allege that the fiduciary is an employee stock ownership plan and violated a recess duty of prudence by failing to act on inside information in the course of answering that question this quote went out of its way to emphasize that for duty of prudence claims that allege that the defendants acted imprudently because they failed to make an earlier disclosure of a known problem within the company gender specifically identified five key facts that if alleged are sufficient to possibly sta claim and judge catherine's opinion in gender helpfully lists out these five facts one by one and i'm happy to address all of them but with the court's indulgence i'd like to focus on the last of these key facts an allegation that disclosure was inevitable because the defendants have conceded that the other four are satisfied here and they grounded their bid for dismissal principally on the theory that disclosure was not inevitable but contrary to what the defendants s appendix and was the very clearly that and i'm going to quote right from them here the defendant we're going to half disclose the billions of dollars of underfunded insurance liabilities and would be unable to hide the problem because they inevitably would have to fund the insurance subsidiaries with billions needed to make policy holder claims as they came due now this is an allegation of inevitability but it's not the only one if the court looks just one paragraph below that allegation and you'll see another one the very next paragraph the complaint added a specific fact to support the claim that disclosure was inevitable and again i'm just going to quote from it it says that quote other insurers with underfunded long term care liabilities inevitably had to disclose the problem this is again on the same page just the other allegation in the joy dependents and offered to concrete examples of other major companies that are around the same time we're forced to disclose that they too have massively miscalculated their long term care of the abilities that's significant because other companies could not conceal the same problem it further tips the scales in favor of pulp of possibility that the same was true for g e and once non disclosure is no longer the relevant point of comparison uprooted fiduciary would have to conclude that disclosure could only help not hurt the plan now the defendants say that even this isn't enough to possibly establish that disclosure was inevitable but taken together with the other relevant allegations in the complaint explaining why prompts disclosure of corporate fraud minimizes harm rather than increases it that allegation is more than enough to state a claim under gender and the reason that's true comes right from gender itself in this context as this court splined in in that opinion alleging the disclosure is unfair not quite joined in meeting course the district court in this case essentially treated generous as no longer good law once the supreme court accepted the petition for certiorari in the st round it didn't even allow the rationale of the reasoning that this co it's not exactly the same because it isn't in gender the key thing that i thought that made disclosure inevitable was that the parent company was trying to sell off the subsidiary so that the disclosure would come out in the course of due diligence and in that situation that's not the case here that's correct or are not the specific in the specific context and which inevitability which the complaining alleged inevitability engender is out to us a moment ago is an allegation that g e would have to continue to shell out billions of dollars to prop up these insurance companies right well it well there's two allegations the st is that yes that that inevitably these payments would come do billions of dollars in liabilities that they that they were on the hook for regardless they couldn't avoid those obligations but the nd allegation goes beyond that and then identifies to come howard or companies who are in a very similar position to g e around the same time that were forced to disclose the same problem both and both of them went belly up they imploded precisely because of this long term care liability problem if i could your honor just to respond to that one more way because i think this is actually to me the key if you go and you look at the specific allegation in gender and judge kap compares the allegations on inevitability here with a single allegation on inevitability in general you'll see what i mean by when i say that i think the complaint here does a better job is stronger on this point in gender and this is a paragraph one hundred and eleven in in the joint appendix on page eighty eight the complaint said that the that the defendants know or should have known and again i'm quoting them that disclosure of the fraud was going to happen one way or another i b m had spent almost two years actively seeking a buyer for the micro alectryon extensiveness it was more likely than not that the nd would be which defendants knew or sort of know that's it not that not that even a definitive statement or allegation that the sale was was inevitable just that it was more likely than not that it would be sought and what the court engender said was at the pleading stage that's enough that's enough to establish a  inevitability and st i'd like to mr wessler said that we conceded that all of the other factors of of gender were present that is absolutely not true one key factor in jantar was that there was no conditions of market uncertainty because the events weren't occurring during our market recession that is not the case here mr webb wessler has tethered all of his arguments to the two thousand and nine and ten timeframe when their work has a market uncertainty but  the nd point i'd like to make is on this point of inevitability just saying the word inevitable in a complaint isn't enough to get across the line of possibility a plaintive said the same thing in san edison and in the case against wells fargo and target but what business had had actual certain losses that had been incurred in the past and that would come out because something had arisen to make that disclosure no longer that to make non disclosure no longer a realistic option mentioned which was the decision to sell the subsidiary here we have neither of those things we're not when we're talking about reserves we're not talking about invoices for past you announce reserves are essentially projections of or estimates  future potential liabilities that may be incurred years or decades in the future depending on whether long term claims are filed or not and even if it were the case that reserve levels were lower than they were supposed to be in two thousand and nine and ten there are still a whole bunch of factors that could make those reserve levels adequate to cover the future losses and again we're talking about liabilities for years and decades in the future if interest rates go up if healthcare claims go down if you are claims are filed than expected if congress passes a universal long term care bill as they floated in the past all of those things could change the analysis and make it so that the reserves were actually adequate to cover any expected losses in the future and so a prudent fiduciary face to face with that type of uncertainly uncertainty could easily say wait a minute i'm not going to trigger a stock drop when any number of things could play out in the correct that that is enough to satisfy gender because remember in january the court said that in the normal case and in the normal case generalized economic analyses of law in a court said in the normal case disclosure isn't going to be inevitable and so non disclosure remains a realistic option it's only when something happens to make non disclosure no longer be a list that any prudent fiduciary would have to accept that disclosing information and triggering a stock drop would would be the right thing to do and here your honor there is nothing that happens and again you know we're talking about a two thousand and nine and ten timeframe to say that non disclosure are no longer remained a realistic option as a janitor when nothing was disclosed for almost a decade later just kind of defies common sense and also like to note these two other insurers that mr west point to as being really critical there are dozens of long term care insurers on the market one of the his opening brief it's called us at the state of the presentation on the state of the u s long term care industry it identifies twenty five long term care insurance and those are just the top twenty five so to say that two out of twenty five long term care books failed doesn't get you even to likely disclosure it certainly doesn't get you to inevitable disclosure and while my friend you know harps on the notion that  is a low bar remember that that what has to plausibly be alleged is a high standard and the supreme court said it there for a reason and what has to be plausibly alleged is that disclosure is inevitable and what has to be plausibly alleged is that what edison failed even though it was allegedly and in really bad financial conditions and the same thing with lehman brothers is that in case after case the alternative options that the plaintiffs are recommending and that mr blair proposed here are options that that didn't offer itself lads as an enormously harmful i mean anyone with common sense would say if a fiduciary discloses inside information that's going to cause a stock and it's going to harm participants and so when the only options that are proposed are ones that are affirmatively going to harm participants it should be a rare case that that gets through a motion to dismiss because the st rule i am sure of being fiduciary is do no harm to participants and he judging fiduciaries actions in hindsight and so you have to put yourself back in the position that to do sure it would have been in two thousand and nine or ten when you're in that in the middle of a great recession the one thing now is that if you disclose inside information or close the stock fund with ten one billion dollars of planned assets in it it's going to trigger a stock drop on the other hand you have these reserves that even yes they were even assuming for purposes of this argument right now they were actually lower than they should have been in two thousand and nine and ten you know that there are all kinds of things that could happen between now and when you know claims may be filed in two hundred and two extension forty that could make disclosure not inevitable that's the missing contact gender there's an allegation that a factual circumstance that suggests because of what you're pointing out was something that was already on the table that the inevitable inevitable disclosure is sooner or later things are just going to get worse and what you're saying is well sooner or later covers a lot of time in this case of winds up with the benefit of hindsight covering it but no one knows  that there's not that kind of fact that says the disclosure is inevitable tomorrow or next year or sometime in the near timeframe is that is that essentially your argument it's to prague we're saying that disclosure was not inevitable at all because these are future contingencies that change based on future events and we're also saying that it certainly wasn't the case that nondisclosure no longer was a realistic option there was one other issue i was hoping to briefly address  who the plan fiduciaries who had authority to manage the plant assets at the plant document is unambiguous on this point it was the plan trustees that had that authority and even after we raised this issue in our motion to dismiss she stood on her complaint and sued to defendants who have absolutely no fiduciary authority to manage plan assets and this wasn't a mistake your honour's because the reason why she did this is that if she had sued the plan trustees there's no way is this an issue that the some action to be taken within the calendar year on that occasion if i could your honor just to make to pre echo our rebuttal what you heard by and large from my friend on the other side was a merits defects that they didn't think if there was any doubt that the at that the allegations in the complaint didn't sufficiently state that there was a problem of of a of a nature that would ultimately lead to the disclosure that we saw happen want to new  wells notice finding after two years of thorough discovery that there that they are planning to move forward with an in forstmann action against the company for precisely the problem that we have alleged existed for the past decade in this company and we don't have the wells on it but we have the disclosure for as long as possible was at all a prudent action and if down the road in this case it turns out that she is correct about its view of either the existence or nature of this problem or would have done it will win but at the pleading stage it doesn't get to come in and assert that all of the allegations that we've included in the complaint are wrong on the merits that is that is for the next stage of the case the district court here failed to even  allegations which as i pointed out to this panel are more concrete than the one single allegation in gender that identify an effort ability that the panel in general relied on and if you put it all together under gender regardless of the