about bridging because he wouldn't bridged it i mean bridging only comes up if you're thinking about retiring now doesn't it correct at that point the participants had also received the summary of material the question of whether what bridging means that was argued at the trial court by lockheed they said we didn't promise what he thinks we promised him we presented expert testimony and other evidence and legal argument to the effect that bridging did would mean it had been changed rd of all the form that was sent out to current employees explaining the change in the plan was not sent to my client there was zero evidence it was mailed to him there is no list of people is mailed to there's no indication of what the form letter would have been none of that exists there is no evidence that was available to him online as a non employee am i making up this two thousand and eight date or should i read what is the one day restated the plan that is absolutely