scheme against plaintiffs plan as well as hundreds of other plans across the country through which they double charged for securities transactions made on behalf of those point of self healing correct not ok but our our primary argument is that he has representative standing on behalf of his plan i understand that but are you also i going for individualized standing ye terms of the individual pune area harm but he himself question is if if you were to prevail on representative standing we have to deal with the individual standing issue no no no you are because there's no dispute that the to your honor as i as i was saying i we believe representative standing ones are that issues already been decided by this court in the long island headstart case and  decision in long island head start was solidly grounded in the law as the supreme court held in sprint and more recently in spokeo federal courts should be guided in the statutory contacts in terms of determining the scope of article three standing by two factors congressional intent and history and both those factors support not recognizing representative standing for resupplying to us with respect to congressional losses to the plan resulting from each such breach close quote so that the fact that that section of the run is participants to recover losses to the plant as a whole makes clear that seventy seven correct that's that that's the loss of the plan that's what that's what we have been able to establish so far which came about by hate and it indifferent to congressional intent through the plain language of the statue being clear that participants of representative standing history also supports recognizing trust law and trust law is to be used as a basis for interpreting a result this is correct that the third fourth six eighth and ninth circuit's of all concluded the plan participants have got to show some individual injury in order to bring claims in a representative capacity well many many of those decisions are factually distinguishable understood usual from this case but it is as a matter of the employee plans is that correct i believe you could argue that that is the case let me let me flip it then is there a circuit out there per individual as i correct something less than a cent was the as injury ascribed to the self sealing and to the to each participant is that  famous quote that an identifiable trifle is insufficient for standing this court has also had numerous cases in it again at the amount of an economic loss is not relevant to determining whether an injury is sufficient for standing and in my memory serves i believe injuring the scrap case was something on the order of two representational standing and perhaps we should think if we look at cowen vs coffman this this court has acknowledged that representational standing exists for participants to bring a cause of action on behalf of a plant i think donahue vs bulldog also supports this and donahue lays out what the what the requirements are what the what the analysis is and just to remind the court the the article three analysis of injury is done at the at the planned level and whether or not a participant has the analysis of the participants interest in the plan is not an article three standing in the aisle though he were talking about individual sanding and looking for injury in fact well we that's correct your hon and if you'd like me to go directly to the individual standing i'm happy to do that i was was talking about the representational standing of the individual on behalf of only his plan i was not addressing i think the more problematic issue is the individual standing person and that's what i  subsequently we have candle which to which approvingly cites that and says that the kendall plaintiff didn't wasn't specific enough you you cannot walk into court and say i have my plan isn't complying with the reason but i'm not going to plead specific ways in which that's the case there we've had a recent decision in i v and we think that the three of those cases can be read read together they'd be kendal plaintiff alleged my plan isn't playing with the rest of it also looked to a specific it tried to plead specific damages but did not allege sufficient facts to establish that she had a right to some funds it was if she was pleading on behalf of a hypothetical participant and the court said that's not sufficient and we think that i v can be read in the same way which is that person i v the distinguishing fact was that the plan didn't lose anything they made money that that's right that's right and so the the damages the cause of action that was alleged was illusory and not one recognized under law and therefore there was no injury in fact it was able to be pled because there was no allegation of a deprivation of a specific right to look right to these a loser e profits when when in fact they did they had no right it's under the law do you think that mr fletcher based the on the article three standing issues on the individual i standing and on the representations stand and i'd like to move back to the representational standing it leaves to just a moment if i toyed that the  question earlier about whether or not reaching that issue would would be sufficient and you would not have to reach the financial institution scandal idea should the secretary agrees that that's the case but but we think that  there the circuit split is is not a making of a decision that would be handed down as a result of the fletcher case that already exists to the extent that financial institutions held that the assertion of a deprivation of a specific right under  he has not been harmed by the defendant's alleged conduct in any way and nor is there any chance that he will be harmed by the defendant's alleged conduct and that's something that judge stanton correctly found i'm happy to talk about the you're suggesting that there's no chance of harm because it's guaranteed that he will be who will receive his benefits why is there no chance of harm that there's no chance it is going to be harmed by the by the defendant's conduct here and that that the district court correctly found and that i think is your honor's point that we're only talking about three quarters of a cent or participant here that could actually affect mr fletcher and and i think it's important that we frame what what mr fletcher's interest is in this litigation article three says before somebody comes in the door to an article three court they have to have a stake in the litigation they have to have suffered an injury there can be redress by this court that was caused by the harm that they're alleging and here mr fletcher's injury or i'm sorry mr fletcher's benefit the interest that he has in this occasion as we know from the supreme court's decision in using aircraft is in his defined benefit under a defined benefit pension plan he has a right to only that he does not have a right to the plan assets to the general pool of assets held in the defined benefit plan he does not have a right to any plans for a surplus nor does he have a right to police the the the management to plan assets if it doesn't impact the four hundred thousand participants in the plan is there's no there's no diminution of his benefit does not he mr fletcher will receive his benefit plan is woefully underfunded that's correct your honor it's certainly not because of the fifteen hundred seventy seven dollars or have to look at there at the fifteen hundred so as a mathematical proposition zero increase in the risk of solvency as a result i think the risk of insolvency is the percentage the judge and the risk of increase of insolvency is the percentage the judge stanton calculated which is some fraction of a hundredth of a percent and that is not enough to satisfy article three requirements which require actual and imminent injury what would be enough down there and well your honor fortunately that's not a time sort of what we have to think about it is a of course it is and and i think one could imagine a scenario where the where the alleged harm may actually increase the plan's risk of default or enhance the plan's risk of default which look to the supreme court and the rw told courts to look to in a defined benefit kind of situation where there was some self dealing and sort of had an up and you had a down on the balance to off a percentage that judged them calculate your i think you i think you need to look at the individual circumstances that were the particularized nature of whatever the harm is alleged there so deserve some ill feeling whatever the self dealing is whether it's continuing with the funded status of the plan was before whether there is i think you could envision for example i think this was some of the allegations in long island head start which if you could be found to have an injury there the allegations are that there there was on the fiduciary were failing to recover with liability from withdrawing employers and they were doing that as a matter of practice and they were not seeking to recover these delinquent contributions from the employers with more withdrawing from this multiemployer welfare plan and a fiduciary continued to do that over time i think you could see how it might go from overfunded one day two underfunded the next and then to significantly underfunded if that conduct ten you'd that is not  situation that we're faced with here i think we could posit one where where such an inevitability might be or or the risk of that loss might be imminent enough or not speculative or not hypothetical but here we're not dealing with that the last that would be it would have to be caused by this fifteen hundred seventy seven dollars is just purely conjecture here and that's not what article three is allowed to go forward would you i would i would also submit that the fifth circuit has now joined those circuits in the leave versus horizon case applying spokeo in this context the fifth circuit there was presented by the same arguments under vermont agency in under and i would actually suggest that the second circuit is also among the among the circuits that have rejected that notion although they haven't called it that they've rejected that notion if you look at the the second circuit's decision there the individual participants it was a different type of plan yes and it was an employee stock ownership plan so i think that speaks to whether there's an individual ised inquiry but as it relates to the representational standing question to very specifically found that i'll quote and this was the quote from judge stanton's decision or is the plan participants lack standing to sue for a risk of violations that cause injury to a plan but not individualize injury to the plan participant that's exactly what we have here and that's not consistent with plaintiff's reading of long island headstart and that does not suggest a circuit split if anything that suggests that to various red long island head start in the footnote and act and then said no when we have a plan even if the plan has been injured if the participant has not suffered in individual eyes and inquiry that participant lacks standing to sue and that's exactly what we're dealing with here so i don't believe that there is a circuit split and i don't believe that long island head start should be read as plaintiffs and the department suggests it should but of course the department assists would be three cases i guess in tandem maybe a few more but donahue kendall plus bulldog and donahue section sixteen the case of the exchange act i think of you first is bulldogs actually somewhat instructive here because it says if you're looking at whether or not an individual has been injured and whether an individual has has a right to sue for this injury whether it's in the representational derivative capacity you look at the statute that he's that he or she is suing under and the particular rights that are conferred there and the rights that are implicated there and in section sixteen be an issue or is right or interest in the profits of short straight short short swing trading that's what that was that into that's what that's that is the issue and that's what was at issue i'm well actually i'm sorry your honor it's not in its long island headstart is equally distinguishable because long island headstart was an employee welfare plan so we're talking about very different interests at stake when we're talking about a welfare benefit plan and the defined benefit plan that's an interest here  in central in the in the fletcher case the central state's plan that we're talking about is a defined benefit plan for long island had the planet issue in the long island headstart case with a welfare plan and those are very different types and the rights of the participants in those different plans are are stream that the statute to the pension plan affords him in a defined benefit pension plan it's different than as your honor suggests in the plan in the in the employee stock ownership plan that was interesting to varus and whether or not and the question there as it relates to individual is inquiry looked at what that what those participants rights were and there it was to it was dependent on where they invested their money and who could sue under your s certainly could and and plaintiffs implicitly conceded that they would need a fiduciary to bring a claim like this where mr fletcher himself as a participant was not impacted when we first when windows first filed their complaint mr fletcher was the only plaintiff on behalf of the central state's plan with fifteen hundred seventy seven dollars it was all the plan was facing plaintiffs after our first motion to dismiss which raise all the arguments that are before the court right now plaintiffs amended their complaint and added claims for an  another plaintiff who was a fiduciary to another plan the teamsters local plan that's an implicit concession that they needed a fiduciary to bring to remedy these to remedy these harms to the extent they occurred discovery panned mr potter's teamsters local plan was not impacted at all by this alleged self dealing scheme he his plan was not even touched and so he had no claim at all neither did his plan a little confuse for big you said it's because maybe portion of one cent right if it had been three cents would be would you would you agree then that there was some injury your honor i would i would look to  things the first is article three standard of what injury is and i don't think three cents reaches that but i do think dr stanton was looking at the causation component there and the who doesn't of course describe it as that he describes it as the injury in fact so i think he does i think he does because what he says i believe is that he looks he looks to that and says this is speculative reduction or nonpayment is not attributable to the over charges and to get his full benefit well what is your view i'm trying to understand if you or hughes aircraft tells us mr fletcher's right is to his benefit his monthly benefit when he retires and then the question that this court must ask to determine whether he has suffered an individual ais particularize concrete injury that we know we need now in the wake of spokeo and leavers his rise in is whether that benefit not enough to his plans assets he has no interest in the plans assets unless the unless some harm to the plan affects his benefit and those are two entirely different things so what happens with the investment of his assets is not necessarily going to impact his benefit he gets the benefit stream that's what hughes aircraft says and that's what le roux says and and less his benefits stream is is is violated and we surrounding mr fletcher and his benefit and there's a lot of factors that the court would have to consider the stretch stanton found that the fifteen hundred seventy seven dollars in the face of four hundred thousand participants and a sixteen billion dollars underfunding could not plausibly be the cause of any risk to his pension benefit being denied and if that number instead of war or reduce or reduced if the number instead of fifteen hundred seventy seven w let's take let's say it was fifteen billion and therefore might bring the plan closer to solvency you still would need to look at the particular circumstances surrounding mr fletcher and surrounding his plan there are variables that will dictate whether or not that are not before the court right now but that will determine whether or not mr fletcher gets his benefit or not the first is his age playing is of not alleged how old mr fletcher is if mr fletcher i believe he might be in his early sixty's if he's approaching retirement and if he's slated to start receiving a pension benefit next year it's almost certain that he'll get back benefit the plan is still paying benefits i might be in trouble down the line but it's still paying benefits now so if mr fletcher goes into retirement next year and lives for another ten years he might not lose a penny and that's something that the court would have to consider if those facts were before it similarly interest rates to plans funding status and interest rates might go up soon and if they do  the interest rate that's applied to the actuarial calculations and to the plans assets and the discount rate so that if that's applied to the plan assets then dictates the funded status and it might go from sixteen billion to something less than we should shift it could ship than its assets could perform better all of those are variables that are not before this court and need not be before this court because just as there just report correctly found that just no plausible way that the fifteen hundred seventy seven dollars could cause any injury to mr fletcher when his only right here is to his defined benefit which is not at risk because of defendant's conduct thank you you have two minutes for about all of the here on our one thing i'd like to emphasize is that all the other a poll circuit court decisions that have addressed the standing of defined benefit plan was on the notion that if the plans already over funded how can you be harmed if if if there was imprudent investment that only affected you know to do tens of thousands of dollars and it wouldn't have endangered your your pension and the only exception to that is the fifth circuit's decision that's an unpublished decision so i'm sorry i just want to point out that in terms of a circuit split and you could argue that that that that there is no circuit split with respect to underfunded plans such as we have in this instance in addition are i want to emphasize that that if you read those other opinions they never really focused on one problem with their their holdings and that is  that that original makes no distinction between for do serious and participants when it comes to giving him capacity to bring suit on behalf of their pension and my just to use opponent here as is conceded looks good for for this year is good for participants as a matter of standing correct that they both have an interest in in the integrity of their their employee benefit and i be bringing suit to benefit his his or her trust history also provides makes their the beneficiaries have standing to bring suit to benefit their trust even when they have not distributions and it found that she had that standing because quote she had a protected interest in the prudent and loyal administration of the trust and she had it allege an invasion of that interest and  would you just take a minute and explain your claim that mr fletcher can also represent other plans based on fella i think is the case the six challenge to both to all the plans that were served by converts x would you ask me asking you if that is your argument or explain the claim that he could represent plans of which he was not a participant well we interpret the the district court's holding in this respect as as holding that plaintiff fletcher emerged bringing us action have statutory standing not only to bring his claim but also to bring the claim of other class members even if he's not a member of the other plaids i'm just i'm just describing the i'm describing the district court's holding here that that's what it seemed to it seemed to have held that that point of pleasure would also in order for your class i order bring a class action would also have to be a member of all the other plans but there's a plain court has repeatedly held that class actions are simply a species of of traditional jointer in which multiple claims are joined together as one and just and in the case of traditional jointer each play to bring the claim has to satisfy the jurisdictional and standing requirements to bring that claim and so is it and in this case play fletcher has met that requirement with respect to his claim he is a member of his plan and he's bringing his claim on behalf of his pla s and it enters the individual class members who have to satisfy the standing requirements for their claim and included in the class are participants in name for use years of of each of each of the points affect no statutory standing requirements are satisfied with respect to all the claims joined in that in the case and there's nothing in rule twenty three or reserve that requires requires anything but take a minute only because it didn't come up in the end of the first piece of his argument your honor thank you but it was in a very i'm sorry but it was in the plaintiff while the the statutory provision giving giving participants beneficiaries and fiduciaries a cause of action to bring suit may not make a distinction between participants and fiduciaries the statute itself certainly does a very different interest and in fact an obligation in the management of plant assets and and to oversee the plan assets to do sherry's don't have a right to a pension benefit like mr fletcher does like a participant does instead they have an obligation to do to adhere to their duties that are set out in the statute so to suggest that there is no distinction in the statute between a participant and a fiduciary is just not correct