William Lee v. Verizon Communications, Inc.

Case: 14-10553 Document: 00513680657 Page: 1 Date Filed: 09/15/2016

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

September 15, 2016

No. 14-10553

Lyle W. Cayce

Clerk

WILLIAM LEE, Individually, and as Representatives of plan participants

and plan beneficiaries of the Verizon Management Pension Plan; JOANNE

MCPARTLIN, Individually, and as Representatives of plan participants and

plan beneficiaries of the Verizon Management Pension Plan; EDWARD

PUNDT,

Plaintiffs - Appellants

v.

VERIZON COMMUNICATIONS, INCORPORATED; VERIZON

CORPORATE SERVICES GROUP, INCORPORATED; VERIZON

EMPLOYEE BENEFITS COMMITTEE; VERIZON INVESTMENT

MANAGEMENT CORPORATION; VERIZON MANAGEMENT PENSION

PLAN,

Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Texas

ON REMAND FROM THE UNITED STATES SUPREME COURT

Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.

FORTUNATO P. BENAVIDES, Circuit Judge:

This court previously affirmed the dismissal of Plaintiffs-Appellants’

claims against Defendants-Appellees for violations of The Employee

Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001–1461 (“ERISA”).

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See Lee v. Verizon Commc’ns, Inc., 623 F. App’x 132, 134 (5th Cir. 2015)

(unpublished). Our affirmance was driven, in part, by the determination that

Plaintiff-Appellant Edward Pundt (“Pundt”), representative of one of the two

certified classes of Verizon pension-plan participants, lacked Article III

standing to sue for purported fiduciary misconduct pursuant to ERISA §

409(a), 29 U.S.C. § 1109(a). Id. at 147. Specifically, we held that “standing for

defined-benefit plan participants requires imminent risk of default by the plan,

such that the participant's benefits are adversely affected,” and we noted that

Pundt failed to “allege the realization of risks which would create a likelihood

of direct injury to participants’ benefits” in this case. Id. at 148–49. We thus

concluded that any direct harm to Pundt was “too speculative to support

standing.” Id. at 149. We also rejected Pundt’s argument that “he directly

suffered constitutionally cognizable injury through invasion of his . . . statutory

rights [under ERISA] to proper [p]lan management,” concluding that standing

based on invasion of a statutory right must still “aris[e] from de facto injury,

which is not alleged by a breach of fiduciary duty.” Id.

Pundt filed a petition for writ of certiorari in the United States Supreme

Court. The Supreme Court subsequently decided Spokeo, Inc. v. Robins, 136 S.

Ct. 1540, 194 L. Ed. 2d 635 (2016), which clarified the relationship between

concrete harm and statutory violations for purposes of assessing Article III

standing. After deciding Spokeo, the Supreme Court granted Pundt’s petition

for writ of certiorari, vacated our judgment in this case, and remanded the case

to this court for further consideration in light of Spokeo. Pundt v. Verizon

Commc’ns, Inc., No. 15-785, 2016 WL 2945235, at *1 (May 23, 2016). We

requested and received supplemental briefing from both sides regarding the

impact of Spokeo.

There is only one narrow question for us to consider on remand: namely,

whether Spokeo affects our previous conclusion that a plaintiff’s bare

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allegation of incursion on the purported statutory right to “proper plan

management” under ERISA is insufficient to meet the injury-in-fact prong of

Article III standing. We believe this conclusion remains as valid in light of

Spokeo as it was before Spokeo was decided.

The Supreme Court reaffirmed in Spokeo that violation of a procedural

right granted by statute may in some circumstances be a sufficiently concrete,

albeit intangible, harm to constitute injury-in-fact without an allegation of

“any additional harm beyond the one Congress has identified.” 136 S. Ct. at

1549. However, the Supreme Court also took care to note that “Congress’[s]

role in identifying and elevating intangible harms does not mean that a

plaintiff automatically satisfies the injury-in-fact requirement whenever a

statute grants a person a statutory right and purports to authorize that person

to sue to vindicate that right.” Id. Rather, “Article III standing requires a

concrete injury even in the context of a statutory violation.” Id. Put differently,

the deprivation of a right created by statute must be accompanied by “some

concrete interest that is affected by the deprivation.” Id. (quoting Summers v.

Earth Island Inst., 555 U.S. 488, 496 (2009)). Thus, Spokeo recognizes that at

minimum, a “concrete” intangible injury based on a statutory violation must

constitute a “risk of real harm” to the plaintiff. Id.

Spokeo maps surprisingly well onto the present case: in Spokeo, the

Supreme Court held that a bare allegation of a Fair Credit Reporting Act

violation based on inaccurate reporting of consumer information was

insufficient to establish injury-in-fact, as “not all inaccuracies cause harm or

present any material risk of harm.” Id. at 1550. In the same way, we recognized

in this case that Pundt’s allegation of an “invasion of [a] statutory right[] to

proper [p]lan management” under ERISA was not alone sufficient to create

standing where there was no allegation of a real risk that Pundt’s defined-

benefit-plan payments would be affected. In short, because Pundt’s “concrete

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interest” in the plan—his right to payment—was not alleged to be at risk from

the purported statutory deprivation, Pundt had not suffered an injury that was

sufficiently “concrete” to confer standing. We declined to hold that the mere

allegation of fiduciary misconduct in violation of ERISA, divorced from any

allegation of risk to defined-benefit-plan participants’ actual benefits, could

constitute de facto injury sufficient to establish constitutional standing.

Pundt argues on remand that Spokeo requires consideration of historical

practice in determining whether an intangible harm constitutes injury-in-fact,

Id. at 1549, and thus this court should find that Pundt has standing based on

common-law trust principles. However, Spokeo’s recognition of history as an

important consideration in Article III standing analysis is not new. Indeed, the

Supreme Court has “often said that history and tradition offer a meaningful

guide to the types of cases that Article III empowers federal courts to consider.”

Sprint Commc’ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 274 (2008). In

other words, the Supreme Court’s view that history can provide a useful metric

for identifying intangible harms was “often” invoked prior to Spokeo, yet Pundt

failed to raise his trust-law theory in the district court and did not press it in

his opening brief to this court beyond making a passing reference to “historical

authorities.” Spokeo thus gives us no occasion to revisit an issue that Pundt

did not adequately raise and that Spokeo did not affect, and we reject Pundt’s

statutory-injury argument for the same reason we identified in our original

opinion: a de facto injury is not alleged by reference to fiduciary misconduct

under ERISA alone. See David v. Alphin, 704 F.3d 327, 336–37 (4th Cir. 2013)

(rejecting trust-law argument and concluding that defined-benefit-plan

participants lacked Article III standing to sue based solely on deprivation of

statutory right).

Pundt also contends that the judgment of Congress supports finding

standing in this case, as Congress’s expressed concern in enacting ERISA was

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to protect “the interests of participants in employee benefit plans . . . .” 29

U.S.C. § 1001(b). As we explained in our original opinion, however, a defined-

benefit-plan participant’s “interest[]” in the plan is his “nonforfeitable right

only to” the “defined level of benefits” established under the plan. Hughes

Aircraft Co. v. Jacobson, 525 U.S. 432, 440 (1999). We once again decline to

“conflat[e] the concepts of statutory and constitutional standing” by holding

that incursion on a statutorily-conferred interest in “proper plan management”

is sufficient in itself to establish Article III standing. Lee, 623 F. App’x at 149.

A bare allegation of improper defined-benefit-plan management under ERISA,

without concomitant allegations that any defined benefits are even potentially

at risk, does not meet the dictates of Article III; concluding otherwise would

vitiate the Supreme Court’s explicit pronouncement that “Article III standing

requires a concrete injury even in the context of a statutory violation.” Spokeo,

at 1549; see also Kendall v. Emps. Ret. Plan of Avon Prods., 561 F.3d 112, 120

(2d Cir. 2009) (“The statute does impose a general fiduciary duty to comply

with ERISA, but it does not confer a right to every plan participant to sue the

plan fiduciary for alleged ERISA violations without a showing that they were

injured by the alleged breach of the duty.”), abrogated in part on other grounds

as recognized in Am. Psychiatric Ass’n v. Anthem Health Plans, Inc., 821 F.3d

352, 359 (2d Cir. 2016); Fletcher v. Convergex Grp. LLC, __F. Supp. 3d__, No.

13-CV-9150, 2016 WL 690889, at *3 (S.D.N.Y Feb. 17, 2016) (noting that

Kendall “firmly rejected [the] argument that defendants’ violation of their

statutory duties under ERISA is in and of itself an injury in fact to [the

plaintiff]”).

Having addressed the only issue that is even arguably implicated by

Spokeo, we need not consider the remaining arguments raised by Pundt on

remand. To the extent Pundt advances a distinct theory of standing based on

the pursuit of injunctive relief, that argument has been waived. See United

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States v. McRae, 795 F.3d 471, 479 (5th Cir. 2015) (“[A]n argument not raised

at the district court or in the appellant’s opening brief is waived . . . .”). We

accordingly reinstate and publish our prior opinion, which we reproduce below.

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*****

Before the court is a retirement-plan dispute brought by current and

former participants and beneficiaries of Verizon’s pension plan (“the Plan”).

Plaintiffs, representing two certified classes, allege violations under the

Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1461

(“ERISA”), by the pension plan sponsors and administrators as a result of a

plan amendment and subsequent annuity purchase in December of 2012. The

certified classes are distinguished by the annuity transaction, which

transferred benefit obligations for some Plan beneficiaries to a group insurance

annuity, resulting in the following classes: the Transferee Class, represented

by Plaintiffs William Lee and Joanne McPartlin (collectively, “Transferee

Class representatives”), comprising Plan participants whose retirement-

benefit obligations were transferred to the annuity; and the Non-Transferee

Class, represented by Plaintiff Edward Pundt (“Pundt”), comprising Plan

participants whose retirement-benefit obligations remained with the Plan.

Plaintiffs appeal the district court’s dismissal of the claims of the Transferee

Class for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6),

as well as the dismissal of the sole claim of the Non-Transferee Class under

Rule 12(b)(1) for lack of constitutional standing.

We affirm.

I. BACKGROUND

A. Factual History

Unless otherwise noted, the following factual history is based on

Appellants’ allegations in the second amended complaint (“SAC”), the live

pleading at the time of the district court’s dismissal order.

In August of 2012, Verizon Investment Management Corp. (“VIMCO”), a

wholly-owned subsidiary of Verizon Communications Inc. (“Verizon”), retained

Fiduciary Counselors, Inc. (“FCI or Independent Fiduciary”) as an independent

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fiduciary to “represent the participants and beneficiaries in connection with

the selection of the insurance company (or insurance companies) to provide an

annuity” and to negotiate “the terms of the annuity contract or contracts.” On

or about September 8, 2012, over a month prior to the date of the amendment,

the Independent Fiduciary provided a written determination of the

transaction’s compliance with ERISA.

In October of 2012, Verizon’s board of directors amended the Plan terms

to provide for an annuity transaction, effective December 7, 2012. The

amendment applied to Plan participants who were already receiving benefit

payments as of January 1, 2010; this effectively divided the Plan participants

into the 41,000 members of the Transferee Class, and the roughly 50,000

members of the Non-Transferee Class. Regarding payments to those retirees,

the amendment directed the Plan to purchase an annuity meeting the

following requirements: (1) guaranteeing payment of pension benefits for all

transferred Plan participants; (2) maintaining benefit payments in the same

form that was in effect at the time of the annuity transaction; and (3) relieving

the Plan of any benefit obligation for any transferred Plan participants. 1

Also in October of 2012, Verizon entered into a definitive purchase

agreement with Prudential, VIMCO, and FCI. Under the terms of the

1The relevant provisions of the Amendment are as follows:

(i) The annuity contract shall fully guarantee and pay each pension

benefit earned by a “Designated Participant.”

(ii) The annuity contract shall provide for the continued payment of the

Designated Participant’s pension benefit . . . in the same form that

was in effect under the Plan immediately before the annuity

purchase . . . .

....

(iv) After the annuity purchase . . . , the Plan shall have no further

obligation to make any payment with respect to any pension benefit of

a Designated Participant . . . . ROA.119–20.

The term “Designated Participant” generally describes members of the Transferee

Class, as it includes Plan participants who were receiving benefits at the time of the

annuity transaction, and who had retired before January 1, 2010.

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agreement, Verizon would purchase a single-premium, group annuity contract

from Prudential for $8.4 billion, in settlement of $7.4 billion in Plan benefit

obligations. Plan fiduciaries notified members of the Transferee Class about

the annuity transaction.

Shortly after Plaintiffs’ motion for preliminary injunction against the

annuity transaction was denied, the annuity parties consummated the annuity

transaction on December 10, 2012.

B. Procedural History

The Transferee Class representatives filed their original complaint on

November 27, 2012; the complaint was immediately followed by their

application for a temporary restraining order. 2 In an order dated December 7,

2012 (“Lee I”), the district court denied the application. 3 On January 25, 2013,

the Transferee Class representatives filed their first amended complaint, to

which Plaintiff Pundt joined, and the district court certified the classes on

March 28, 2013.

In an order dated June 24, 2013 (“Lee II”), the district court granted

Defendants’ motion to dismiss the Transferee Class’s claims for failure to state

a claim under Rule 12(b)(6), and the Non-Transferee Class’s claim under Rule

12(b)(1) for lack of constitutional standing. 4 The court also granted Plaintiffs

leave to amend. 5

Plaintiffs filed the SAC on July 12, 2013. 6 In an order dated April 11,

2014 (“Lee III”), the district court dismissed the SAC in its entirety for failing

2 At the request of the Transferee Class representatives, the application for temporary

restraining order was converted into a motion for a preliminary injunction.

3 Lee v. Verizon Commc’ns Inc., 2012 WL 6089041, at *1 (N.D. Tex. Dec. 7, 2012) (“Lee

I”).

4 Lee v. Verizon Commc’ns Inc., 954 F.Supp.2d 486, 499 (N.D. Tex. June 24, 2013) (“Lee

II”).

5 Id.

6 ROA.1372-1422 (“SAC”).

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to cure the deficiencies identified in Lee II. 7 Specifically, the district court

reasoned that, as amended, the first and third claims of the Transferee Class,

as well as the claim of the Non-Transferee Class, warranted dismissal for the

reasons stated in Lee II; 8 the district court then more fully addressed the

amended allegations regarding the Transferee Class’s second claim before

dismissing that claim as well. 9

II. DISCUSSION

A. Standard of Review

This court reviews de novo a district court’s dismissal for failure to state

a claim under Federal Rule of Civil Procedure 12(b)(6). 10 In doing so, the court

applies the familiar Twombly-plausibility standard, according to which “we

must accept as true all well-pleaded facts.” 11 “To survive a Rule 12(b)(6) motion

to dismiss, a complaint does not need detailed factual allegations, but must

provide the plaintiff’s grounds for entitlement to relief—including factual

allegations that when assumed to be true raise a right to relief above the

speculative level.” 12

The court similarly evaluates the Rule-12(b)(1) dismissal of the claim by

the Non-Transferee Class for lack of standing. As with a 12(b)(6) dismissal,

this court reviews de novo a district court’s dismissal under 12(b)(1). 13 As a

7 Lee v. Verizon Commc’ns Inc., 2014 WL 1407416, at *9 (N.D. Tex. Apr. 11, 2014) (“Lee

III”).

8See id. at *2.

9See id. at *2–9.

10 See Rosenblatt v. United Way of Greater Houston, 607 F.3d 413, 417 (5th Cir. 2010)

(citing Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007)).

11 Id. (citing Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996)).

12 Id. (internal quotation marks omitted).

13 See Ballew v. Continental Airlines, Inc., 668 F.3d 777, 781 (5th Cir. 2012) (citing

Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001)).

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matter of subject matter jurisdiction, 14 standing under ERISA § 502(a) is

subject to challenge through Rule 12(b)(1). 15 Where, as here, the movant

mounts a “facial attack” on jurisdiction based only on the allegations in the

complaint, the court simply considers “the sufficiency of the allegations in the

complaint because they are presumed to be true.” 16

B. Duty to Disclose under ERISA § 102(b), 29 U.S.C. § 1022(b)

The Transferee Class first asserts that that the Plan fiduciaries breached

their fiduciary duties under ERISA by failing to disclose the annuity

transaction’s effect on payor responsibilities and participant enrollment in the

Plan. At the outset, the following is undisputed: (1) the Plan provided

Summary Plan Descriptions (“SPDs”); (2) the Plan fiduciaries promptly

disclosed the amendment shortly after its adoption; and (3) the annuity

transaction did not change the form or amount of benefits. However, Plaintiffs

argue that the pre-amendment SPDs were insufficient because they did not

give notice of the annuity transaction.

ERISA § 102(b) requires an SPD to describe “circumstances which may

result in disqualification, ineligibility, or denial or loss of benefits.” 17 In turn,

the pertinent regulation promulgated by the Department of Labor (“DOL”)

requires an SPD to describe “circumstances which may result in . . . loss[] . . .

of any benefits that a participant or beneficiary might otherwise reasonably

expect the plan to provide.” 18 Appellants first argue that the Verizon Employee

Benefits Committee (“VEBC”), a Verizon plan fiduciary, failed to provide

14 See Cobb v. Cent. States, 461 F.3d 632, 635 (5th Cir. 2006); see also Hermann Hosp.

v. MEBA Med. & Benefits Plan, 845 F.2d 1286, 1288–89 (5th Cir.1988) (considering ERISA

standing as a question of subject matter jurisdiction).

15 See Fed. R. Civ. P. 12(b)(1).

16 Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981).

17 29 U.S.C. § 1022(b) (2012).

18 29 C.F.R. § 2520.102-3(l) (2015).

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compliant SPDs by not disclosing the possibility that benefit obligations could

be transferred to an insurance-company annuity absent a plan termination or

spin-off/merger. As explained below, this argument lacks merit in light of this

court’s precedent, which holds that ERISA does not require SPDs to describe

future terms, and statutory language requiring only retrospective notice of

plan amendments.

First, as Appellees note, we have previously interpreted ERISA

disclosure requirements as only extending to current aspects of the plan, and

to the exclusion of potential changes which are contingent upon a plan

amendment. In Wise v. El Paso Natural Gas Co., 19 this court held that “Section

1022(b) relates to an individual employee's eligibility under then existing,

current terms of the Plan and not to the possibility that those terms might

later be changed, as ERISA undeniably permits.” 20 The decisions cited by

Appellants do not vitiate this principle, as both decisions addressed the

disclosure of existing plan terms, not potential, amendment-contingent

terms. 21 In this case, prior to the October-2012 amendment directing the

annuity purchase, the Plan only allowed for the transfer of benefit obligations

through the Plan’s termination or merger into another pension plan; SPDs

issued prior to the amendment were only required to address those

circumstances.

Further, it is undisputed that the Plan fiduciaries provided notice

shortly after the amendment’s adoption, well within the time limits imposed

for notice of plan amendment. ERISA only requires that administrators

provide a summary description of any material modification or change “not

19 986 F.2d 929 (5th Cir. 1993).

20 Id. at 935.

21 See Koehler v. Aetna Health Inc., 683 F.3d 182, 189 (5th Cir. 2012); Layaou v. Xerox

Corp. 238 F.3d 205, 211 (2d Cir. 2001)).

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later than 210 days after the end of the plan year in which the change is

adopted.” 22 In keeping with this language, we previously held in Martinez v.

Schlumberger, Ltd. 23 that, within the context of ERISA disclosure

requirements, there is no employer duty “to affirmatively disclose whether it

is considering amending its benefit plan.” 24 Appellees also correctly note that

the pre-amendment SPDs advised participants of Verizon’s reservation of the

right to amend the Plan, and the possibility that an amendment might affect

their rights under the Plan.

As a second basis for violation, the Transferee Class alleges that the pre-

amendment SPDs failed to advise of the possible “loss of benefits.” The district

court rejected this claim because the Transferee Class failed to allege a change

in the amount of benefits they would receive. On appeal, the Transferee Class

acknowledges that the amount of benefits remains unchanged under the terms

of the annuity contract. However, the Transferee Class also asserts that the

phrase “loss of benefits” encompasses federal protections under ERISA and the

Pension Benefit Guaranty Corporation (“PBGC”). 25 Appellants, however,

provide no authority supporting the inclusion of ERISA and PBGC protections

as “benefits” within the meaning of § 102. Countenancing against Appellants’

argument, this interpretation of “benefits” is more expansive than the ERISA

regulation governing the purchase of annuities by plan fiduciaries

(“Annuitization Regulation”), which requires that such transactions guarantee

a participant’s “entire benefit rights.” 26 As discussed further below, the annuity

agreement does not guarantee ERISA and PBGC protections, but Appellants

22 29 U.S.C. § 1024(b)(1)(B).

23 338 F.3d 407 (5th Cir. 2003).

24 Id. at 428.

25 Id.

26 29 C.F.R. § 2510.3-3(d)(2)(ii) (2015).

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do not dispute that the transaction complies with the Annuitization

Regulation’s guarantee requirement.

Accordingly, we find no error in the district court’s dismissal of the

Transferee Class’s claim under ERISA § 102.

C. Fiduciary Duties under ERISA § 404(a)(1), 29 U.S.C. § 1104

The Transferee Class asserts several breaches of fiduciary duties under

ERISA § 404(a)(1)(A), which requires that plan fiduciaries use plan assets “for

the exclusive purpose of[] . . . providing benefits” and “defraying reasonable

expenses of administering the plan.” 27 In doing so, a fiduciary must act “solely

in the interest of [plan] participants,” 28 and employ the “care, skill, prudence,

and diligence” of a “prudent man” acting in like circumstances. 29 Section 8.5 of

the Plan mirrors that of § 404, requiring that assets of the Plan be used “for

the exclusive benefit of [participants and beneficiaries] and shall be used to

provide benefits under the Plan and to pay the reasonable expenses of

administering the Plan and the Pension Fund, except to the extent that such

expenses are paid by [Verizon].” 30

Fiduciary vs. Non-Fiduciary Functions. First, it behooves the analysis to

distinguish between fiduciary and non-fiduciary roles, a function-centric

consideration “that is aided by the common law of trusts which serves as

ERISA’s backdrop.” 31 Further, though an employer may, at different times,

wear “hats” as both a sponsor and administrator, 32 “fiduciary duties under

ERISA are implicated only when it acts in the latter capacity.” 33 Thus, where

27 29 U.S.C. § 1104(a)(1)(A) (2012).

28 Id. § 1104(a)(1).

29 Id. § 1104(a)(1)(B).

30 ROA.83.

31 Beck v. PACE Intern. Union, 551 U.S. 96, 101 (2007).

32 See Pegram v. Herdrich, 530 U.S. 211, 225–26 (2000).

33 Beck, 551 U.S. at 101.

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a claim alleges breach of an ERISA fiduciary duty, the threshold question is

whether the “person employed to provide services under a plan . . . was acting

as a fiduciary (that is, was performing a fiduciary function) when taking the

action subject to complaint.” 34 In making this threshold evaluation, “[a] person

is a fiduciary only to the extent he has or exercises specified authority,

discretion, or control over a plan or its assets.” 35

In contrast, we have previously held that actions by a plan sponsor “to

modify, amend or terminate the plan” are outside the scope of fiduciary duties;

“such decisions are those of a trust settlor, not a fiduciary.” 36 In Hughes

Aircraft Co. v. Jacobson, the Supreme Court noted that, “[i]n general, an

employer’s decision to amend a pension plan concerns the composition or

design of the plan itself and does not implicate the employer’s fiduciary duties

which consist of such actions as the administration of the plan’s assets,” as well

as decisions “regarding the form or structure of the Plan . . . .” 37 The Jacobson

Court emphatically concluded that “without exception, plan sponsors who alter

the terms of a plan do not fall into the category of fiduciaries.” 38

Courts have drawn a distinction between decisions to alter a plan, and

the implementation of those decisions. For example, in Beck v. PACE Intern.

Union, the Court noted the distinction between whether to terminate a plan

through an annuity purchase, and the fiduciary obligation in its selection of an

34 Pegram, 530 U.S. at 226.

35 Kirschbaum v. Reliant Energy, Inc., 526 F.3d 243, 251 (5th Cir. 2008) (internal

quotation marks omitted); see also 29 U.S.C. § 1002(21)(A) (2012) (providing that “[a] person

is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority

or discretionary control respecting management of such plan or exercises any authority or

control respecting management or disposition of its assets[] . . . or (iii) he has any

discretionary authority or discretionary responsibility in the administration of such plan.”).

36 Id. at 251.

37 Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 444 (1999).

38 Id. at 444-45.

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annuity provider. 39 Appellees rely in part upon Beck to support two sponsor-

fiduciary distinctions, distinctions which are disputed by Appellants but which

affect multiple issues.

Beck involved an employer’s filling dual roles as plan sponsor and

administrator, and the Court considered the question of whether a plan

sponsor’s choice of plan termination through the purchase an annuity, rather

than merger with another pension plan, constituted a decision as a plan

sponsor or fiduciary. 40 The Beck Court first noted the general principle that an

employer’s decisions regarding the form or structure of a plan are immune from

ERISA’s fiduciary obligations, and that these decisions include termination

and (in most cases) merger. 41 Recognizing that ERISA imposed fiduciary

obligations on the method of termination, e.g. the fiduciary obligation on

selecting an annuity provider, the Beck Court acknowledged that the choice

between possible methods of termination, i.e. annuitization or merger, created

a plausible basis to consider merger as a fiduciary action within that context. 42

Ultimately, Beck did not reach ERISA’s fiduciary application to merger, as the

Court determined merger was not a permissible method of termination under

ERISA. 43

Appellees first cite Beck in support of the proposition that the decision to

enter into an annuity is a sponsor decision immune from ERISA’s fiduciary

obligations. In turn, Appellants argue that Beck is inapposite as it analyzed a

plan termination, rather than an ongoing plan. This distinction does not vitiate

Beck’s application to the instant circumstances. The Beck Court broadly

described decisions regarding the form and structure of a plan as those of a

39 551 U.S. 96, 101–02 (2007).

40 See id.

41 See id.

42 See id. at 102.

43 Id. at 110.

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plan sponsor, and its primary focus on one type of sponsor decision does not

undercut the application to other sponsor decisions regarding a plan’s form and

structure. Accordingly, we hold the annuity amendment was a sponsor

function of plan design, authorized under ERISA through the Annuitization

Regulation.

Appellees also cite Beck for the principle that an employer’s decision to

maintain or remove pension liabilities is a design decision and settlor function.

In deciding that merger was not a permissible form of termination, the Beck

Court compared the effect of annuity purchases and merger, emphasizing that

the latter “represents a continuation rather than a cessation of the ERISA

regime.” 44 Despite discussing the annuity purchase’s effect of “formally

sever[ing] the applicability of ERISA to plan assets and employer obligations”

(including the employer’s release from ERISA’s requirement to make PBGC

premium payments), the Beck Court did not impute fiduciary aspects to the

sponsor’s decision to sever ERISA’s applicability. 45 Consistent with Beck,

therefore, we consider the decision to transfer pension assets outside ERISA

coverage as a sponsor decision immune from fiduciary obligations.

Also relating to the sponsor-fiduciary distinction, Appellants assert that

the district court mischaracterized some of their claims as asserted against

Verizon and the Plan fiduciaries, VIMCO and VEBC. In Appellants’ view, the

claim was asserted only against the Plan fiduciaries, and the district court’s

considering the claim as asserted against Verizon was questionable. However,

regarding some of the alleged bases for fiduciary breach, the allegations in the

SAC implicate the act of amending the Plan to direct the annuity purchase, an

act by Verizon as settlor, as well as the acts involved in implementing the

44 Id. at 106 (emphasis in original).

45 Id.

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annuity purchase, which involve functions of the Plan fiduciaries. As a result,

we hold the district court properly addressed Verizon’s role as sponsor, before

addressing the implementation of the transaction involving VIMCO and

VEBC. We separately consider these alleged breaches below.

1. Alleged Breach by Plan Sponsor

Appellants first assert that Verizon breached its fiduciary duty by

entering into the annuity transaction, which resulted in the partial transfer of

pension obligation from an ongoing Plan. Because such a transfer during an

ongoing plan is not expressly authorized by an ERISA provision or regulation,

Appellants posit that Verizon’s decision was subject to ERISA’s fiduciary duty

provisions. This argument lacks merit for several reasons: (1) precedent

suggests that the amendment was a settlor function; (2) ERISA and related

regulations authorize annuity purchases, and do not prohibit such purchases

during an ongoing plan; and (3) even assuming ERISA prohibits annuity

purchases during an ongoing plan, Appellants cite no authority that the

prohibition’s violation would subject an otherwise settlor function to fiduciary

requirements.

First, the precedent cited above describes the decision to amend a

pension plan concerning the composition or design of the plan as a settlor

function, immune from fiduciary strictures. Accordingly, the decision to amend

the Plan and transfer assets into an annuity was made solely by Verizon in its

settlor capacity. Appellants’ argument against this principle, broadly that any

action which disposes of plan assets creates fiduciary obligations, is not

supported by any authority. The Beck Court tangentially addressed

Appellants’ argument, noting that “[t]he purchase of an annuity is akin to a

transfer of assets and liability (to an insurance company)” yet maintaining its

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position that a decision to enter into an annuity (albeit during a plan

termination) was a settlor function. 46

Secondly, Appellants do not proffer any authority that would prohibit

the transfer from an ongoing plan via an annuity transaction. At the same

time, Appellees respond with ERISA provisions and regulations which suggest

such transactions are authorized, and at least are not foreclosed.

In the first instance, ERISA provisions, as well as regulations

promulgated by the Department of Labor, set forth several mechanisms by

which an employer may remove liabilities from a pension plan, one of which is

through transfer to an insurance company by an annuity purchase. 47 Upon

transfer via annuity purchase, an individual is no longer “a participant covered

under an employee pension plan or a beneficiary receiving benefits under an

employee pension plan,” so long as the individual’s entire benefit rights are (1)

guaranteed by the insurance company; (2) enforceable against the insurance

company at the sole choice of the individual; and (3) the individual is issued

notice of the benefits to which he or she is entitled under the plan. 48 Appellants

do not dispute that the annuity transaction complied with these requirements,

transferring the entire benefit rights of the Transferee Class and satisfying the

three requirements for removal from the Plan.

Regarding the ability of a plan sponsor to perform an annuity transfer

during an ongoing plan, neither ERISA itself nor the regulations promulgated

thereunder speak directly to this point. However, a Department of Labor

interpretive bulletin describes circumstances in which a pension plan might

purchase annuity contracts, and notes that “in the case of an ongoing plan,

46Id. at 102.

47See 29 C.F.R. § 2510.3-3(d)(2)(ii) (2015). See also 29 U.S.C. §§ 1341 (termination);

1058 (merger).

48 29 C.F.R. § 2510.3-3(d)(2)(ii) (2012).

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annuities might be purchased for participants who are retiring or separating

from service with accrued vested benefits.” 49 Although the bulletin does not

specifically describe this circumstance, the bulletin describes potential

circumstances non-exclusively, suggesting that such transfers are permitted,

especially when considered in conjunction with the annuity-transfer

regulation.

Finally, even assuming arguendo that ERISA prohibits annuity

purchases during ongoing plans, Appellants cite no authority which would

make the amendment a fiduciary function due to violation of that prohibition.

In light of the above considerations, we hold that the transfer of pension

liabilities from an ongoing plan through an annuity transaction amendment is

a settlor function, permitted under ERISA, or, alternatively, that such

transactions are not subject to fiduciary duty requirements.

2. Alleged Breaches by Plan Fiduciaries

The Transferee Class also alleges breach of fiduciary duty in the

implementation of the amendment. In this regard, the Transferee Class

asserts several grounds, alleging that Plan fiduciaries: (1) failed to hold the

annuity contract as a Plan asset; (2) failed to obtain consent of the Transferee

Class members; (3) failed to communicate with the Transferee Class members

prior to the annuity transaction; (4) violated the terms of § 8.5 of the Plan; and

49 See Interpretive Bulletins Relating to the Employee Retirement Income Security

Act of 1974, 60 Fed. Reg. 12328, 12328 (Mar. 6, 1995) (providing,

[p]ension plans purchase benefit distribution annuity contracts in a variety of

circumstances. Such annuities may be purchased for participants and

beneficiaries in connection with the termination of a plan, or in the case of an

ongoing plan, annuities might be purchased for participants who are retiring

or separating from service with accrued vested benefits.).

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(5) failed to select more than one annuity provider. 50 We consider these

breaches seriatim.

Failure to Hold Annuity Contract within Plan as Plan Asset. The

Transferee Class maintains that Plan beneficiaries should have held the

annuity contract as a Plan asset (“internal annuity”), and that such an

arrangement would have maintained ERISA and PBGC protections for the

benefit of the class members.

However, as the district court reasoned, the plan amendment did not

allow for the Plan to remain obligated for the benefit of the Transferee Class.

As noted above, the Plan fiduciaries are only responsible for decisions over

which they have discretion. Although disputed by Appellants, the terms of the

amendment clearly provide that the Plan will have no obligation to make any

payment for the pension benefits of the Transferee Class after the annuity

transaction. Within the strictures of the amendment terms, Plan fiduciaries

were without discretion to maintain pension obligations of the Transferee

Class within the Plan. 51

Failure to Obtain Transferee Consent. The Transferee Class also asserts

that the Plan fiduciaries should have obtained the consent of the Transferee

Class members before transferring the pension obligations to the annuity

50 The Transferee Class also alleged that the annuity transaction breached a fiduciary

duty by underfunding the Plan in violation of several statutes. The district court dismissed

this claim and, although the Transferee Class makes passing reference to underfunding in

its brief, it does not substantively urge review the district court’s dismissal of this ground on

appeal. The issue is therefore waived. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994)

(citation omitted).

51 The SAC does not describe in any detail how selecting an internal annuity was an

amendment-compliant option within the discretion of Plan fiduciaries. At a minimum,

however, maintaining the PBGC protections sought by the Transferee Class requires the

payment of premiums, see 29 U.S.C. § 1307, which would run afoul of the amendment’s

requirement that, after the annuity transaction, “the Plan shall have no further obligation to

make any payment with respect to any pension benefit of a Designated Participant.” ROA.120

(emphasis added).

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contract. In the first instance and as the district court noted, the determination

to transfer assets to an annuity was a decision made by Verizon as settlor, and

does not fall within the scope of its fiduciary duties. In Hughes Aircraft Co. v.

Jacobson, the Supreme Court held that three fiduciary claims were foreclosed

because “without exception, plan sponsors who alter the terms of a plan do not

fall into the category of fiduciaries.” 52 The Eighth Circuit decision in Howe v.

Varity Corp., 53 a pre-Jacobson decision to which Appellants cite for the consent

requirement, does not succeed in imputing fiduciary obligations to an action

which the Supreme Court has deemed immune from those obligations. We

further note that Appellants’ position is neither supported by the terms of

ERISA, which itself contains no such requirement for consent, either in the

provisions detailing fiduciary duties, 54 or in the provisions governing ERISA-

compliant annuity purchases. 55

Failure to Communicate with Transferees. The Transferee Class also

asserts that Plan fiduciaries breached their duty by not communicating with

beneficiaries. Although the Transferee Class asserts that “ERISA and its

accompanying regulations” require such communication, the Transferee Class

does not cite any actual ERISA provisions, and only cites to the Ninth Circuit

decision of Booton v. Lockheed Med. Benefit Plan, an inapposite opinion which

discussed the ERISA-required documentation following the denial of

benefits. 56 Although the Annuity Regulation does require that participants

receive notice of the terms of the benefits to which they are entitled as part of

52 Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 443 (1999) (citing Lockheed Corp. v.

Spink, 517 U.S. 882, 890-91 (1996)).

53 36 F.3d 746, 756 (8th Cir. 1994), aff’d on other grounds, 516 U.S. 489 (1996).

54 29 U.S.C. § 1104(a).

55 29 C.F.R. § 2510.3-3(d)(2)(ii).

56 110 F.3d 1461, 1463 (9th Cir. 1997).

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the annuity transaction, 57 it is undisputed that the Transferee Class received

this notice. After the annuity transaction, the benefits are no longer governed

by ERISA, and any nondisclosure does not give rise to a cognizable action. 58

Expenses of Annuity Transaction. As part of the annuity transaction, it

is undisputed that Verizon paid Prudential a total of $8.4 billion, $1 billion

more than the amount of the transferred liabilities. The Transferee Class

alleges that Verizon violated § 8.5 of the Plan, requiring that Plan assets be

used for the exclusive benefit of Plan beneficiaries and participants, as well as

reasonable expenses of administering the Plan and Pension Fund. In the SAC,

the Transferee Class alleges as follows:

However, almost $1 billion more than necessary to cover the

transferred liabilities was paid by Prudential by the Plan for

amounts other than benefits and reasonable expenses of

administering the Plan. The extra $1 billion payment was applied

toward expenses, not for administering the ongoing Plan, but to

enable avoidance of payment of such expenses by the Plan sponsor,

[Verizon], thus violating Section 8.5 . . . . 59

The extra $1 billion payment was used to pay Verizon’s-the

settlor’s obligations for third-party costs related to the annuity

transaction, including fees paid to outside lawyers, accountants,

actuaries, financial consultants and brokers. Those expenses and

fees should have been charged to Verizon’s corporate operating

revenues, not charged to the Plan and Master Trust. 60

The district court ruled that these allegations failed to state a claim by

not specifying “which aspects of the extra $1 billion of expenditures were

unreasonable, or how they were unreasonable.” 61 The Transferee Class argues

that the district court’s reasonableness analysis is misplaced, and that the

57 29 C.F.R. § 2510.3-3(d)(2)(ii).

58 See Beck v. PACE Intern. Union, 551 U.S. 96, 106 (2007).

59 SAC at ¶ 114 (emphasis in original).

60 Id. at ¶ 115.

61 Lee III, 2014 WL 1407416, at *4 (citing Lee II, 954 F.Supp.2d at 494).

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proper inquiry is whether the additional $1 billion in administrative costs was

a settlor cost which was wrongfully paid from Plan assets, constituting a

fiduciary breach. The Transferee Class supports their position by citing to a

Department of Labor advisory opinion discussing plan-related expenses for

which a settlor is responsible. The advisory opinion provides:

Expenses incurred in connection with the performance of settlor

functions would not be reasonable expenses of a plan as they would

be incurred for the benefit of the employer and would involve

services for which an employer could reasonably be expected to

bear the cost in the normal course of its business operations.

However, reasonable expenses incurred in connection with the

implementation of a settlor decision would generally be payable by

the plan. 62

Appellants quote the first portion, but omit the italicized portion of the

advisory opinion from their brief. 63 The effect of the advisory opinion, upon

which Appellants otherwise rely, is two-fold. First, by contemplating that

expenses implementing a settlor decision, such as an amendment and re-

structuring of a plan, are payable by the plan, the advisory opinion refutes

Appellants’ argument that expenditures not associated with plan

administration are unreasonable. Second, since implementation expenses by

the plan are permitted to the degree they are reasonable, the advisory opinion

focuses the critical inquiry on the reasonableness of the expenses.

In light of the foregoing, reasonableness of the expenses must be

addressed by the Transferee Class’s allegations. Here, although the allegations

enumerate various expenses associated with the implementation of Verizon’s

decision as settlor, they wholly fail to address how those expenses are not

reasonable expenses which are payable by the plan. To be sure, $1 billion in

62 Dept. of Labor Advisory Opinion 2001-01A (January 18, 2001) (emphasis added).

Available at: http://www.dol.gov/ebsa/regs/aos/ao2001-01a.html.

63 See Blue Br. 38–39.

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expenses is a large sum but, in light of the $7.5 billion in attendant obligations,

we will not conclude that this allegation alone is sufficient to support

unreasonableness under our pleading standards. In light of the threadbare

allegations, along with the size and complexity of the annuity transaction, we

agree with the district court’s dismissal of this ground as insufficiently

supported.

Failure to Select Multiple Annuity Providers. The Transferee Class

further alleges a breach of fiduciary duty by selecting Prudential as the sole

annuity provider. Regarding the selection of an annuity provider, this court

described the relevant inquiry in Bussian v. RJR Nabisco, Inc., as follows:

[W]hether the fiduciary, in structuring and conducting a thorough

and impartial investigation of annuity providers, carefully

considered [the factors enumerated in the Department of Labor

Interpretive Bulletin 95-1] and any others relevant under the

particular circumstances it faced at the time of decision. If so, a

fiduciary satisfies ERISA's obligations if, based upon what it

learns in its investigation, it selects an annuity provider it

“reasonably concludes best to promote the interests of [the plan's]

participants and beneficiaries.” 64

In a later decision, we clarified that the test of fiduciary prudence “is one

of conduct, not results.” 65 Even where a fiduciary’s conduct does not meet that

standard, “ERISA's obligations are nonetheless satisfied if the provider

selected would have been chosen had the fiduciary conducted a proper

investigation.” 66

In support of this showing, the Transferee Class simply alleges that a

more prudent choice would have been to contract with more than one insurer,

to avoid “put[ting] all of the Plan’s eggs in one basket” and “placing everyone

64 223 F.3d 286, 300 (5th Cir. 2000) (quoting Donovan v. Bierwirth, 680 F.2d 263, 271

(2d Cir. 1982)) (second alteration in original).

65 Kirschbaum v. Reliant Energy, Inc., 526 F.3d 243, 253 (5th Cir. 2008).

66 Bussian v. RJR Nabisco, Inc., 223 F.3d 286, 300 (5th Cir. 2000) (citation omitted).

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in jeopardy of losing retirement benefits based upon the fortunes of a single

insurer.” 67 The district court ruled that these allegations did not support a

fiduciary breach because they were conclusory. 68 While that is a basis for

dismissing this ground, the allegations also only implicate the results of the

process, and not the conduct of FCI.

Additionally, however, the SAC includes allegations implicating the

conduct of the Plan fiduciaries, asserting that the Prudential selection occurred

on the same day as the amendment’s adoption and that “VIMCO and Plan

fiduciaries did not prudently allow any period of time, much less a reasonable

time period for consideration [of the annuity provider(s)].” 69 Acknowledging

that these allegations might plausibly assert that the Plan fiduciaries did not

consider any annuity provider other than Prudential, the district court ruled

that such an interpretation nevertheless was rendered implausible in light of

other allegations in the SAC. To wit, the SAC alleges both that VIMCO

employed FCI almost two months prior to the alleged date of decision, 70 and

that FCI had submitted a written determination of the transaction’s

compliance with ERISA over a month prior to the date of the amendment. 71

We agree, and find no error in the district court’s dismissal of the

Transferee Class’s claim for fiduciary breach.

D. Violation of ERISA § 510, 29 U.S.C. § 1140

The Transferee Class also alleged a violation of ERISA § 510 in the Plan

amendment’s transfer of benefit obligations for only certain Plan participants,

67 SAC at ¶ 109.

68 See Lee III at 2014 WL 1407416, at *7.

69 SAC at ¶ 110.

70 Id. at ¶ 29(A).

71 Id. at ¶ 29(C).

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asserting that such expulsion represented intentional interference with rights

of the transferred participants. 72

Section 510 provides that it is “unlawful for any person to discharge, fine,

suspend, expel, discipline, or discriminate against a participant . . . for the

purpose of interfering with the attainment of any right to which such

participant may become entitled under the plan.” 73 The district court

dismissed this claim, ruling that the Transferee Class failed to allege a viable

right with which Verizon intended to interfere. 74

Although acknowledging that § 510 requires discrimination “for the

purpose of interfering with” a right, Appellants posit that § 510 prohibits

expulsion without any intent-to-interfere requirement. Appellees argue that

the prohibition on expulsion, like that on discrimination, must be made with

the intent to interfere with a right under the plan. Neither party provides

authority for their positions, and instead rely solely on their interpretation of

the provision’s language.

Appellees’ argument that expulsion must be attended by intent to

interfere in order to be actionable, however, is supported by a practical

consideration. Appellants’ construction would divorce the intent-to-interfere

requirement from any prohibition other than discrimination, which would also

divorce those prohibitions from the object of the interference, i.e. “any right to

which such participant may become entitled under the plan.” Such a reading,

72 As an initial point, Appellants argue that this case brings the question of whether

a plan amendment can be actionable under § 510 directly before the court, and cites several

previous opinions which did not address the issue. See McGann v. H & H Music Co., 946 F.2d

401, 406 n.8 (5th Cir. 1991), cert. denied sub nom, Greenberg v. H & H Music Co., 506 U.S.

981 (1992); Hines v. Mass. Mut. Life Ins. Co., 43 F.3d 207, 210 n.5 (5th Cir. 1995), overruled

on other grounds, Arana v. Ochsner Health Plan, 338 F.3d 433 (5th Cir. 2003). However,

because we hold that Appellants failed to allege a right with which Verizon intended to

interfere, the issue is not before us.

73 29 U.S.C. § 1140.

74 Lee III, 2014 WL 1407416, at *2 (citing Lee II, 954 F.Supp.2d at 495).

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which separates ERISA prohibitions from any rights in the ERISA-governed

plan, is overly broad.

Thus reading the expulsion prohibition to require an intent to interfere

with a right under the Plan, Appellees proffer two bases for affirming the

district court’s dismissal of this claim. First, as the district court ruled, the

Transferee Class did not identify a viable right with which Verizon interfered.

In the SAC, the Transferee Class alleges interference with two rights, their

continued participation in the Plan, and ERISA and PBGC protections. The

Transferee Class asserts their right to continued participation arises from the

language in the SPD, providing: “You are a plan participant as long as you

have a vested benefit in the plan that has not been paid to you in full.” 75 The

district court rejected this argument, noting that the Annuitization Regulation

provides that an individual ceases to be a participant when benefit rights are

guaranteed by an insurance company. 76 On appeal, Appellants respond that,

where the language of an SPD conflicts with that of a regulation, the SPD

should control. This argument is unavailing even assuming the SPD controls

because the SPD advised participants of the potential amendments which

could affect their rights. 77 Although unaddressed by the district court, the

Transferee Class assertion of rights in ERISA and PBGC protections is

unsupported. As previously discussed regarding Appellants’ similar assertion

in Issue I, there is little support in ERISA provisions or regulations, or case

law, for including ERISA protections and PBGC benefits as rights to which a

plan participant is entitled. 78 Further, as Appellees point out, the right to any

75 ROA.77.

76 See 29 C.F.R. § 2510.3-3(d)(2)(ii) (2015).

77 ROA.75.

78 See III.B., supra.

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of ERISA and PBGC protections is dependent on the class members’ right to

continued participation.

By failing to allege a viable right with which the amendment interfered,

the Transferee Class failed to state a claim and we find no error in the

dismissal of this claim.

E. Constitutional Standing

On behalf of the Non-Transferee Class, Plaintiff Pundt asserts, through

ERISA § 502(a)(2), 29 U.S.C. §§ 1132(a)(2) and (a)(3), a claim for relief under

ERISA § 409(a), 28 U.S.C. § 1109, for violation of fiduciary obligations by the

Plan fiduciaries. The district court ruled in Lee III that Pundt lacked

constitutional standing to assert this claim, as asserted in the SAC, by

reference to its prior basis for dismissal in Lee II. 79 Pundt challenges this ruling

on appeal, and we must first address this challenge prior to any consideration

of the merits since “[t]he requirement that jurisdiction be established as a

threshold matter . . . is inflexible and without exception.” 80

Section 502(a)(2) of ERISA allows a civil action to be brought by “a

participant, beneficiary or fiduciary for appropriate relief under [ERISA

§ 409].” 81 In turn, § 409(a) creates a right to relief against fiduciaries for the

restoration of any loss to a plan resulting from the breach of “any of the

responsibilities, obligations, or duties imposed upon fiduciaries by this

subchapter.” 82 On appeal, the Non-Transferee Class asserts that Plan

fiduciaries breached fiduciary duties by paying an excessive and unreasonable

expense, echoing the ERISA § 404 basis alleged by the Transferee Class. 83

79See Lee III, 2014 WL 1407416, at *2 (citing Lee II, 954 F.Supp.2d at 496).

80Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998).

81 29 U.S.C. 1132(a)(2) (2012).

82 29 U.S.C. 1109 (2012).

83 As with the allegations by the Transferee Class regarding breach of fiduciary duties

under ERISA § 404(a), the Non-Transferee Class alleged below that the annuity transaction

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The dispute centers not on whether Pundt has statutory standing under

§ 502, but instead whether he has constitutional standing under Article III. 84

In order to establish the “irreducible, constitutional minimum” of Article-III

standing, 85 “a plaintiff must show (1) an injury in fact, (2) a sufficient causal

connection between the injury and the conduct complained of, and (3) a

likelihood that the injury will be redressed by a favorable decision.” 86 The

showing involves an injury-in-fact requirement that the plaintiff has a

“personal stake in the outcome of the controversy,” 87 such that the injury is

“concrete and particularized,” and “actual or imminent, not conjectural or

hypothetical.” 88 “An allegation of future injury may suffice if the threatened

injury is ‘certainly impending,’ or there is a ‘substantial risk’ that the harm

will occur.’” 89

The district court ruled that Pundt had failed to allege an injury in fact

sufficient to support constitutional standing. Appellants argue Pundt was

injured through “losses to Plan assets held on [Pundt’s] behalf as a direct result

of the fiduciary mismanagement of Plan assets in violation of ERISA,” and that

this “invasion of his statutory right to proper management of Plan assets” is

sufficiently concrete to provide standing. 90 Appellees argue instead that

constitutional standing requires allegations to support injury against an

underfunded the Plan in violation of ERISA and the Internal Revenue Code. The Non-

Transferee Class, however, does not urge review of those allegations on appeal.

84 U.S. CONST. art. III, § 2.

85 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

86 Susan B. Anthony List v. Driehaus, --- U.S. ---, 134 S.Ct. 2334, 2341 (2014) (quoting

Lujan, 504 U.S. at 560-61) (internal quotation marks and alterations omitted).

87 Id. (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)).

88 Id. (quoting Lujan, 504 U.S. at 560) (internal quotation marks omitted).

89 Id. (quoting Clapper v. Amnesty Int’l USA, 568 U.S. ---, --- n.5, 133 S.Ct. 1138, 1147,

1150 n.5) (internal quotation marks omitted).

90 Blue Br. 52.

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individual’s benefit payments, rather than injury to the plan as a whole. We

agree with the district court’s dismissal for lack of subject matter jurisdiction.

Direct Harm to Participants. Pundt first argues that fiduciary

misconduct to his defined benefit plan presents individually cognizable harm,

but this position is not supported by case law. The cases cited by Appellants

discuss plans which, in contrast to the defined-benefit plan at issue here,

present a more direct risk of harm from fiduciary misconduct. 91 For example,

as the Supreme Court explained in LaRue v. DeWolff, Boberg & Assocs., “[f]or

defined contribution plans . . . fiduciary misconduct need not threaten the

solvency of the entire plan to reduce benefits below the amount that

participants would otherwise receive.” 92 As a result, other circuit courts have

held that participants in defined-contribution plans had redressable, Article

III standing because alleged fiduciary breaches had a direct effect on the

amount of benefits. 93

A defined-contribution plan presents a starkly different circumstance

than a defined-benefit plan, which “‘as its name implies, is one where the

employee, upon retirement, is entitled to a fixed periodic payment.’” 94 In

contrast to plans in which fiduciary misconduct might present a more direct

impact on a participant’s interest, fiduciary misconduct in a defined-benefit

plan “will not affect an individual’s entitlement to a defined benefit unless it

creates or enhances the risk of default by the entire plan” since such a plan

91 See Tolbert v. RBC Capital Markets Corp., 758 F.3d 619 (5th Cir. 2014) (considering

ERISA’s application to a wealth accumulation plan, another type of “employee pension

benefit plan” whereby benefits are dependent upon individual employee contributions and

investment performance); Leigh v. Engle, 727 F.2d 113 (7th Cir. 1984) (considering a profit-

sharing trust).

92 LaRue v. DeWolff, Boberg & Assocs., Inc., 552 U.S. 248, 255–56 (2008).

93 See, e.g., Harris v. Amgen, Inc., 573 F.3d 728, 735–36 (9th Cir. 2009).

94 Beck v. PACE Intern. Union, 551 U.S. 96, 98 (2007) (quoting Comm’r v. Keystone

Consol. Indus., Inc., 508 U.S. 152, 154 (1993)).

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“consists of a general pool of assets rather than individual dedicated

accounts.” 95 As a result, the injury to participants like Pundt is attenuated as,

prior to default under the plan, “the employer typically bears the entire

investment risk and—short of the consequences of plan termination—must

cover any underfunding as the result of a shortfall that may occur from the

plan's investments.” 96 Moreover, even where an employer is unable to cover

underfunding, the impact on participants is not certain since the PBGC

provides statutorily-defined protection of participants’ benefits. 97

The degree to which the impact of fiduciary misconduct must be realized

on this causal chain in order to establish standing is a matter of first

impression for this court. However, considering similar circumstances, our

sister circuits have concluded that constitutional standing for defined-benefit

plan participants requires imminent risk of default by the plan, such that the

participant’s benefits are adversely affected; in turn, those courts have held

that fiduciary misconduct, standing alone without allegations of impact on

individual benefits, is too removed to establish the requisite injury. 98 The

Fourth Circuit found such “risk-based theories of standing unpersuasive, not

least because they rest on a highly speculative foundation lacking any

discernible limiting principle.” 99 It is true that those courts considered plans

which remained overfunded after the alleged fiduciary misconduct, while here

the complaint alleges that, immediately after the annuity transaction, the plan

95 LaRue, 552 U.S. at 255 (contrasting the impact of fiduciary misconduct in defined-

contribution and defined-benefit plans).

96 Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 439 (1999).

97 See 29 U.S.C. § 1322.

98 See, e.g., David v. Alphin, 704 F.3d 327, 338 (4th Cir. 2013); Harley v. Minn. Mining

& Mfg. Co., 284 F.3d 901, 906 (8th Cir. 2002), Perelman v. Perelman, 919 F.Supp.2d 512,

517–520 (E.D. Pa. Jan. 24, 2013), aff’d, 2015 WL 4174537 (3rd Cir. July 13, 2015).

99 David, 704 F.3d at 338.

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was “left in a far less stable financial condition and underfunded by almost $2

billion or only about 66% actuarially funded.” 100

However, regardless of whether the plan is allegedly under- or over-

funded, the direct injury to a participants’ benefits is dependent on the

realization of several additional risks, which collectively render the injury too

speculative to support standing. In the first instance and as previously

discussed, absent plan termination, the employer must cover any shortfall

resulting from plan instability. 101 Pundt’s allegation that the plan was

underfunded, and less financially stable, merely increases the relative

likelihood that Verizon will have to cover a shortfall. However, Pundt’s

allegations do not further allege the realization of risks which would create a

likelihood of direct injury to participants’ benefits. To wit, Pundt does not

allege a plan termination, an inability by Verizon address a shortfall in the

event of a termination, or a direct effect thereof on participants’ benefits; on

the contrary, Appellants concede on appeal that the actuarial underfunding

resulted in no direct injury to Pundt.

Pundt also asserts that he directly suffered constitutionally cognizable

injury through invasion of his statutorily created right, specifically that the

alleged fiduciary breach from the mismanagement of Plan assets constitutes

an invasion of his statutory rights to proper Plan management, and invokes

principles of disgorgement. In David v. Alphin, however, the Fourth Circuit

rejected a similar argument as conflating the concepts of statutory and

constitutional standing. 102 We agree with the Fourth Circuit’s reasoning in this

regard. Article III standing is distinct from statutory standing, and we decline

to undermine this distinction by recognizing the latter as conferring the

100 ROA.1386.

101 See Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 439 (1999).

102 See David, 704 F.3d at 338.

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former. Though the Supreme Court in Lujan v. Defenders of Wildlife allowed

that the invasion of statutory rights might create standing, Lujan addressed

constitutional standing arising from de facto injury, which is not alleged by a

breach of fiduciary duty. 103 Importantly, the Lujan Court clarified that a

legislative creation of rights does not eliminate the injury requirement for a

party seeking review. 104 Accordingly, at least with regard to a direct injury to

Pundt as a class representative, we conclude that the allegations are

insufficient to support his standing to assert this claim.

Harm to Plan as Injury-in-Fact. While the alleged fiduciary misconduct

is thus too attenuated to suffice as direct injury to Pundt, Appellants

alternatively assert that the injury to the Plan itself is sufficient because Pundt

is statutorily authorized to assert the claim on behalf of the Plan.

In support of his argument that a direct-benefit plan participant may

bring suit on behalf of the plan, Appellants quote (without attribution) the

Supreme Court’s discussion in Sprint Communications Co., L.P. v. APCC

Services, Inc., of the various examples where courts permit suit for the benefit

of parties that are not themselves bringing suit. 105 The Sprint Court held that

an assignee for collection has Article III standing, even where the recovered

proceeds of the claim are promised to the assignor, and even though the

assignee did not originally suffer any injury. 106 Supporting the proposition that

“the assignee of a claim has standing to assert the injury in fact suffered by the

assignor,” the Sprint Court cited to Vermont Agency of Natural Resources v.

103 504 U.S. 555, 577–78 (1992).

104 See id. at 578.

105 554 U.S. 269, 287–88 (2008) (noting that “federal courts routinely entertain suits

which will result in relief for parties that are not themselves directly bringing suit. Trustees

bring suits to benefit their trusts; guardians ad litem bring suits to benefit their wards;

receivers bring suit to benefit their receiverships; assignees in bankruptcy bring suit to

benefit bankrupt estates; executors bring suit to benefit testator estates; and so forth.”).

106 554 U.S. at 285–87.

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United States ex rel. Stevens. 107 In Vermont Agency, the Court held that a

relator had Article III standing to bring a qui tam action because, through the

government’s partial assignment its claim for damages, the government had

conferred its injury in fact to the relator. 108 In both Sprint and Vermont Agency,

the Court found that the petitioners had standing based on the history and

precedent permitting assignees to maintain suit. 109

In light of this precedent, Appellants posit that Plan participants may

bring suit in a quasi-representative capacity, satisfying Article III’s injury-in-

fact requirement via an injury to the Plan. However, we decline to adopt this

position because both Sprint and Vermont Agency are distinguishable in

critical respects. First, those cases involved assignment between the parties,

while here the Plan and Plan participants have no such relationship, and the

Appellants do not argue that ERISA effects such an assignment (as did the

statute in Vermont Agency). Since the Court’s reasoning in both cases was

firmly grounded on the history and tradition of assignment relationships,

applying that reasoning to a circumstance in which no such relationship

existed is speculative.

Second and even more significant, Sprint and Vermont Agency both

involved the assignor as the injured party. Here, on the other hand, Appellants

seek standing based on statutory authorization by an uninjured government,

to seek redress by one private party of the injury to another private party. As

the Eighth Circuit noted regarding similar circumstances, extending Sprint in

such a way raises “serious constitutional concerns,” because “[i]f Congress

could assign an ERISA plan’s claim to a participant who is not injured, . . . then

what principled reason would preclude Congress from assigning the claim to

107 529 U.S. 765 (2000).

108 See id. at 773.

109 See Sprint, 554 U.S. at 285–86.

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any stranger?” 110 Collectively, the facts and reasoning of Sprint and Vermont

Agency allow a practical answer to this question, permitting Congress to satisfy

the injury-in-fact by statutory assignment, yet only when the government is

the injured party. Bearing in mind that “[i]n no event . . . may Congress

abrogate Article III minima,” we decline to otherwise construe and expand the

reasoning of Sprint. 111

For those reasons, we find no error the district court’s dismissing the

claim of the Non-Transferee Class for lack of subject matter jurisdiction.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

110 McCullough v. AEGON USA Inc., 585 F.3d 1082, 1086 (8th Cir. 2009).

111 Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 100 (1979).

36