good morning your honour's solomon sera appearing for the appellant john sender the plaintiff below i'm going to reserve four minutes of my time and i want to address three issues that this court will conducted an overall review of jurisdiction proper defendant and summary judgment on statute of limitations there's certain critical facts here that i think  germane and inform the analysis of all those issues and i'd like to briefly go over them mr sender was present at the creation of franklin in the one nine hundred seventy s while he was there they put a retirement plan in place and he was a beneficiary of that plan but he was not given the plan he was given no documents whatsoever with regard to that plan he was told in a thirty second conversation recited in his affidavit that he was going to be a beneficiary and upon retirement decades in the future when he reached age sixty five you get a benefit he leaves frankland they change the plan after he departed to give him an immediate in title meant to the benefit again no notice no information whatsoever provided to him at that point in time and the notes to mr sender they distribute benefits to the plan that he was a beneficiary of in august of one thousand nine hundred two he's not a franklin at that time he's not contacted at that time no efforts are made to locate him and they distribute they say the shares to mr sender at an address turns out it was an address that he had left long before that time now in the period of time when mr center was between his sessions at franklin when they distributed the stock he was actually working with personnel from franklin and they were working in the same conference room sitting around talking about franklin's business and at no point in time during those conversations when the original employee stock ownership plan was being distributed was he told anything by mr charles johnson the chairman and chief executive officer of franklin who he worked with he was not asked did you get the shares he was not asked what's your address our secretary would like to know we've got the shares nothing no communication whatsoever mr johnson a member of the committee yes we with member yes and he was not only that he was the agent for service of process for the committing was also a member of the trust committee the trust that oversaw the activities of the committee so the record shows your honor i think frankly indisputable way that franklin mr sander it's completely irrelevant to him the only argument that was made from that docking was the bottom part of it but both of these two documents know the employee stock ownership plan and trust they do they do say that on the face you say that he knew anything about no he didn't he didn't know that he didn't he said he didn't even know that he was a member of the plant no he knew he was told by mr scott tina when he first left his employment that he was a member of a plan he did know that we don't deny that he was never given any documents about it however and the issue with regard to the document you're looking at your honor is they it was used by the court to conclude that he was on notice of an entitlement to a claim under the plan and therefore his claim was barred by the statute of limitations that is how that document was used by the district court it does refer to the plan at the top but it's administered the minimum amount of money and it was sent to mr sender at a time when he was receiving other amounts of money trading at was trading at something probably above what he initially was intel to receive it out i don't know the stock price at that point time but i don't think that's relevant your honor because the only purpose that this doctor was used by the district court was to throw mr center out on summary judgment claiming that put him on notice that he had a claim but it didn't it didn't put him on notice that he had a claim it's a de minimis amount it came at the same time that he received numerous other dividends on money market funds on other aesop shares that he had on shares that he he had no information about that plan your honor no he was never provided any documents all he got your honor we're think an item such as that that's probably the only the single item in the record that he received that made reference to the existence of a plan it's a forty four dollar cash distribution and the court district court found that was enough to put him on notice under the with pro standard which is the ninth circuit standard for summ judgment that he knew that he had a claim that had been denied but he didn't know he had a claim all that suggested was that there was still stock and or cash sitting in a trust account that he had been told he would be franklin for their own internal purposes explained that he owned his own shares of franklin outside of the ethos at this time yes absolutely he did he had the jamison shares which he purchased from the chairman of the company in this period when he was first employed by franklin so he did have other shares let's talk about those proxies for a minute because again you've hit on the documents that the district court those two documents the district court used to knock this case out on summary judgment on statute of limitations those proxies reflect no information about number of shares they show that he jointly own the jamison shares with his wife and signed a proxy for that and he signed a proxy for other shares which he individually owned and he individually owned not only the aesop shares but he had twenty other shares of franklin that he had earned during his first period of employment he also owned those there is nothing on that proxy that distinguishes between the  p shares and the personally own shares that would put mr sender on notice again under the withrow standard that he had a claim that had been denied let alone notice that he was entitled to the shares immediately for all he knew they were still in the trust and he was when you turn sixty five you're going to be entitled to them well guess what that's what happened when he turned sixty five the federal government sometimes works and does things right and it gave them a notice and said you're entitled to these shares and when it did that he immediately acted on that of on that immediately immediately he took action and that suggests that that was news to him and certainly under the withrow standard he had never had any notice that there was a claim that had been denied your honor what the shares i mean that he was he's receiving the proxy card he may not know how many shares it refers to he's receiving money they have his address right at that point somehow they've got the same address that's being used and he returns the proxy cards i don't have these things work i had to buy a share of stock when i was in law school and i keep still getting paper from them every single year because i'm a fortune for that share of stock so what happened to the shares it's a mystery no one knows your honor but they're lost and that's why under corporations code section four nineteen the court should not a preemptive that claim i what happened to that claim it's not in the second amended complain how is it that that seems to have disappeared from a lawsuit oh it was disappeared you are because this district court ordered it was wholly and fully preempted by a recess and we couldn't bring the claim if you examine the second amended complaint there are three two or three paragraphs in that complaint that say we're preserving our right to appeal the dismissal of this claim but the court said you cannot proceed except exclusively under a ressa now if mr sanders five year old son decided to make a paper airplane out of the share certificate when it was delivered to his house or if his dog chewed it up he would be able to bring a claim under this corporation's code statute to have a replacement of a lost stolen or destroyed stock certificate that's the first cause of action that was to proceed with the lost or stolen rip stock certificate because that's an independent legal duty under the marine general case whereby the company is required to replace something that's lost it's not about delivery and it's outside the purview of its replacement your honor now i'd like to turn to the next issue which is the proper defendant and judge clift in your opinion in serious obviously clearly relevant to this in the ninth circuit's recent opinion in spined x i'm going to take  case the idea that there is no claim against the issuer here franklin resources because it used to plant committee to effectuate decisions about the administrative claim clearly has no in the law obviously internal corporate committees are the same as the corporation i mean i practice a lot in the securities law area if an audit committee screws up and allows of a bogus financial statement to be issued you don't go out and sue the audit committee you sue the company because the audit committee is acting by and for the company and every indicia of fact that was before the court here suggests that this was franklin all along there was no difference we've cited the goodies case we've cited spined x the recent ninth circuit case and these all stand for the proposition that when there's this kind of intertwined relationship the committees appointed by franklin it consists of franklin officers it had frankly had the exclusive power to appoint and remove members of the committee in the committee it paid their lawyers and accountants it used the chairman of the could company to be its agent for service of process i mean obviously this is franklin right ok i'm going to reserve the remainder of my time i'll give you some extent there but i have i have a question for you so you know there's another doctrine in play here that the district court vote latches yes latches we have the benefit of a very recent united states supreme court opinion on latches under patrol law which is unusual there's not a lot of supreme court decisions under patrol if you apply particular to this case it's clear that latches cannot be applied it's because there is a cause of action that has a specific statute of limitations in it and we filed the case within that statute of limitations under with  federal common law of four years from the date the the crew of the claimant rose so we have met the trial and furthermore justice ginsburg and betrayal is said latches is not appropriately invoked not appropriate invoked at all where quote any hindrance caused by the un availability of evidence is at least as likely to affect plaintiffs as it is to disadvantage defendant so on two scores under the recent supreme court authority latches cannot properly be applied in this case file the case consistent with the statute of limitations and the prejudice of anything is as great to the plaintiff here as it is to defendant so lots of should not be applied thank you i and he should have known at that time even under the terms of the plan before they were changed he was eligible for a distribution is that bait what was the notice from social security in two thousand and seven year and that's when he turn five so he would have known in one nine hundred ninety seven if he had been aware that the terms of the plan called for distribution are age fifty five cresta chance he knows that or or is it while you can hoping that he claims he didn't know anything about the plan statute of limitations on his benefit claim that is not correct there is no aristos statute of limitations on a claim for benefits that a legislative whole as a court discus trial and what the courts including many cases in the ninth circuit including the with real case cited by counsel there's no statute of limitations of the statute so they apply the most closely analogous state law planted ministry here and says i didn't get benefits or i'm applying for benefits or whatever that might be in the plan take some action here the plan said well you know it's too you're too late didn't say you're too late these the plane could i guess the plane could have said you know you're just too late well i don't think they didn't do that they they investigated right they look for things and then they then they deny they said well we sent you we sent you these cashed them he reported them on his income tax return specifically identifying those dividends he voted their proxy cards soon and then in one thousand examination some of the some of my ignorance here but so he got a stock certificate showing that he had a certain number of shares correct there was a stock certificate issued yes ok now if you want to sell let's say he only wanted to sell ten of those shares right does he get have to apply to the company to get this no he went silent and this is a key point going to the latches on or he would sell the shares and we believe he did so shares through the stock transfer agent not franklin and the stock transfer agent was bank those records were not in custody of franklin they were in the custody of the stock transfer agent bank of new york bank of new york destroys those records after seven years someone tried some of the twenty three years later ok so we're back on so let's say he said  york well if you sold part of the shares he would get a new certificate for the remaining shares if that would all be handled outside franklin we would not have records of him doing that was there any attempt to contact the bank of new york whoever it was treat you  trading agent and find out what records they had oh yes we contacted them they're still they were until they were sold to computor say or you know sac transfer agent for franklin for many years we went to get the records seven years are gone long before the loss of came into existence your honor and i'm the devil how do we know that he sold the one hundred forty whatever it is the one thousand four hundred chairs one thousand four hundred fifty shares how do we know that he how how do we know that he sold them that was are they key records missing because of his sitting on his her eyes for twenty three years i was reckon simply don't exist anymore and if they did i think you'd be case shut if bank of new york cannot destroy those records and that's not our fault or the notion that he stole them is your inference from the fact that he has proxy cards from eighty three and eighty four and they show dividends being paid but apparently by eighty five they've stopped correct their records that show they've he sold that i believe that was ended as well and one thousand nine hundred forty around but we do have records the list of shareholders of record he and he's on the list of shareholders of record eighty two when we think the stock was distributed eighty three eighty four eighty five and after he was no longer on the list of stock holders of record so that's further evidence that something happened when i was shares in  recognize that it could still be remanded to state court i don't think a court would have federal court would have supplemental jurisdiction over that claim he waived that by not include well but but how would that be extinguished all the logic in the in the district court's order related to the arista claim i didn't see anything that said that you couldn't claim for a long time was in his claim in his state court complaint under the state section for nineteen he specifically asserted a claim for shares from an isa he asserted a claim using the word benefits under that state law claim their claim was totally and completely preempt that the ruling as it was preempted and doesn't exist in the other state law claims i can understand i'm not sure how how the law certificate claim would be preempted virus and that's not a claim against a plan that owes me shares it's a claim that says i got the shares but the certificate replaced that's the original claim we filed i think long with two other claim right it's right and put and the other claims let's let's accept for the moment that that that you when we sustain i don't understand why the last  ficate claim has been extinguished because you don't longer has the arista type claim we believe it's simply a subsidy to claim for benefits it we're not talking cash here we're talking a very specific asset shares of stock it's just as another way for him to try and sue to get benefits so in the form of state if i bring multiple causes of action and i can and people regularly do and some of them are extinguished for some reason say the statute of limitations you don't throw everything else out just because some of the claims are properly extinguished i haven't heard a reason that explains why the last certificate claim is extinguished other than what you've told me now twice we think it's an end around i don't care that it's an end around if you can negligence claim in the other claim breach of abuse are due right were those were clearly preempted clearly and the stock replacement claim the state other state laws claim the corporation's claim was not totally preempted and that the court would have supplemental jurisdiction over that claim court could have then then the court to file an amended claim basically to get rid of those to get rid of  the district i don't think the court said do not file the foreign one thousand the state law claim they waive that and keep in mind the court also gave mr sender another chance to file an amended complaint and he declined to do what he you got to say it looks to me like paragraph four the second minute complaint stakes out that state law claim that knowledge is that it doesn't pursue it at this time because of of what it understands the court's order to be if in fact we c onclude that he staked out the times patiently is there any reason for that claim to have been extinguished other than what you've told us so far and that to my mind your honor is the reason i would like case but i'm not sure this isn't a rest a case like i've ever seen before because this isn't a claim from somebody saying i'm disabled i'm entitled to benefits there's really no dispute about plaintiff's entitle here the company doesn't say you're not entitled to benefits the company says and the plan says we sent that certificate and you knew about it and so forth and so if it was the plan administrator that sent out certificates and the plan administrator sent it to the wrong address it's not illogical to say the plant administrators the proper defendant if here it's this franklin committee that's doing it i'm not sure it's illogical that the franklin committee which has no separate legal distributed thirty years ago this was a plan that had a trust separately funded fully funded trust franklin council has conceded franklin put the shares into this trust what's in the t you know committees the plan administrator he chose this cause of action and the court ruled against them and we request that it be upheld your honor ok thank you very much and you have a minute yet almost two minutes very  you your honor this committee course no longer exists and because the trust has been dissolved the committee no longer exists these events happened a long time ago there's no committee to sue here but they were always acting for and on behalf of and for the purposes of franklin so it's proper to sue franklin and i think some of it's gotten lost here because this is a rule fifty six issue on the statute of limitations where the plaintiffs evidence is to be taken as true all inferences are to be drawn in his favor and there's two issues delivery and timeliness of the claim delivery mr sender is unequivocal he did not receive the shares timeliness all they've got to rely on are these evidences of incidence of ownership but they mean nothing in so far as the withrow standard because we're talking about two sheets of paper literally in this record one of which is a proxy which doesn't distinguish among the shares and doesn't put them on notice of an entitlement to a claim under a plan he didn't know anything about and the other one are de minimus minor dividend payments that are reflected accurately on a federal income tax return on one sheet of paper again not distinguishing between where they came from their mine or no reasonable person would conceive that these two hundred three hundred dollars forty four dollar payments would give him notice of an entitlement to a claim under the withrow standard so that argument loses the fact is that we have a full record actually with regard to his tax returns they were all produced incredibly nine hundred eighty two through the early one nine hundred ninety s they were all produced by mr center to franklin and they've had a chance to examine those they've come up with this one sheet of paper the clearly is not sufficient to entitle them to summary judgment the policy of this statute and the paul and they expressed terms of the plan document itself says that the purpose is to allow beneficiaries retain and receive their retirement benefits mr center declares under penalty of perjury he never received that these were on a services he's earned a right to try and pursue this benefit thank you thank you very much counsel we