[00:00:00] Speaker 00: Base number 23-7059, Daryl Wilcox and Michael McGuire individually and as representatives of a class of participants and beneficiaries in and on behalf of the Georgetown University Defined Contribution Retirement Plan, the Georgetown University Voluntary Contribution Retirement Plan, a balance versus Georgetown University et al. [00:00:21] Speaker 00: Mr. Bloom for the balance, Ms. [00:00:23] Speaker 00: Zaharsky for the appellees. [00:00:29] Speaker 03: Good morning, Your Honor, and may it please the court. [00:00:32] Speaker 03: My name is James Bloom from the firm Schneider Wallace, Cottrell Connachie, on behalf of plaintiff's appellants, Brian Wilcox and Michael McGuire, who bring their claims on behalf of the Georgetown Plans. [00:00:45] Speaker 03: And we respectfully request that the court reverse the district court's decision denying leave to amend [00:00:52] Speaker 03: and remand the case to the district court with instructions to grant plaintiff's motion for leave to file the proposed amended complaint. [00:01:01] Speaker 03: So ERISA, the Employee Retirement Income Security Act of 1974, was designed to protect employee retirement savings. [00:01:11] Speaker 03: And to achieve that purpose, ERISA imposed strict fiduciary duties of prudence and loyalty on those responsible for administering retirement plans [00:01:20] Speaker 03: as defendants were responsible for administering the Georgetown plans that issue this case. [00:01:25] Speaker 01: And I would indicate that when you have a motion to amend, it doesn't seem that hard to have a court granted. [00:01:36] Speaker 01: and give you the opportunity to cure any deficiencies, but you know, you just can't be futile. [00:01:42] Speaker 01: And it seems that here, you're not alleging direct wrongdoing by Georgetown, that you're kind of putting together more of a circumstantial case, because you're using terms that say they may have [00:01:53] Speaker 01: failed to prudently damage and monitor the plan and so that's where some of the rub comes because do you just open it up where you have to get all your discovery to then prove your case without on the front end meeting your rule 11 requirements where you have done some discovery you've done some investigation and you then have enough information to support a plausible claim. [00:02:16] Speaker 03: Well, your honor, I would respond to that in two different ways. [00:02:19] Speaker 03: I think that as the complaint alleges, there's both direct and circumstantial evidence of a flawed fiduciary process in this case. [00:02:27] Speaker 03: The direct evidence includes fees we know the plan participants paid. [00:02:31] Speaker 03: which in this case were in the were more than five times the national median according to um the analysts and consultant studies cited in some of that is even for um elect uh issues with respect to standing about fees play into those particular plans though correct well your honor let me take this uh one piece at a time if i may so [00:02:56] Speaker 03: The standing question is sort of a two-step question in this case. [00:03:01] Speaker 03: There's no doubt that the individual plan participants, the named plaintiffs in this case, Mr. Wilcox and Mr. McGuire, invested in some of the imprudent funds and paid the excessive record-keeping fees described in the case. [00:03:15] Speaker 03: The only question is whether they have enough standing to seek relief on behalf of all of the funds in the plan [00:03:23] Speaker 03: or on behalf of the plan for all of the funds, regardless of whether they invested in them personally. [00:03:29] Speaker 03: And there, the case law is unanimous in our favor, in plaintiff's favor. [00:03:37] Speaker 03: You've got the Third Circuit's decision in Boley. [00:03:40] Speaker 03: I don't believe we cited it in the brief, but in preparing for this argument, I saw the Eighth Circuit's decision in Braden versus Walmart. [00:03:49] Speaker 03: both stand for the proposition that once a plaintiff establishes that they have standing to bring relief on behalf of the fund for at least or on behalf of the plan with respect to at least some of the challenge conduct as long as there's a conceptual link. [00:04:06] Speaker 04: They can see those cases say there needs to be more than a conceptual link, right? [00:04:09] Speaker 04: It says the same course of conduct. [00:04:12] Speaker 04: So for example, maybe those cases would apply if you invested in one of the plans and retail shares only were offered. [00:04:21] Speaker 04: And you said a prudent fiduciary would have secured institutional class shares for this and all the other funds that we also didn't invest in. [00:04:29] Speaker 04: Then maybe you could challenge that share class issue for funds you didn't invest in. [00:04:35] Speaker 04: That doesn't seem analogous to what's going on, right? [00:04:38] Speaker 04: You're not challenging. [00:04:39] Speaker 04: There isn't another retail class share that you invested in. [00:04:45] Speaker 03: Well, Your Honor, I would argue that when you're talking about an investment lineup of nearly 400 investment funds like you have here, you're going to have a plan that is replete with problems in the way the funds were selected, including that. [00:05:03] Speaker 03: And I would say that [00:05:05] Speaker 03: Turning back to the Braden versus Walmart decision, cases like this invariably rely on information at the pleading stage about what the participants can deduce from the publicly available documents. [00:05:20] Speaker 03: And here, I think the critical thing to consider is the Supreme Court's decision in Hughes versus Northwestern University [00:05:28] Speaker 03: And then the Seventh Circuit's consideration of that decision on remand. [00:05:32] Speaker 03: Because there you had a startlingly similar alignment of problems with the way the plan had been managed. [00:05:39] Speaker 03: You had hundreds of investment options. [00:05:42] Speaker 03: You had retail share class funds and a plan with billions of dollars in assets. [00:05:50] Speaker 03: And you had multiple record keepers when the national standard is to have a single record keeper. [00:05:57] Speaker 03: Having multiple record keepers just inflates the fees that participants have to pay. [00:06:02] Speaker 03: And when you apply that to this case, you see all of those same problems. [00:06:09] Speaker 03: The import of the Supreme Court's decision in Hughes is that when you have that alignment, when you have that set of problems, it's strongly suggestive of the fact that there was fiduciary imprudence and that that cost the participants significant amount of money. [00:06:26] Speaker 04: Just a little more specific. [00:06:27] Speaker 04: So on your record keeping claim, the basic idea is you should infer there was an imprudent process because the fees here were really high and fees for other plans were lower. [00:06:38] Speaker 04: I think one difficulty for you that the district court focused on is that your own complaint acknowledges in paragraph 64 that the record-keeping fees for plans differ on a whole host of factors. [00:06:52] Speaker 04: And then when you turn to comparing the fees here to the fees charged to other plans, you don't include any details about any of those factors. [00:07:02] Speaker 04: Can you sort of address that point that the district court made? [00:07:06] Speaker 03: I would say this, Your Honor. [00:07:07] Speaker 03: I think that the district court might have read too much into paragraph 64 of our complaint. [00:07:11] Speaker 03: These record keeping services are standardized nationwide. [00:07:15] Speaker 03: And as we alleged, I believe in paragraph 63 and paragraph 62, that the primary differentiator between record keeping service providers is price. [00:07:23] Speaker 03: That they provide precisely the same lineups of services for different plans. [00:07:30] Speaker 03: And that it is possible for plans to achieve [00:07:35] Speaker 03: the same level of services at a lower price. [00:07:38] Speaker 03: And that's really the core of our allegation there. [00:07:41] Speaker 02: I still don't get something. [00:07:43] Speaker 02: Your, pardon me, individual planners didn't invest in any of the funds that suffered from defects in that, the alleged defects in that fund, correct? [00:07:57] Speaker 03: No, Your Honor, that's not quite right, respectfully. [00:08:00] Speaker 03: The plaintiffs did both invest in funds that had unnecessary fees and that had been imprudently selected. [00:08:09] Speaker 03: There are a host of problems with the nearly 400 funds in the plan. [00:08:15] Speaker 02: What about the ones in which they invested? [00:08:19] Speaker 02: Yes. [00:08:19] Speaker 02: What are the problems? [00:08:20] Speaker 02: What do they invest in, and what is the problem with that investment? [00:08:24] Speaker 03: Well, the plaintiffs, for example, Plaintiff Wilcox invested in the TIAAA traditional annuity, which has the 10-year lockup provision and the 2.5% withdrawal fee. [00:08:38] Speaker 03: How is that affecting him now? [00:08:42] Speaker 03: What's the harm? [00:08:43] Speaker 03: Well, he can't take his money out without suffering these. [00:08:47] Speaker 03: He can't even move his money to a different investment option if he thinks that equities or bonds might be a better place. [00:08:53] Speaker 02: Never alleged money. [00:08:54] Speaker 02: There's no allegation that that's what he wants to do or that he's about to do that. [00:08:58] Speaker 02: If only he could. [00:09:00] Speaker 03: And nothing to that effect. [00:09:02] Speaker 03: That's correct, Your Honor, because we don't think it's frankly necessary to allege that in a particular plaintiff would do that, but for these withdrawal restrictions. [00:09:11] Speaker 02: Well, you might want to read the Lujan case again on eminence. [00:09:17] Speaker 02: The harm has to be either present or at least eminence, right? [00:09:21] Speaker 02: And when does this [00:09:26] Speaker 02: It's just to make sure I understand the restriction. [00:09:29] Speaker 02: If he wants to move his money today into a different fund, he cannot do that. [00:09:36] Speaker 02: Does that apply also at retirement time? [00:09:41] Speaker 03: At retirement time, he can take an immediate withdrawal, but then he pays the 2.5% surrender charge. [00:09:48] Speaker 02: OK. [00:09:48] Speaker 02: He's not at retirement time. [00:09:50] Speaker 03: He's not at retirement time. [00:09:52] Speaker 02: He just wants to move his money into a different fund. [00:09:55] Speaker 03: Well, I think the way to look at this, Your Honor, is the implication of defendants' argument that he should have made the request prior to filing the suit. [00:10:05] Speaker 02: No, I'm not suggesting that. [00:10:07] Speaker 02: If the rules prevented, that would have been futile to require him to make the request. [00:10:12] Speaker 02: But he's made no allegation that this is what he will do, if only he could. [00:10:17] Speaker 03: I think that whether he would want to do that today or whether he'd want to do that a year from now, it really makes no difference. [00:10:26] Speaker 03: Well, then you ought to read the case. [00:10:28] Speaker 02: It's got to be imminent. [00:10:29] Speaker 02: Well, I think that someday, that's the phrase, a someday plan or intention to do something is not sufficient. [00:10:36] Speaker 03: I think this is a very different circumstance because in the Lujan case, you had individuals who were concerned about potential access to the natural environment. [00:10:47] Speaker 03: This is this man's retirement savings, and it's locked up in this fund. [00:10:52] Speaker 03: And whether today, tomorrow, three years from now, he decides he wants to get that money back, he can't do that. [00:10:57] Speaker 02: There are hundreds of cases applying Lujan, literally hundreds of cases. [00:11:02] Speaker 02: You obviously are familiar with Lujan itself. [00:11:07] Speaker 02: Thank you. [00:11:07] Speaker 02: And that eminence requirement has been constant. [00:11:12] Speaker 02: There has to be an allegation of that sort. [00:11:15] Speaker 02: In fact, now we see these in the environmental cases that follow Luhan. [00:11:22] Speaker 02: The organizations, the Sierra Club and so on, they're always careful to point out that a person has been using the facility, wants to continue or would no longer be able to do so. [00:11:35] Speaker 02: Something that is concrete in the present or immediate and certain future. [00:11:40] Speaker 03: Well, I think that part of the difference here is that he needs to be able to make his decisions about where he wants to have his retirement savings, depending on changes to the market, that he may not be able to foresee today. [00:11:54] Speaker 03: He didn't even allege that. [00:11:56] Speaker 03: I think that is, we would consider that to be a [00:12:01] Speaker 03: a legal argument. [00:12:03] Speaker 03: I'd also note that retirement is sort of inevitable. [00:12:07] Speaker 03: This will come to pass. [00:12:08] Speaker 03: It will affect him sooner or later. [00:12:12] Speaker 02: Well, that certainly won't qualify as him. [00:12:15] Speaker 03: It's true. [00:12:18] Speaker 03: All right. [00:12:18] Speaker 03: Well, I mean, I think that it's a present ongoing violation of his rights to access his own retirement savings and invest it in a way that he sees fit without incurring this 10-year lockup charge. [00:12:32] Speaker 03: I'd also note that neither the defendants nor the district court cite a case ever in the nearly now 50 years since Arissa was adopted holding that a participant lacked standing to challenge a fund that they actually invested in. [00:12:49] Speaker 03: Here, I think that going back to a question that Judge Childs asked earlier, how do we infer a fiduciary process violation? [00:12:59] Speaker 03: Here, I think you have to look at the allegations in the complaint as a whole. [00:13:03] Speaker 03: Read the complaint holistically. [00:13:05] Speaker 03: And what you see is the record keeping administrative fees as much as five times higher than the national average or the national median for comparable plans. [00:13:18] Speaker 03: the multiple record keepers, the 400 investment options, the lower cost investor share class funds that were available, the TIA variable annuities, which had many layers of unnecessary fees, the traditional annuity with its 10-year lockup period and withdrawal fee, and the inaccurate information in the 5500s that were provided to plan participants. [00:13:47] Speaker 03: and to the Department of Labor. [00:13:49] Speaker 03: All of that, when you read those allegations together, suggests that the defendants were asleep at the switch and not performing their fiduciary applications. [00:14:03] Speaker 04: Thank you. [00:14:21] Speaker 01: You may see good morning. [00:14:23] Speaker 05: I'm Nicole sarsky for Georgetown. [00:14:25] Speaker 05: So two different district courts took a close look at the complaints here and determined that they failed both because of lack of standing on some of the claims and because of failure to state a claim and they gave plaintiffs the opportunity to replete essentially a third bite at the apple. [00:14:39] Speaker 05: And plaintiffs didn't take it, but instead came to this court. [00:14:43] Speaker 05: I think that the primary argument that plaintiffs are making here are not about the allegations in this complaint, but perhaps about what other courts have done. [00:14:49] Speaker 05: And so I just want to address that at the outset. [00:14:52] Speaker 05: Every court that has addressed claims like this have recognized that they are context specific, that the duty of prudence is context specific. [00:14:59] Speaker 05: It depends, as the statute says, under the circumstances then prevailing, under the plan then prevailing, what would a prudent person do? [00:15:06] Speaker 05: And the Supreme Court in the Hughes case reaffirmed that. [00:15:09] Speaker 05: It said, this is a context-specific inquiry. [00:15:12] Speaker 05: And so when you look at the claims in this case, there are different claims in other cases. [00:15:16] Speaker 05: There are different plans that issue in other cases. [00:15:19] Speaker 05: But the claims in this case failed to state a claim. [00:15:21] Speaker 05: And that's what the two district courts that did the hard work here determined. [00:15:25] Speaker 05: In particular, the court looked at the allegations that the particular counts in the complaint and said, there's not an overall cause of action under ERISA for overall plan mismanagement. [00:15:39] Speaker 05: There has to be a claim of breach of fiduciary duty. [00:15:42] Speaker 05: And what are the exact claims that are at issue here? [00:15:45] Speaker 05: And so the court started with the claim with respect to record-keeping fees and said, OK, the fundamental problem here is that there are allegations that the fees are too high. [00:15:53] Speaker 05: But how does that compare to the services that are offered? [00:15:56] Speaker 05: And so the court, with respect to the first complaint, the court in the first decision said, I've got three problems here. [00:16:03] Speaker 05: First, that there's not a comparison to plans that are like this one, that have services like this one. [00:16:09] Speaker 05: And second, in particular, an important feature of these plans is that they include TIAA annuities, which are long-term plans that are more expensive to record keep [00:16:19] Speaker 05: And there's no allegations that these other plans with lower fees have the TIA annuities. [00:16:25] Speaker 05: And then the court said there's a third problem, which is there's this claimed fee of $35, but no factual support for it. [00:16:32] Speaker 05: And so the court gave plaintiffs an opportunity to replete and then said, you know, none of those deficiencies were cured. [00:16:38] Speaker 05: And I think the court appropriately said, you know, we just need some benchmark here. [00:16:42] Speaker 05: And that's the same thing that many other courts of appeals have said. [00:16:45] Speaker 05: in, for example, the Matusik case in the Eighth Circuit, the Matney case in the Tenth Circuit, Common Spirit in the Sixth Circuit, the Albert case in the Seventh Circuit. [00:16:55] Speaker 01: And I guess what I would say is- Are those all motions to dismiss? [00:16:59] Speaker 01: Not some judgment? [00:17:00] Speaker 05: Yes, those were motions to dismiss. [00:17:04] Speaker 04: So, Council, what is your rule? [00:17:05] Speaker 04: So what level of detail about other plans should be required before a claim like this can proceed? [00:17:11] Speaker 05: So Twombly and Nick Ball says that there has to be something that pushes the allegations from possible to plausible. [00:17:16] Speaker 05: And in the context of record-keeping fees, what would push it from possible to plausible is some allegation about other plans that are like this plan that have the same level of services. [00:17:28] Speaker 05: And so if you look at what the plaintiffs in this case have alleged, they talked about five other university plans, but they don't even tell us the record-keeping fees for [00:17:37] Speaker 05: four of those five plans. [00:17:38] Speaker 05: So we don't know what the fees are. [00:17:39] Speaker 05: And then they don't tell us the services for the other plans. [00:17:42] Speaker 04: Are the services, maybe you could explain what you mean by services, but is that publicly available information? [00:17:51] Speaker 05: Yes. [00:17:52] Speaker 05: So I think the plaintiffs are talking here about record keeping services. [00:17:56] Speaker 05: I'll note that in the district court's opinion on page 31, the court, this isn't the second opinion, the court has some frustration because [00:18:03] Speaker 05: the plaintiffs are kind of inconsistent about what services and what fees they're talking about. [00:18:06] Speaker 05: But I understand them to be talking about record-keeping fees. [00:18:09] Speaker 05: And I think there is, obviously the plaintiffs had the information about the fees in their plans, because they're participants in the Georgetown plan. [00:18:16] Speaker 05: There was a significant amount of publicly available information about other plans. [00:18:20] Speaker 05: We gave an example in our brief about the Pepperdine plan. [00:18:23] Speaker 05: We gave other examples below. [00:18:24] Speaker 05: Now, the district court said, I'm not going to look at that stuff unless plaintiffs pleaded it, right? [00:18:29] Speaker 05: Because I have to just focus on the complaint. [00:18:30] Speaker 05: and focus on the allegations there and take them as true. [00:18:33] Speaker 05: But there is publicly available information that exists, especially because, as Your Honor know, there are a lot of other university cases that have been brought against other universities. [00:18:42] Speaker 05: And so a lot of information has come out in those cases. [00:18:46] Speaker 04: So in this case, they have the five examples of the other universities. [00:18:50] Speaker 04: If they alleged each of these pays only $35 for record-keeping services and each includes a mix of mutual funds and annuities like Georgetown's plan, is that enough? [00:19:02] Speaker 05: That's a lot better, probably it's enough. [00:19:03] Speaker 05: It would just be a question of does it have a TIA annuity like this plan? [00:19:07] Speaker 05: But I guess what I would say is we're not even close to that here. [00:19:10] Speaker 05: We're very far away from that as a line. [00:19:14] Speaker 05: I mean, here, they tell us for each of these that there was one record keeper, but they don't tell us what the funds were. [00:19:19] Speaker 05: And they don't say whether they were TIA annuities. [00:19:21] Speaker 05: Actually, it kind of suggests that at least one of them didn't have TIA annuities. [00:19:25] Speaker 05: So we're not saying that there aren't allegations that [00:19:29] Speaker 05: potentially could be pled that would be sufficient. [00:19:31] Speaker 05: Obviously, there are some cases that have gone forward, like in the Seventh Circuit, for example. [00:19:35] Speaker 05: We're saying that the allegations in this case are really sparse and just don't push over the line. [00:19:39] Speaker 04: I wanted to ask about that because the Seventh Circuit Hughes complaint seems quite similar. [00:19:45] Speaker 04: And I'm just wondering how you would have us distinguish that complaint or if you really just think that decision is wrong. [00:19:53] Speaker 05: I think it is distinguishable and the answers for why it's distinguishable are in the Hughes decision itself. [00:19:57] Speaker 05: The seventh circuit there is very careful in parsing through the allegations in the complaint and the ones that it focuses on that are not present here are first of all that there were other record keepers that were equally capable of providing the same services. [00:20:12] Speaker 05: The second was an allegation that Northwestern had not solicited bids or sought rebates. [00:20:17] Speaker 05: And then the third, which the Seventh Circuit found very important, is that there was an allegation that Northwestern actually had consolidated and reduced the fees, which showed that it was doable in those circumstances. [00:20:27] Speaker 05: And I'd urge you to look at the Seventh Circuit's opinion, because it goes very specifically through the allegations, and it makes very clear that this is a context-specific decision. [00:20:36] Speaker 05: And the other thing it does, which we find, I think, very helpful, is that it distinguishes between that case and a prior case in Albert. [00:20:42] Speaker 05: There's this case Albert versus Oshkosh, which was also a record-keeping [00:20:46] Speaker 05: be quite case in the seventh circuit and the seventh circuit explains like here's why the allegations in this case are sufficient, but the allegations in this other case aren't sufficient and so. [00:20:57] Speaker 04: For the third reason you gave, I'm quite sure that if one of your clients made a change, you would ask us not to use that as evidence of imprudence in sort of a hindsight way. [00:21:08] Speaker 04: And on the first point, you're right. [00:21:10] Speaker 04: This complaint doesn't use the words equally capable. [00:21:13] Speaker 04: But paragraph 62 says, there are numerous record keepers in the marketplace capable of providing a high level of service to large defined contribution plans like plans [00:21:24] Speaker 04: To me that seems very generic, but it also seems that's another way of saying there's other equally capable record keepers out there. [00:21:32] Speaker 04: So do you disagree with that? [00:21:34] Speaker 05: Well, I don't think it's as equally capable. [00:21:36] Speaker 05: I think it is, as you say, pretty generic. [00:21:38] Speaker 05: But I guess if I were looking at the allegations in this complaint, as opposed to, for example, the Hughes complaint, [00:21:43] Speaker 05: There are pages and pages about record keeping and the ability, the kind of equally capable and ability of others to record keep. [00:21:50] Speaker 05: Whereas we're just talking about one paragraph in this complaint. [00:21:53] Speaker 05: So if you just look like at the sheer amount of allegations kind of on this point, they are much more detailed in the Hughes case. [00:21:59] Speaker 05: And I do think at the pleading stage, an allegation, this third allegation that you spoke to, this allegation that it could be done. [00:22:06] Speaker 05: is something that raises this factor of plausibility. [00:22:10] Speaker 05: Now, do I think at trial that that would establish imprudence? [00:22:13] Speaker 05: No, but where we are now is that there needs to be something that pushes into plausibility. [00:22:17] Speaker 05: And I guess the point I would make about kind of the seven circuit cases and perhaps some of the other cases is that there is the same legal rule that is being applied and it's just different outcomes in different cases because of different allegations. [00:22:29] Speaker 05: And the allegations here are just sparse. [00:22:31] Speaker 05: They're just very sparse about what's saying what Georgetown allegedly did wrong. [00:22:36] Speaker 05: And if you look at this kind of question, you asked, Your Honor, about what is the legal rule that we would apply. [00:22:42] Speaker 05: This legal rule that you need some similar plan, comparator, benchmark, whatever you call it. [00:22:48] Speaker 05: That is throughout the courts of appeals. [00:22:50] Speaker 05: That's in the Sixth Circuit in common spirit. [00:22:53] Speaker 05: That's in the Seventh Circuit in the Albert case. [00:22:56] Speaker 05: And in the Hughes case, I think, also says it. [00:22:59] Speaker 05: It's in the Eighth Circuit. [00:23:00] Speaker 05: It's in the Tenth Circuit. [00:23:01] Speaker 05: The Third Circuit said it in suede. [00:23:03] Speaker 05: We think the legal rule is the same. [00:23:04] Speaker 05: It's just the application of that legal rule to this particular case. [00:23:09] Speaker 05: I guess the other thing I'd say is that there are three different counts here. [00:23:14] Speaker 05: And while plaintiffs, I think, sometimes jumble them all together and say, oh, courts have allowed these to proceed, I think where some courts have allowed them to go forward on the record keeping fees is on the record keeping fees. [00:23:24] Speaker 05: But with respect to these other counts, there are not cases that allowed them to have gone forward. [00:23:30] Speaker 05: For example, on their too many options claim, like there are too many options, that's been routinely rejected at the motion to dismiss stage, including by the Hughes court in the Northwestern case on remand. [00:23:43] Speaker 05: NYU, Yale, the Northwestern case, all rejected because of no pleading of injury as a result of that. [00:23:50] Speaker 05: And that's something the district court pointed out here and the plaintiffs just didn't have a response. [00:23:55] Speaker 05: I think the last thing I mentioned is the court had some discussion as to potential issues with standing. [00:24:00] Speaker 05: We do think that there's a lack of standing just on two particular claims, the Vanguard share classes, because there's no investment in those claims for the reasons you stated, Judge Garcia, and then with respect to the TIAA annuity withdrawal restrictions, essentially for the reasons that you stated, Judge Ginsburg. [00:24:17] Speaker 05: At the end of the day, what I'd say is, you know, these these courts had this these two district courts had this complaint in front of it. [00:24:23] Speaker 05: They did their absolute best of working their way through this complaint and said, you know, in the first time around, here's what you need to allege plaintiffs and then came back and the plaintiffs didn't do it. [00:24:32] Speaker 05: And then the plaintiffs didn't want their third chance to do it. [00:24:35] Speaker 05: And I think, you know, it's been six years with this complaint and we would urge this court to affirm. [00:24:49] Speaker 01: Thank you. [00:24:49] Speaker 01: You have two minutes for Roberto. [00:24:52] Speaker 03: Thank you, Your Honor. [00:24:55] Speaker 03: I'd just like to respond very briefly to two points my distinguished opposing counsel made. [00:25:01] Speaker 03: First on the question of too many investment options. [00:25:03] Speaker 03: I respectfully suggest that defendants get the holding in Hughes II backwards. [00:25:10] Speaker 03: In Hughes II, the court noted that offering a wide variety of investment options was indicative of prudence, but that the Supreme Court and the Seventh Circuit in Hughes, and the remand in Hughes, both [00:25:28] Speaker 03: reversed the motion to dismiss because too many investment options had been offered. [00:25:33] Speaker 03: Both the Seventh Circuit and the Supreme Court cited that specifically as evidence of imprudence. [00:25:42] Speaker 03: And as far as a benchmark about when do you go from having a wide range of investment options when you have too many, the Seventh Circuit on remand and Hughes noted [00:25:52] Speaker 03: favor believe that Northwestern had amended their plan to reduce to something like 35 investment options from well below the 400 or so that they and the Supreme Court found had been too many. [00:26:06] Speaker 03: The other point is about a benchmark and what's in the complaint. [00:26:15] Speaker 03: Defense counsel argued that [00:26:19] Speaker 03: there's information in the public about what the record keeping fees were. [00:26:23] Speaker 03: And that is true. [00:26:24] Speaker 03: There is information in the public about what the record keeping fees were. [00:26:29] Speaker 03: But there's a claim here that's well supported by the evidence cited in the complaint that the information provided to participants was incomplete and, in some ways, inaccurate. [00:26:41] Speaker 03: So we have based the complaint on the information that's out there. [00:26:44] Speaker 03: But we also note that we have grave concerns about that information. [00:26:49] Speaker 03: I think that if you look at the comparison Seventh Circuit made in Hughes between that case and Oshkosh, it's clear that this court should reverse applying the same rationale here. [00:27:01] Speaker 03: All of the allegations that the Seventh Circuit said were present in Hughes are present in the first amended complaint in this case. [00:27:09] Speaker 03: We have, I can assure you, pages of allegations in the complaint about what record keeping services are, what the appropriate price for that would be. [00:27:18] Speaker 03: We do allege, I think the distinction is whether equally capable of providing the high level of services. [00:27:25] Speaker 03: The phrase we used in the complaint was capable of providing the high level services. [00:27:31] Speaker 03: And with that, thank the court for its time. [00:27:37] Speaker 03: Thank you very much. [00:27:39] Speaker 01: The case is submitted.