Thole v. U. S. Bank N. A.

(Slip Opinion) OCTOBER TERM, 2019 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

THOLE ET AL. v. U. S. BANK N. A. ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

No. 17–1712. Argued January 13, 2020—Decided June 1, 2020

Plaintiffs James Thole and Sherry Smith are retired participants in U. S.

Bank’s defined-benefit retirement plan, which guarantees them a fixed

payment each month regardless of the plan’s value or its fiduciaries’

good or bad investment decisions. Both have been paid all of their

monthly pension benefits so far and are legally and contractually enti-

tled to those payments for the rest of their lives. Nevertheless, they

filed a putative class-action suit against U. S. Bank and others (collec-

tively, U. S. Bank) under the Employee Retirement Income Security

Act of 1974 (ERISA), alleging that the defendants violated ERISA’s

duties of loyalty and prudence by poorly investing the plan’s assets.

They request the repayment of approximately $750 million to the plan

in losses suffered due to mismanagement; injunctive relief, including

replacement of the plan’s fiduciaries; and attorney’s fees. The District

Court dismissed the case, and the Eighth Circuit affirmed on the

ground that the plaintiffs lack statutory standing.

Held: Because Thole and Smith have no concrete stake in the lawsuit,

they lack Article III standing. See Lujan v. Defenders of Wildlife, 504

U. S. 555, 560–561. Win or lose, they would still receive the exact same

monthly benefits they are already entitled to receive.

None of the plaintiffs’ arguments suffices to establish Article III

standing. First, the plaintiffs rely on a trust analogy in arguing that

an ERISA participant has an equitable or property interest in the plan

and that injuries to the plan are therefore injuries to the participants.

But participants in a defined-benefit plan are not similarly situated to

the beneficiaries of a private trust or to participants in a defined-

contribution plan, and they possess no equitable or property interest in

the plan, see Hughes Aircraft Co. v. Jacobson, 525 U. S. 432, 439–441.

Second, the plaintiffs cannot assert representative standing based on

2 THOLE v. U. S. BANK N. A.

Syllabus

injuries to the plan where they themselves have not “suffered an injury

in fact,” Hollingsworth v. Perry, 570 U. S. 693, 708, or been legally or

contractually appointed to represent the plan. Third, the fact that

ERISA affords all participants—including defined-benefit plan partic-

ipants—a cause of action to sue does not satisfy the injury-in-fact re-

quirement here. “Article III standing requires a concrete injury even

in the context of a statutory violation.” Spokeo, Inc. v. Robins, 578

U. S. ___, ___. Fourth, the plaintiffs contend that meaningful regula-

tion of plan fiduciaries is possible only if they may sue to target per-

ceived fiduciary misconduct. But this Court has long rejected that ar-

gument for Article III standing, see Valley Forge Christian College v.

Americans United for Separation of Church and State, Inc., 454 U. S.

464, 489, and defined-benefit plans are regulated and monitored in

multiple ways.

The plaintiffs’ amici assert that defined-benefit plan participants

have standing to sue if the plan’s mismanagement was so egregious

that it substantially increased the risk that the plan and the employer

would fail and be unable to pay the participants’ future benefits. The

plaintiffs do not assert that theory of standing here, nor did their com-

plaint allege that level of mismanagement. Pp. 2–8.

873 F. 3d 617, affirmed.

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and THOMAS, ALITO, and GORSUCH, JJ., joined. THOMAS, J., filed a

concurring opinion, in which GORSUCH, J., joined. SOTOMAYOR, J., filed a

dissenting opinion, in which GINSBURG, BREYER, and KAGAN, JJ., joined.

Cite as: 590 U. S. ____ (2020) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order that

corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 17–1712

_________________

JAMES J. THOLE, ET AL., PETITIONERS v.

U. S. BANK N. A., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

[June 1, 2020]

JUSTICE KAVANAUGH delivered the opinion of the Court.

To establish standing under Article III of the Constitu-

tion, a plaintiff must demonstrate (1) that he or she suffered

an injury in fact that is concrete, particularized, and actual

or imminent, (2) that the injury was caused by the defend-

ant, and (3) that the injury would likely be redressed by the

requested judicial relief. See Lujan v. Defenders of Wildlife,

504 U. S. 555, 560–561 (1992).

Plaintiffs James Thole and Sherry Smith are two retired

participants in U. S. Bank’s retirement plan. Of decisive

importance to this case, the plaintiffs’ retirement plan is a

defined-benefit plan, not a defined-contribution plan. In a

defined-benefit plan, retirees receive a fixed payment each

month, and the payments do not fluctuate with the value of

the plan or because of the plan fiduciaries’ good or bad in-

vestment decisions. By contrast, in a defined-contribution

plan, such as a 401(k) plan, the retirees’ benefits are typi-

cally tied to the value of their accounts, and the benefits can

turn on the plan fiduciaries’ particular investment deci-

sions. See Beck v. PACE Int’l Union, 551 U. S. 96, 98

(2007); Hughes Aircraft Co. v. Jacobson, 525 U. S. 432, 439–

2 THOLE v. U. S. BANK N. A.

Opinion of the Court

440 (1999).

As retirees and vested participants in U. S. Bank’s de-

fined-benefit plan, Thole receives $2,198.38 per month, and

Smith receives $42.26 per month, regardless of the plan’s

value at any one moment and regardless of the investment

decisions of the plan’s fiduciaries. Thole and Smith have

been paid all of their monthly pension benefits so far, and

they are legally and contractually entitled to receive those

same monthly payments for the rest of their lives.

Even though the plaintiffs have not sustained any mone-

tary injury, they filed a putative class-action suit against

U. S. Bank and others (collectively, U. S. Bank) for alleged

mismanagement of the defined-benefit plan. The alleged

mismanagement occurred more than a decade ago, from

2007 to 2010. The plaintiffs sued under ERISA, the aptly

named Employee Retirement Income Security Act of 1974,

88 Stat. 829, as amended, 29 U. S. C. §1001 et seq. The

plaintiffs claimed that the defendants violated ERISA’s du-

ties of loyalty and prudence by poorly investing the assets

of the plan. The plaintiffs requested that U. S. Bank repay

the plan approximately $750 million in losses that the plan

allegedly suffered. The plaintiffs also asked for injunctive

relief, including replacement of the plan’s fiduciaries. See

ERISA §§502(a)(2), (3), 29 U. S. C. §§1132(a)(2), (3).

No small thing, the plaintiffs also sought attorney’s fees.

In the District Court, the plaintiffs’ attorneys requested at

least $31 million in attorney’s fees.

The U. S. District Court for the District of Minnesota dis-

missed the case, and the U. S. Court of Appeals for the

Eighth Circuit affirmed on the ground that the plaintiffs

lack statutory standing. 873 F. 3d 617 (2017). We granted

certiorari. 588 U. S. ___ (2019).

We affirm the judgment of the U. S. Court of Appeals for

the Eighth Circuit on the ground that the plaintiffs lack Ar-

ticle III standing. Thole and Smith have received all of

their monthly benefit payments so far, and the outcome of

Cite as: 590 U. S. ____ (2020) 3

Opinion of the Court

this suit would not affect their future benefit payments. If

Thole and Smith were to lose this lawsuit, they would still

receive the exact same monthly benefits that they are al-

ready slated to receive, not a penny less. If Thole and Smith

were to win this lawsuit, they would still receive the exact

same monthly benefits that they are already slated to re-

ceive, not a penny more. The plaintiffs therefore have no

concrete stake in this lawsuit. To be sure, their attorneys

have a stake in the lawsuit, but an “interest in attorney’s

fees is, of course, insufficient to create an Article III case or

controversy where none exists on the merits of the underly-

ing claim.” Lewis v. Continental Bank Corp., 494 U. S. 472,

480 (1990); see Steel Co. v. Citizens for Better Environment,

523 U. S. 83, 107 (1998) (same). Because the plaintiffs

themselves have no concrete stake in the lawsuit, they lack

Article III standing.

* * *

If Thole and Smith had not received their vested pension

benefits, they would of course have Article III standing to

sue and a cause of action under ERISA §502(a)(1)(B) to re-

cover the benefits due to them. See 29 U. S. C.

§1132(a)(1)(B). But Thole and Smith have received all of

their monthly pension benefits so far, and they will receive

those same monthly payments for the rest of their lives.

To nonetheless try to demonstrate their standing to chal-

lenge alleged plan mismanagement, the plaintiffs have ad-

vanced four alternative arguments.

First, analogizing to trust law, Thole and Smith contend

that an ERISA defined-benefit plan participant possesses

an equitable or property interest in the plan, meaning in

essence that injuries to the plan are by definition injuries

to the plan participants. Thole and Smith contend, in other

words, that a plan fiduciary’s breach of a trust-law duty of

prudence or duty of loyalty itself harms ERISA defined-ben-

efit plan participants, even if the participants themselves

4 THOLE v. U. S. BANK N. A.

Opinion of the Court

have not suffered (and will not suffer) any monetary losses.

The basic flaw in the plaintiffs’ trust-based theory of

standing is that the participants in a defined-benefit plan

are not similarly situated to the beneficiaries of a private

trust or to the participants in a defined-contribution plan.

See Varity Corp. v. Howe, 516 U. S. 489, 497 (1996) (trust

law informs but does not control interpretation of ERISA).

In the private trust context, the value of the trust property

and the ultimate amount of money received by the benefi-

ciaries will typically depend on how well the trust is man-

aged, so every penny of gain or loss is at the beneficiaries’

risk. By contrast, a defined-benefit plan is more in the na-

ture of a contract. The plan participants’ benefits are fixed

and will not change, regardless of how well or poorly the

plan is managed. The benefits paid to the participants in a

defined-benefit plan are not tied to the value of the plan.

Moreover, the employer, not plan participants, receives any

surplus left over after all of the benefits are paid; the em-

ployer, not plan participants, is on the hook for plan short-

falls. See Beck, 551 U. S., at 98–99. As this Court has

stated before, plan participants possess no equitable or

property interest in the plan. See Hughes Aircraft Co., 525

U. S., at 439–441; see also LaRue v. DeWolff, Boberg & As-

sociates, Inc., 552 U. S. 248, 254–256 (2008). The trust-law

analogy therefore does not fit this case and does not support

Article III standing for plaintiffs who allege mismanage-

ment of a defined-benefit plan.

Second, Thole and Smith assert standing as representa-

tives of the plan itself. But in order to claim “the interests

of others, the litigants themselves still must have suffered

an injury in fact, thus giving” them “a sufficiently concrete

interest in the outcome of the issue in dispute.” Hol-

lingsworth v. Perry, 570 U. S. 693, 708 (2013) (internal quo-

tation marks omitted); cf. Gollust v. Mendell, 501 U. S. 115,

125–126 (1991) (suggesting that shareholder must “main-

Cite as: 590 U. S. ____ (2020) 5

Opinion of the Court

tain some continuing financial stake in the litigation” in or-

der to have Article III standing to bring an insider trading

suit on behalf of the corporation); Craig v. Boren, 429 U. S.

190, 194–195 (1976) (vendor who “independently” suffered

an Article III injury in fact could then assert the rights of

her customers). The plaintiffs themselves do not have a

concrete stake in this suit.

The plaintiffs point to the Court’s decisions upholding the

Article III standing of assignees—that is, where a party’s

right to sue has been legally or contractually assigned to

another party. But here, the plan’s claims have not been

legally or contractually assigned to Thole or Smith. Cf.

Sprint Communications Co. v. APCC Services, Inc., 554

U. S. 269, 290 (2008); Vermont Agency of Natural Resources

v. United States ex rel. Stevens, 529 U. S. 765, 771–774

(2000) (qui tam statute makes a relator a partial assignee

and “gives the relator himself an interest in the lawsuit”)

(emphasis deleted). The plaintiffs’ invocation of cases in-

volving guardians, receivers, and executors falls short for

basically the same reason. The plaintiffs have not been le-

gally or contractually appointed to represent the plan.

Third, in arguing for standing, Thole and Smith stress

that ERISA affords the Secretary of Labor, fiduciaries, ben-

eficiaries, and participants—including participants in a de-

fined-benefit plan—a general cause of action to sue for res-

toration of plan losses and other equitable relief. See

ERISA §§502(a)(2), (3), 29 U. S. C. §§1132(a)(2), (3). But

the cause of action does not affect the Article III standing

analysis. This Court has rejected the argument that “a

plaintiff automatically satisfies the injury-in-fact require-

ment whenever a statute grants a person a statutory right

and purports to authorize that person to sue to vindicate

that right.” Spokeo, Inc. v. Robins, 578 U. S. ___, ___ (2016)

(slip op., at 9); see Raines v. Byrd, 521 U. S. 811, 820, n. 3

(1997). The Court has emphasized that “Article III stand-

6 THOLE v. U. S. BANK N. A.

Opinion of the Court

ing requires a concrete injury even in the context of a stat-

utory violation.” Spokeo, 578 U. S., at ___ (slip op., at 9).

Here, the plaintiffs have failed to plausibly and clearly al-

lege a concrete injury.1

Fourth, Thole and Smith contend that if defined-benefit

plan participants may not sue to target perceived fiduciary

misconduct, no one will meaningfully regulate plan fiduci-

aries. For that reason, the plaintiffs suggest that defined-

benefit plan participants must have standing to sue. But

this Court has long rejected that kind of argument for Arti-

cle III standing. See Valley Forge Christian College v.

Americans United for Separation of Church and State, Inc.,

454 U. S. 464, 489 (1982) (the “ ‘assumption that if respond-

ents have no standing to sue, no one would have standing,

is not a reason to find standing’ ”) (quoting Schlesinger v.

Reservists Comm. to Stop the War, 418 U. S. 208, 227

(1974)).

In any event, the argument rests on a faulty premise in

this case because defined-benefit plans are regulated and

monitored in multiple ways. To begin with, employers and

their shareholders often possess strong incentives to root

out fiduciary misconduct because the employers are enti-

tled to the plan surplus and are often on the hook for plan

shortfalls. Therefore, about the last thing a rational em-

ployer wants or needs is a mismanaged retirement plan. Cf.

ERISA §4062(a), 29 U. S. C. §1362(a). Moreover, ERISA ex-

pressly authorizes the Department of Labor to enforce

ERISA’s fiduciary obligations. See ERISA §502(a)(2), 29

U. S. C. §1132(a)(2). And the Department of Labor has a

substantial motive to aggressively pursue fiduciary miscon-

duct, particularly to avoid the financial burden of failed de-

fined-benefit plans being backloaded onto the Federal Gov-

ernment. When a defined-benefit plan fails and is unable

——————

1 To be clear, our decision today does not concern suits to obtain plan

information. See, e.g., ERISA §502(a)(1)(A), 29 U. S. C. §1132(a)(1)(A).

Cite as: 590 U. S. ____ (2020) 7

Opinion of the Court

to pay benefits to retirees, the federal Pension Benefit

Guaranty Corporation is required by law to pay the vested

pension benefits of the retirees, often in full. The Depart-

ment of Labor is well positioned to understand the relation-

ship between plan failure and the PBGC because, by law,

the PBGC operates within the Department of Labor, and

the Secretary of Labor chairs the Board of the PBGC. See

ERISA §§4002(a), (d), 29 U. S. C. §§1302(a), (d). On top of

all that, fiduciaries (including trustees who are fiduciaries)

can sue other fiduciaries—and they would have good reason

to sue if, as Thole and Smith posit, one fiduciary were using

the plan’s assets as a “personal piggybank.” Brief for Peti-

tioners 2. In addition, depending on the nature of the fidu-

ciary misconduct, state and federal criminal laws may ap-

ply. See, e.g., 18 U. S. C. §§664, 1954; ERISA §514(b)(4), 29

U. S. C. §1144(b)(4). In short, under ERISA, fiduciaries

who manage defined-benefit plans face a regulatory phal-

anx.

In sum, none of the plaintiffs’ four theories supports their

Article III standing in this case.

One last wrinkle remains. According to the plaintiffs’

amici, plan participants in a defined-benefit plan have

standing to sue if the mismanagement of the plan was so

egregious that it substantially increased the risk that the

plan and the employer would fail and be unable to pay the

participants’ future pension benefits. Cf. Clapper v. Am-

nesty Int’l USA, 568 U. S. 398, 414, n. 5 (2013); Lee v. Veri-

zon Communications, Inc., 837 F. 3d 523, 545–546 (CA5

2016); David v. Alphin, 704 F. 3d 327, 336–338 (CA4 2013).

But the plaintiffs do not assert that theory of standing in

this Court. In any event, the plaintiffs’ complaint did not

plausibly and clearly claim that the alleged mismanage-

ment of the plan substantially increased the risk that the

plan and the employer would fail and be unable to pay the

plaintiffs’ future pension benefits. It is true that the plain-

tiffs’ complaint alleged that the plan was underfunded for a

8 THOLE v. U. S. BANK N. A.

Opinion of the Court

period of time. But a bare allegation of plan underfunding

does not itself demonstrate a substantially increased risk

that the plan and the employer would both fail. Cf. LaRue,

552 U. S., at 255 (“Misconduct by the administrators of a

defined benefit plan will not affect an individual’s entitle-

ment to a defined benefit unless it creates or enhances the

risk of default by the entire plan”).2

* * *

Courts sometimes make standing law more complicated

than it needs to be. There is no ERISA exception to Article

III. And under ordinary Article III standing analysis, the

plaintiffs lack Article III standing for a simple, com-

monsense reason: They have received all of their vested

pension benefits so far, and they are legally entitled to re-

ceive the same monthly payments for the rest of their lives.

Winning or losing this suit would not change the plaintiffs’

monthly pension benefits. The plaintiffs have no concrete

stake in this dispute and therefore lack Article III standing.

We affirm the judgment of the U. S. Court of Appeals for

the Eighth Circuit.

It is so ordered.

——————

2 Even if a defined-benefit plan is mismanaged into plan termination,

the federal PBGC by law acts as a backstop and covers the vested pension

benefits up to a certain amount and often in full. For example, if the

plan and the employer in this case were to fail, the PBGC would be re-

quired to pay these two plaintiffs all of their vested pension benefits in

full. See ERISA §§4022(a), (b), 29 U. S. C. §§1322(a), (b); Tr. of Oral Arg.

18–19; see also Congressional Research Service, Pension Benefit Guar-

anty Corporation (PBGC): A Primer 1 (2019); PBGC, General FAQs

About PBGC, https://www.pbgc.gov/about/faq/general-faqs-about-pbgc.

Any increased-risk-of-harm theory of standing therefore might not be

available for plan participants whose benefits are guaranteed in full by

the PBGC. But we need not decide that question in this case.

Cite as: 590 U. S. ____ (2020) 1

THOMAS, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 17–1712

_________________

JAMES J. THOLE, ET AL., PETITIONERS v.

U. S. BANK N. A., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

[June 1, 2020]

JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,

concurring.

I agree with the Court’s opinion, which correctly applies

our precedents and concludes that petitioners lack stand-

ing. I also agree that “[c]ourts sometimes make standing

law more complicated than it needs to be.” Ante, at 8. I

write separately to observe that by requiring us to engage

with petitioners’ analogies to trust law, our precedents un-

necessarily complicate this case.

The historical restrictions on standing provide a simpler

framework. Article III vests “[t]he judicial Power of the

United States” in the federal courts and specifies that it

shall extend to enumerated categories of “Cases” and “Con-

troversies.” §§1, 2. “To understand the limits that standing

imposes on ‘the judicial Power,’ . . . we must ‘refer directly

to the traditional, fundamental limitations upon the powers

of common-law courts.’ ” Spokeo, Inc. v. Robins, 578 U. S.

___, ___ (2016) (THOMAS, J., concurring) (slip op., at 2)

(quoting Honig v. Doe, 484 U. S. 305, 340 (1988) (Scalia, J.,

dissenting)); see also Muskrat v. United States, 219 U. S.

346, 356–357 (1911) (observing that the “judicial power

with the right to determine ‘cases’ and ‘controversies’ ” has

long referred to “suit[s] instituted according to the regular

course of judicial procedure”).

“Common-law courts imposed different limitations on a

2 THOLE v. U. S. BANK N. A.

THOMAS, J., concurring

plaintiff ’s right to bring suit depending on the type of right

the plaintiff sought to vindicate.” Spokeo, 578 U. S., at ___

(THOMAS, J., concurring) (slip op., at 2). Rights were typi-

cally divided into private rights and public rights. Private

rights are those “ ‘belonging to individuals, considered as in-

dividuals.’ ” Ibid. (quoting 3 W. Blackstone, Commentaries

*2); see also Woolhandler & Nelson, Does History Defeat

Standing Doctrine? 102 Mich. L. Rev. 689, 693 (2004). Pub-

lic rights are “owed ‘to the whole community, considered as

a community, in its social aggregate capacity.’ ” Spokeo, su-

pra, at ___ (THOMAS, J., concurring) (slip op., at 3) (quoting

4 Blackstone, supra, at *5); see also Woolhandler & Nelson,

supra, at 693.

Petitioners claim violations of private rights under the

Employee Retirement Income Security Act of 1974

(ERISA). “In a suit for the violation of a private right,

courts historically presumed that the plaintiff suffered a

de facto injury [if] his personal, legal rights [were] invaded.”

Spokeo, supra, at ___ (THOMAS, J., concurring) (slip op., at

2). In this case, however, none of the rights identified by

petitioners belong to them. The fiduciary duties created by

ERISA are owed to the plan, not petitioners. See 29 U. S. C.

§§1104(a)(1), 1105(a), 1106(a)(1), 1106(b), 1109(a). As par-

ticipants in a defined benefit plan, petitioners have no legal

or equitable ownership interest in the plan assets. See ante,

at 4. There has been no assignment of the plan’s rights by

ERISA or any contract. See ante, at 5. And petitioners can-

not rely on ERISA §502(a). Although it establishes certain

causes of action, it creates no private right. See §1132(a).

There is thus no need to analogize petitioners’ complaint

to trust law actions, derivative actions, qui tam actions, or

anything else. We need only recognize that the private

rights that were allegedly violated do not belong to petition-

ers under ERISA or any contract.

Our ERISA precedents have especially complicated the

Cite as: 590 U. S. ____ (2020) 3

THOMAS, J., concurring

question of standing in this case due to their misinterpre-

tations of the statute. I continue to object to this Court’s

practice of using the common law of trusts as the “starting

point” for interpreting ERISA. Varity Corp. v. Howe, 516

U. S. 489, 497 (1996). “[I]n ‘every case involving construc-

tion of a statute,’ the ‘starting point . . . is the language it-

self.’ ” Id., at 528 (THOMAS, J., dissenting) (quoting Ernst &

Ernst v. Hochfelder, 425 U. S. 185, 197 (1976); ellipsis in

original). This is especially true for ERISA because its

“statutory definition of a fiduciary departs from the com-

mon law.” Varity, supra, at 528. The Court correctly ap-

plies Varity here, but in an appropriate case, we should re-

consider our reliance on loose analogies in both our

standing and ERISA jurisprudence.

Cite as: 590 U. S. ____ (2020) 1

SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 17–1712

_________________

JAMES J. THOLE, ET AL., PETITIONERS v.

U. S. BANK N. A., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

[June 1, 2020]

JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG,

JUSTICE BREYER, and JUSTICE KAGAN join, dissenting.

The Court holds that the Constitution prevents millions

of pensioners from enforcing their rights to prudent and

loyal management of their retirement trusts. Indeed, the

Court determines that pensioners may not bring a federal

lawsuit to stop or cure retirement-plan mismanagement

until their pensions are on the verge of default. This con-

clusion conflicts with common sense and longstanding prec-

edent.

I

A

ERISA1 protects “the interests of participants in em-

ployee benefit plans and their beneficiaries.” 29 U. S. C.

§1001(b). Chief among these safeguards is that “all assets

of an employee benefit plan” must “be held in trust by one

or more trustees” for “the exclusive purposes of providing

benefits to participants in the plan and their beneficiaries.”

§§1103(a), (c)(1). A retirement plan’s assets “shall never in-

ure to the benefit of any employer.” §1103(c)(1).

Because ERISA requires that retirement-plan assets be

——————

1 Employee Retirement Income Security Act of 1974, 88 Stat. 829, as

amended, 29 U. S. C. §1001 et seq.

2 THOLE v. U. S. BANK N. A.

SOTOMAYOR, J., dissenting

held in trust, it imposes on the trustees and other plan man-

agers “ ‘strict standards’ ” of conduct “ ‘derived from the com-

mon law of trusts.’ ” Fifth Third Bancorp v. Dudenhoeffer,

573 U. S. 409, 416 (2014) (quoting Central States, Southeast

& Southwest Areas Pension Fund v. Central Transport, Inc.,

472 U. S. 559, 570 (1985)). These “fiduciary duties” obligate

the trustees and managers to act prudently and loyally,

looking out solely for the best interest of the plan’s partici-

pants and beneficiaries—typically, the employees who sac-

rifice wages today to secure their retirements tomorrow.

§§1104, 1106. Not surprisingly, ERISA fiduciaries owe du-

ties not only to the plan they manage, but also “to the ben-

eficiaries” and participants for whom they manage it. Har-

ris Trust and Sav. Bank v. Salomon Smith Barney Inc., 530

U. S. 238, 241–242, 250 (2000).

If a fiduciary flouts these stringent standards, ERISA

provides a cause of action and makes the fiduciary person-

ally liable. §§1109, 1132. The United States Secretary of

Labor, a plan participant or beneficiary, or another fiduci-

ary may sue for “appropriate relief under section 1109.”

§1132(a)(2); see also §1132(a)(3) (permitting participants,

beneficiaries, or fiduciaries to bring suit “to enjoin any act

or practice which violates any provision of this subchapter

or the terms of the plan”). Section 1109’s remedies include

restoration of lost assets, disgorgement of ill-gained profits,

and removal of the offending fiduciaries. §1109(a).

B

Petitioners allege that, as of 2007, respondents breached

their fiduciary duty of loyalty by investing pension-plan as-

sets in respondents’ own mutual funds and by paying them-

selves excessive management fees. (Petitioners further

contend that this self-dealing persists today.) According to

the complaint, the fiduciaries also made imprudent invest-

ments that allowed them to manipulate accounting rules,

boost their reported incomes, inflate their stock prices, and

Cite as: 590 U. S. ____ (2020) 3

SOTOMAYOR, J., dissenting

exercise lucrative stock options to their own (and their

shareholders’) benefit.

Then came the Great Recession. In 2008, the retirement

plan lost $1.1 billion, allegedly $748 million more than a

properly managed plan would have lost. So some of the

plan’s participants sued under 29 U. S. C. §1132(a) for the

relief Congress contemplated: restoration of losses, dis-

gorgement of respondents’ ill-gotten profits and fees, re-

moval of the disloyal fiduciaries, and an injunction to stop

the ongoing breaches. Faced with this lawsuit, respondents

returned to the plan about $311 million (less than half

of what the plan had lost) and none of the profits respond-

ents had unlawfully gained. See 873 F. 3d 617, 630–631

(CA8 2018).

II

In the Court’s words, the question here is whether peti-

tioners have alleged a “concrete” injury to support their con-

stitutional standing to sue. Ante, at 3. They have for at

least three independent reasons.

A

First, petitioners have an interest in their retirement

plan’s financial integrity, exactly like private trust benefi-

ciaries have in protecting their trust. By alleging a $750

million injury to that interest, petitioners have established

their standing.

1

This Court typically recognizes an “injury in fact” where

the alleged harm “has a close relationship to” one “that has

traditionally been regarded as providing a basis for a law-

suit in English or American courts.” Spokeo, Inc. v. Robins,

578 U. S. ___, ___ (2016) (slip op., at 9). Thus, the Court

acknowledges that “private trust” beneficiaries have stand-

ing to protect the assets in which they have an “equitable”

interest. Ante, at 3–4. The critical question, then, is

4 THOLE v. U. S. BANK N. A.

SOTOMAYOR, J., dissenting

whether petitioners have an equitable interest in their re-

tirement plan’s assets even though their pension payments

are fixed.

They do. ERISA expressly required the creation of a trust

in which petitioners are the beneficiaries: “[A]ll assets” of

the plan “shall be held in trust” for petitioners’ “exclusive”

benefit. 29 U. S. C. §§1103(a), (c)(1); see also §1104(a)(1).2

These requirements exist regardless whether the employer

establishes a defined-benefit or defined-contribution plan.

§1101(a). Similarly, the Plan Document governing petition-

ers’ defined-benefit plan states that, at “ ‘all times,’ ” all plan

assets “ ‘shall’ ” be in a “ ‘trust fund’ ” managed for the par-

ticipants’ and beneficiaries’ “ ‘exclusive benefit.’ ” App. 60–

61. The Plan Document also gives petitioners a residual

interest in the trust fund’s assets: It instructs that, “[u]pon

termination of the Plan, each Participant [and] Beneficiary”

shall look to “the assets of the [trust f]und” to “provide the

benefits otherwise apparently promised in this Plan.” Rec-

ord in No. 13–cv–2687 (D Minn.), Doc. 107–1, p. 75. This

arrangement confers on the “participants [and] beneficiar-

ies” of a defined-benefit plan an equitable stake, or a “com-

mon interest,” in “the financial integrity of the plan.” Mas-

sachusetts Mut. Life Ins. Co. v. Russell, 473 U. S. 134, 142,

n. 9 (1985).

Petitioners’ equitable interest finds ample support in tra-

ditional trust law. “The creation of a trust,” like the one

here, provides beneficiaries “an equitable interest in the

subject matter of the trust.” Restatement (Second) of

——————

2 Generally, “a trust is created when one person (a ‘settlor’ or ‘grantor’)

transfers property to a third party (a ‘trustee’) to administer for the ben-

efit of another (a ‘beneficiary’).” North Carolina Dept. of Revenue v. Kim-

berley Rice Kaestner 1992 Family Trust, 588 U. S. ___, ___ (2019) (slip

op., at 2); see also Restatement (Second) of Trusts §2 (1957). Neither the

Court nor respondents dispute that petitioners’ pension fund meets these

elements.

Cite as: 590 U. S. ____ (2020) 5

SOTOMAYOR, J., dissenting

Trusts §74, Comment a, p. 192 (1957); see Blair v. Commis-

sioner, 300 U. S. 5, 13 (1937). Courts have long recognized

that this equitable interest gives beneficiaries a basis to

“have a breach of trust enjoined and . . . redress[ed].” Ibid.;

see also Spokeo, 578 U. S., at ___ (slip op., at 9). That is, a

beneficiary’s equitable interest allows her to “maintain a

suit” to “compel the trustee to perform his duties,” to “enjoin

the trustee from committing a breach of trust,” to “compel

the trustee to redress a breach of trust,” and to “remove the

trustee.” Restatement (Second) of Trusts §199; see also id.,

§205 (beneficiary may require a trustee to restore “any loss

or depreciation in value of the trust estate” and “any profit

made by [the trustee] through the breach of trust”).3

So too here. Because respondents’ alleged mismanage-

ment lost the pension fund hundreds of millions of dollars,

petitioners have stated an injury to their equitable property

interest in that trust.

2

The Court, by contrast, holds that participants and bene-

ficiaries in a defined-benefit plan have no stake in their

plan’s assets. Ante, at 4. In other words, the Court treats

beneficiaries as mere bystanders to their own pensions.

That is wrong on several scores. For starters, it creates

a paradox: In one breath, the Court determines that peti-

tioners have “no equitable or property interest” in their

plan’s assets, ante, at 4; in another, the Court concedes that

petitioners have an enforceable interest in receiving their

“monthly pension benefits,” ante, at 2. Benefits paid from

where? The plan’s assets, obviously. Precisely because pe-

titioners have an interest in payments from their trust

——————

3 Even contingent and discretionary beneficiaries (those who might not

ever receive any assets from the trust) can sue to protect the trust absent

a personal financial loss (or an imminent risk of loss). See A. Hess, G.

Bogert, & G. Bogert, Law of Trusts and Trustees §871 (June 2019 up-

date) (Bogert & Bogert) (listing cases).

6 THOLE v. U. S. BANK N. A.

SOTOMAYOR, J., dissenting

fund, they have an interest in the integrity of the assets

from which those payments come. See Russell, 473 U. S.,

at 142, n. 9.

The Court’s contrary conclusion is unrecognizable in the

fundamental trust law that both ERISA and the Plan Doc-

ument expressly incorporated. If the participants and

beneficiaries in a defined-benefit plan did not have equita-

ble title to the plan’s assets, then no one would. Yet that

would mean that no “trust” exists, contrary to the plain

terms of both ERISA and the Plan Document. See 29

U. S. C. §1103(a); App. 60; see also n. 2, supra; Blair, 300

U. S., at 13; Bogert & Bogert §1; Restatement (Second) of

Trusts §74, Comment a, at 192.

Recognizing this problem, the Court asserts that, despite

our case law, ERISA’s text, and petitioners’ Plan Document,

trust law is not relevant at all. The Court announces that

all “plaintiffs who allege mismanagement of a defined-ben-

efit plan,” regardless of their plan terms, cannot invoke a

“trust-law analogy” to “support Article III standing.” Ante,

at 4.

That categorical conclusion has no basis in logic or law.

Logically, the Court’s reasoning relies on tautology. To dis-

tinguish an ERISA trust fund from a private trust fund, the

Court observes that petitioners’ payments have not “fluctu-

ate[d] with the value of the plan or because of the plan fi-

duciaries’ good or bad investment decisions” in the past,

ante, at 1, so petitioners will necessarily continue to receive

full payments “for the rest of their lives,” no matter the out-

come of this suit, ante, at 3. But that is circular: Petitioners

will receive benefits indefinitely because they receive bene-

fits now? The Court does not explain how the pension could

satisfy its monthly obligation if, as petitioners allege, the

plan fiduciaries drain the pool from which petitioners’ fixed

income streams flow.

Legally, the Court’s analysis lists distinctions without a

difference. First, the Court writes that a trust promising

Cite as: 590 U. S. ____ (2020) 7

SOTOMAYOR, J., dissenting

fixed payments is not a trust because the promise “will not

change, regardless of how well or poorly the [trust] is man-

aged.” Ante, at 4. That does not follow (a promise of pay-

ment differs from an actual payment) and it does not dis-

prove a trust. Trusts vary in their terms, to be sure. See

Bogert & Bogert §181 (“The settlor has great freedom in the

selection of the beneficiaries and their interests”). But re-

gardless whether a trust creates a “present interest” in “im-

mediate enjoyment” of the trust property or “a future inter-

est” in “receiv[ing] trust assets or benefits at a later time,”

the beneficiary “always” has an “equitable” stake. Ibid.

Second, the Court states that “the employer, not plan par-

ticipants, receives any surplus left over after all of the ben-

efits are paid” and “the employer, not plan participants, is

on the hook for plan shortfalls.” Ante, at 4; see also ante,

at 7 (noting that “the federal Pension Benefit Guaranty

Corporation is required by law to pay” some benefits if a

plan fails). But that does not distinguish ERISA from

standard trust law, either. It does not matter that other

parties besides beneficiaries may have a residual stake in

trust assets; a beneficiary with a life-estate interest in pay-

ments from a trust still has an equitable interest. See

Bogert & Bogert §706. Even life-beneficiaries may “re-

quir[e]” the trustee “to pay the trust the amount necessary

to place the trust account in the position in which it would

have been, had the [trustee’s fiduciary] duty been per-

formed.” Ibid. If anything, petitioners’ equitable interests

are stronger than those of their common-law counterparts;

the Plan Document provides petitioners a residual interest

in the pension fund’s assets even after the trust terminates.

See Record in No. 13–cv–2687, Doc. 107–1, at 75.

Nor is it relevant whether additional parties (including

an insurance carrier) are “on the hook” for plan shortfalls

after a loss occurs. Cf. ante, at 4, 6, 7, 8, n. 2. The Court

appears to conclude that insurance (or other protections to

8 THOLE v. U. S. BANK N. A.

SOTOMAYOR, J., dissenting

remedy trust losses) would deprive beneficiaries of their eq-

uitable interests in their trusts. See ibid. But the Court

cites nothing supporting that proposition. To the contrary,

it is well settled that beneficiaries retain equitable interests

in trust assets even when those assets are insured or re-

plenished. See Bogert & Bogert §599. Some States and

trusts require that the “property of a trust . . . be insured”

or similarly protected; indeed, some jurisdictions impose on

trustees a fiduciary “duty to insure.” Ibid. (collecting au-

thorities). None of those authorities suggests that benefi-

ciaries lose their equitable interests as a result, and none

suggests that the law excuses a fiduciary’s malfeasance

simply because other sources may help provide relief. The

Court’s opposing view—that employer liability and insur-

ance pardon a trustee’s wrongdoing from a beneficiary’s

suit—has no support in law.

Third, the Court draws a line between a trust and a con-

tract, ante, at 4, but this too is insignificant here. The Court

declares that petitioners’ pension plan “is more in the na-

ture of a contract,” ibid.¸ but then overlooks that the so-

called contract creates a trust. The Plan Document ex-

pressly requires that petitioners’ pension funds be held in a

“trust” exclusively for petitioners’ benefit. App. 60–61. The

Court’s statement that “the employer, not plan partici-

pants, receives any surplus left over after all of the benefits

are paid,” cf. ante, at 4, actually proves that a trust exists.

The reason the employer does not receive any residual until

“after all of the benefits are paid,” ibid., is because the Plan

Document provides petitioners an enforceable residual in-

terest, Record in No. 13–cv–2687, Doc. 107–1, at 75. It is

telling that the Court does not cite, let alone analyze, the

“contract” governing petitioners’ trust fund.

Last, the Court cites inapposite case law. It asserts that

“this Court has stated” that “plan participants possess no

equitable or property interest in the plan.” Ante, at 4 (citing

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

Cite as: 590 U. S. ____ (2020) 9

SOTOMAYOR, J., dissenting

LaRue v. DeWolff, Boberg & Associates, Inc., 552 U. S. 248

(2008)). But precedent has said no such thing. Quite the

opposite: Russell explained that defined-benefit-plan bene-

ficiaries have a “common interest” in the “financial integ-

rity” of their defined-benefit plan. 473 U. S., at 142, n. 9.

Neither Hughes nor LaRue suggests otherwise. Hughes

explained that a defined-benefit-plan beneficiary does not

have “a claim to any particular asset that composes a part

of the plan’s general asset pool.” 525 U. S., at 440. But that

statement concerned whether the beneficiaries had a legal

right to extra payments after the plan’s assets grew. Id., at

436–437. Whether a beneficiary has a legal claim to pay-

ment when a plan gains money says nothing about whether

a beneficiary has an equitable interest to restore assets

when a plan loses money. Hughes, in fact, invited a suit

like petitioners’: The Court suggested that the plaintiffs

could have prevailed had they “allege[d] that [the employer]

used any of the assets for a purpose other than to pay its

obligations to the Plan’s beneficiaries.” Id., at 442–443.

Equally telling is that Hughes resolved the beneficiaries’

breach-of-fiduciary claims on the merits without doubting

whether the plaintiffs had standing to assert them. See id.,

at 443–446; Steel Co. v. Citizens for Better Environment,

523 U. S. 83, 94–95 (1998) (explaining this Court’s inde-

pendent duty to assure itself of Article III standing).

LaRue is even less helpful to today’s Court. That case

involved a defined-contribution plan, not a defined-benefit

plan. 552 U. S., at 250. It was about remedies, not rights.

See id., at 256. And it stated that although “individual in-

juries” may occur from ERISA plan mismanagement, the

statutory provision at issue required that the remedy go to

the plan. Ibid. (discussing 29 U. S. C. §1132(a)(2)). LaRue

said nothing about standing and nothing about ERISA’s

10 THOLE v. U. S. BANK N. A.

SOTOMAYOR, J., dissenting

other statutory remedies.4 In fact, LaRue confirmed that

ERISA beneficiaries like petitioners may sue fiduciaries for

“ ‘any profit which would have accrued to the [plan] if there

had been no breach of trust,’ ” 552 U. S., at 254, n. 4, or

where “fiduciary breaches . . . impair the value of plan as-

sets,” id., at 256. Because petitioners bring those kinds of

claims, LaRue supports their standing.

B

Second, petitioners have standing because a breach of

fiduciary duty is a cognizable injury, regardless whether

that breach caused financial harm or increased a risk of

nonpayment.

1

A beneficiary has a concrete interest in a fiduciary’s loy-

alty and prudence. For over a century, trust law has pro-

vided that breach of “a fiduciary or trust relation” makes

the trustee “suable in equity.” Clews v. Jamieson, 182 U. S.

461, 480–481 (1901). That is because beneficiaries have an

enforceable “right that the trustee shall perform the trust

in accordance with the directions of the trust instrument

and the rules of equity.” Bogert & Bogert §861; see also

Restatement (Second) of Trusts §199 (trust beneficiary may

“maintain a suit” for breach of fiduciary duty).

That interest is concrete regardless whether the benefi-

ciary suffers personal financial loss. A beneficiary may sue

a trustee for restitution or disgorgement, remedies that rec-

ognize the relevant harm as the trustee’s wrongful gain.

Through restitution law, trustees are “subject to liability” if

they are unjustly enriched by a “ ‘violation of [a benefi-

ciary]’s legally protected rights,’ ” like a breach of fiduciary

——————

4 The Court expressly declined to address other relief like that provided

under §1132(a)(3), see LaRue, 552 U. S., at 252, a provision that petition-

ers invoke here.

Cite as: 590 U. S. ____ (2020) 11

SOTOMAYOR, J., dissenting

duty. Restatement (Third) of Restitution and Unjust En-

richment §1, and Comment a, p. 3 (2010). Similarly, dis-

gorgement allows a beneficiary to “stri[p]” the trustee of “a

wrongful gain.” Id., §3, Comment a, at 22. Our Court drew

on these principles almost 200 years ago when it stated that

a trustee’s breach of loyalty supports a cause of action

“without any further inquiry” into gain or loss to a trust or

its beneficiaries. Michoud v. Girod, 4 How. 503, 553 (1846);

see also, e.g., id., at 556–557 (noting this rule’s roots in

“English courts of chancery from an early day”); see also

Magruder v. Drury, 235 U. S. 106, 120 (1914) (under “the

principles governing the duty of a trustee,” it “makes no dif-

ference that the [trust] estate was not a loser in the trans-

action”); Bogert & Bogert §543 (similar). Put another way,

“traditional remedies” like “unjust enrichment . . . are not

contingent on a plaintiff ’s allegation of damages beyond the

violation of his private legal right.” Spokeo, 578 U. S., at

___–___ (THOMAS, J., concurring) (slip op., at 2–3).

Nor does it matter whether the beneficiaries receive the

remedy themselves. A beneficiary may require a trustee to

“restore” assets directly “to the trust fund.” Bogert &

Bogert §861; see also Restatement (Second) of Trusts §205.

In fact, because fiduciary duties are so paramount, the rem-

edy need not involve money at all. A beneficiary may sue

to “enjoin the trustee from committing a breach of trust”

and to “remove the trustee.” Id., §199.

Congress built on this tradition by making plan fiduciar-

ies expressly liable to restore to the plan wrongful profits

and any losses their breach caused, and by providing for in-

junctive relief to stop the misconduct and remove the

wrongdoers. See 29 U. S. C. §§1109, 1132(a)(2), (3). In do-

ing so, Congress rejected the Court’s statement that a

“trust-law analogy . . . does not” apply to “plaintiffs who al-

lege mismanagement of a defined-benefit plan.” Cf. ante, at

4. To the contrary, ERISA imposes “trust-like fiduciary

standards,” Varity Corp. v. Howe, 516 U. S. 489, 497 (1996),

12 THOLE v. U. S. BANK N. A.

SOTOMAYOR, J., dissenting

to “[r]espon[d] to deficiencies in prior law regulating [retire-

ment] plan fiduciaries” and to provide even greater protec-

tions for defined-benefit-plan beneficiaries, Harris Trust,

530 U. S., at 241–242; see also Spokeo, 578 U. S., at ___ (slip

op., at 9) (historical and congressionally recognized injuries

often support standing).

Given all that history and ERISA’s text, this Court itself

has noted, in the defined-benefit-plan context, “that when a

trustee” breaches “his fiduciary duty to the beneficiaries,”

the “beneficiaries may then maintain an action for restitu-

tion . . . or disgorgement.” Harris Trust, 530 U. S., at 250.

Harris Trust confirms that ERISA incorporated “[t]he com-

mon law of trusts” to allow defined-benefit-plan beneficiar-

ies to seek relief from fiduciary breaches. Ibid.; see also id.,

at 241–242 (noting that certain ERISA provisions “supple-

men[t] the fiduciary’s general duty of loyalty to the plan’s

beneficiaries”).5

2

The Court offers no reply to all the historical and statu-

tory evidence showing petitioners’ concrete interest in pru-

dent and loyal fiduciaries.

Instead, the Court insists again that “participants in a

defined-benefit plan are not similarly situated to the bene-

ficiaries of a private trust,” ante, at 4, and that the “com-

plaint did not plausibly and clearly claim that the alleged

mismanagement of the plan substantially increased the

——————

5 Curiously, today’s Court suggests that ERISA’s efforts to bolster

trust-law fiduciary duties actually degraded them instead. See ante, at

4 (justifying a narrow construction of ERISA protections because “trust

law informs but does not control interpretation of ERISA”). Yet the case

the Court cites, Varity Corp. v. Howe, 516 U. S. 489 (1996), relied on trust

law to establish the minimum obligations ERISA imposes on plan fidu-

ciaries. See id., at 506 (confirming that the “ERISA fiduciary duty in-

cludes [the] common law duty of loyalty”). Today’s Court mistakes the

floor for the ceiling. See ibid.; see also Harris Trust, 530 U. S., at 241–

242.

Cite as: 590 U. S. ____ (2020) 13

SOTOMAYOR, J., dissenting

risk that the plan and the employer would fail and be una-

ble to pay the plaintiffs’ future pension benefits,” ante, at 7.

The first observation is incorrect for the reasons stated

above. But even were the Court correct that petitioners’

rights do not sound in trust law, petitioners would still have

standing. The Court reasons that petitioners have an en-

forceable right to “monthly payments for the rest of their

lives” because their plan confers a “contractua[l] enti-

tle[ment].” Ante, at 2. Under that view, the plan also con-

fers contractual rights to loyal and prudent plan manage-

ment. See App. 60–61; 29 U. S. C. §§1104, 1109.

Thus, for the same reason petitioners could bring suit if

they did not receive payments from their plan, they could

bring suit if they did not receive loyalty and prudence from

their fiduciaries. After all, it is well settled that breach of

“a contract to act diligently and skil[l]fully” provides a

“groun[d] of action” in federal court. Wilcox v. Executors of

Plummer, 4 Pet. 172, 181–182 (1830). It is also undisputed

that “[a] breach of contract always creates a right of action,”

even when no financial “harm was caused.” Restatement

(First) of Contracts §328, and Comment a, pp. 502–503

(1932); see also Spokeo, 578 U. S., at ___–___ (THOMAS, J.,

concurring) (slip op., at 2–3) (“[C]ourts historically pre-

sumed that the plaintiff suffered a de facto injury merely

from having his personal, legal rights invaded” even with-

out any “allegation of damages”). Petitioners would thus

have standing even were they to accept the Court’s flawed

premise.

The Court’s second statement, that petitioners have not

alleged a substantial risk of missed payments, ante, at 7, is

orthogonal to the issues at hand. A breach-of-fiduciary-

duty claim exists regardless of the beneficiary’s personal

gain, loss, or recovery. In rejecting petitioners’ standing

and maintaining that “this suit would not change [petition-

ers’] monthly pension benefits,” ante, at 8, the Court fails to

14 THOLE v. U. S. BANK N. A.

SOTOMAYOR, J., dissenting

distinguish the different rights on which pension-plan ben-

eficiaries may sue. They have a right not just to their pen-

sion benefits, but also to loyal and prudent fiduciaries. See

Warth v. Seldin, 422 U. S. 490, 500 (1975) (the standing in-

quiry “turns on the nature and source of the claim as-

serted”). Petitioners seek relief tailored to the second cate-

gory, including restitution, disgorgement, and injunctive

remedies. Cf. Great-West Life & Annuity Ins. Co. v. Knud-

son, 534 U. S. 204, 215–216 (2002) (explaining the various

historical bases for ERISA’s remedies). The Court does not

even try to explain ERISA’s (or the Plan Document’s) text

imposing fiduciary duties, let alone this Court’s decision in

Harris Trust supporting petitioners’ standing. And even

though the Court briefly mentions that petitioners seek “in-

junctive relief, including replacement of the plan’s fiduciar-

ies,” ante, at 2, it offers no analysis on that issue. Put dif-

ferently, the Court denies petitioners standing to sue

without analyzing all their claims to relief.

With its focus on fiscal harm, the Court seems to suggest

that pecuniary injury is the sine qua non of standing. The

Court emphasizes that petitioners themselves have not

“sustained any monetary injury” apart from their trust

fund’s losses. Ante, at 2; see also ante, at 4.

But injury to a plaintiff ’s wallet is not, and has never

been, a prerequisite for standing. The Constitution permits

federal courts to hear disputes over nonfinancial injuries

like the harms alleged here. Spokeo, 578 U. S., at ___ (slip

op., at 9); see also, e.g., id., at ___–___ (THOMAS, J., concur-

ring) (slip op., at 2–3); Tennessee Elec. Power Co. v. TVA,

306 U. S. 118, 137–138 (1939).6 In Heckler v. Mathews, 465

——————

6 This Court has found standing in myriad cases involving noneco-

nomic injuries. Examples include the denial or threatened impairment

of: equal treatment, Adarand Constructors, Inc. v. Peña, 515 U. S. 200,

211 (1995); Northeastern Fla. Chapter, Associated Gen. Contractors of

America v. Jacksonville, 508 U. S. 656, 666 (1993); “truthful information

Cite as: 590 U. S. ____ (2020) 15

SOTOMAYOR, J., dissenting

U. S. 728 (1984), for instance, this Court recognized a plain-

tiff ’s standing to assert a “noneconomic” injury for discrim-

inatory distribution of his Social Security benefits, even

though he did not have “a substantive right to any particu-

lar amount of benefits.” Id., at 737, 739. Petitioners’ stand-

ing here is even sturdier: They assert a noneconomic injury

for unlawful management of their retirement plan and, un-

like the plaintiff in Heckler, petitioners do have a substan-

tive right to a particular amount of benefits. Cf. ante, at 2

(acknowledging that petitioners’ benefits are “vested” and

that payments are “legally and contractually” required).

None of this is disputed. In fact, the Court seems to con-

cede all this reasoning in a footnote. See ante, at 6, n. 1.

The Court appears to acknowledge that an ERISA benefi-

ciary’s noneconomic right to information from the fiduciar-

ies would support standing. See ibid. (citing 29 U. S. C.

§1132(a)(1)(A)). Yet the Court offers no reason to think that

a beneficiary’s noneconomic right to loyalty and prudence

from the fiduciaries is meaningfully different.

For its part, the concurrence attempts to fill the Court’s

gaps by adding that “[t]he fiduciary duties created by

ERISA are owed to the plan, not petitioners.” Ante, at 2

(opinion of THOMAS, J.). But this Court has already rejected

——————

concerning the availability of housing,” Havens Realty Corp. v. Coleman,

455 U. S. 363, 373 (1982); esthetic and recreational interests, Friends of

the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S.

167, 181–182 (2000); “information which must be publicly disclosed pur-

suant to a statute,” Federal Election Comm’n v. Akins, 524 U. S. 11, 21

(1998); one’s “personal, political, and professional reputation,” Meese v.

Keene, 481 U. S. 465, 473 (1987); and the right to speak, Spokeo, 578

U. S., at ___ (slip op., at 9) (citing Pleasant Grove City v. Summum, 555

U. S. 460 (2009)). This Court has even said that a for-profit business has

standing to assert religious injuries. See Burwell v. Hobby Lobby Stores,

Inc., 573 U. S. 682, 715, and n. 26 (2014). Today’s Court does not recon-

cile these cases with its novel financial-harm requirement; nor does the

Court explain why a breach of fiduciary duty is less concrete than the

injuries listed above.

16 THOLE v. U. S. BANK N. A.

SOTOMAYOR, J., dissenting

that view. Compare Varity Corp., 516 U. S., at 507 (“This

argument fails”), with id., at 516 (THOMAS, J., dissenting).

Nor is that argument persuasive on its own terms. The

concurrence relies on a compound prepositional phrase

taken out of context, collecting ERISA provisions saying

that a fiduciary acts “with respect to” a plan. See ante, at 2

(opinion of THOMAS, J.). Of course a plan fiduciary per-

forms her duties “with respect to a plan.” 29 U. S. C.

§1104(a)(1). After all, she manages the plan. §1102(a). But

she does so “solely in the interest” and “for the exclusive

purposes” of the plan’s “participants and beneficiaries.”

§§1103(a), (c)(1), 1104(a)(1).

In short, the concurrence gets it backwards. Congress did

not enact ERISA to protect plans as artificial entities. It

enacted ERISA (and required trusts in the first place) to

protect the plan “participants” and “their beneficiaries.”

§1001(b). Thus, ERISA fiduciary duties run where the stat-

ute says: to the participants and their beneficiaries.

C

Last, petitioners have standing to sue on their retirement

plan’s behalf.

1

Even if petitioners had no suable interest in their plan’s

financial integrity or its competent supervision, the plan it-

self would. There is no disputing at this stage that respond-

ents’ “mismanagement” caused the plan “approximately

$750 million in losses” still not fully reimbursed. Ante, at 2

(majority opinion). And even under the concurrence’s view,

respondents’ fiduciary duties “are owed to the plan.” Ante,

at 2 (opinion of THOMAS, J.). The plan thus would have

standing to sue under either theory discussed above.

The problem is that the plan is a legal fiction: Although

ERISA provides that a retirement plan “may sue . . . as an

entity,” 29 U. S. C. §1132(d)(1), someone must still do so on

Cite as: 590 U. S. ____ (2020) 17

SOTOMAYOR, J., dissenting

the plan’s behalf. Typically that is the fiduciary’s job. See

§1102(a)(1) (fiduciaries have “authority to control and man-

age the operation and administration of the plan”). But im-

agine a case like this one, where the fiduciaries refuse to

sue because they would be the defendants. Does the Con-

stitution compel a pension plan to let a fox guard the hen-

house?

Of course not. This Court’s representational standing

doctrine permits petitioners to sue on their plan’s behalf.

See Food and Commercial Workers v. Brown Group, Inc.,

517 U. S. 544, 557 (1996). This doctrine “rests on the prem-

ise that in certain circumstances, particular relationships

(recognized either by common-law tradition or by statute)

are sufficient to rebut the background presumption . . . that

litigants may not assert the rights of absent third parties.”

Ibid. (footnotes omitted). This is especially so where, as

here, there is “some sort of impediment” to the other party’s

“effective assertion of their own rights.” R. Fallon, J. Man-

ning, D. Meltzer, & D. Shapiro, Hart & Wechsler’s The Fed-

eral Courts and the Federal System 158 (6th ed. 2009); see

also Powers v. Ohio, 499 U. S. 400, 410–411 (1991).

The common law has long regarded a beneficiary’s repre-

sentational suit as a proper “basis for a lawsuit in English

or American courts.” Spokeo, 578 U. S., at ___ (slip op., at

9). When “the trustee cannot or will not” sue, a beneficiary

may do so “as a temporary representative of the trust.”

Bogert & Bogert §869. The common law also allows “the

terms of a trust” to “confer upon others the power to enforce

the trust,” giving that person “standing” to “bring suit

against the trustee.” Restatement (Third) of Trusts §94,

Comment d(1), at 7.

ERISA embraces this tradition. Sections 1132(a)(2) and

(a)(3) authorize participants and beneficiaries to sue “in a

representative capacity on behalf of the plan as a whole,”

Russell, 473 U. S., at 142, n. 9, so that any “recovery” aris-

ing from the action “inures to the benefit of the plan as a

18 THOLE v. U. S. BANK N. A.

SOTOMAYOR, J., dissenting

whole,” id., at 140. Perhaps for this reason, and adding to

the incongruity in today’s outcome, some Members of this

Court have insisted that lawsuits to enforce ERISA’s fidu-

ciary duties “must” be brought “in a representative capac-

ity.” Varity Corp., 516 U. S., at 516 (THOMAS, J., dissent-

ing) (internal quotation marks omitted).

Permitting beneficiaries to enforce their plan’s rights

finds plenty of support in our constitutional case law. Take

associational standing: An association may file suit “to re-

dress its members’ injuries, even without a showing of in-

jury to the association itself.” Food and Commercial Work-

ers, 517 U. S., at 552. All Article III requires is that a

member “ ‘would otherwise have standing to sue in their

own right’ ” and that “ ‘the interests [the association] seeks

to protect are germane to the organization’s purpose.’ ” Id.,

at 553. Petitioners’ suit here is the other side of the same

coin: The plan would have standing to sue in its own right,

and petitioners’ interest is to disgorge wrongful profits and

reimburse the trust for losses, thereby preserving trust as-

sets held for their exclusive benefit.

Next-friend standing is another apt analog. Long “ac-

cepted [as a] basis for jurisdiction,” this doctrine allows a

party to “appear in [federal] court on behalf of detained

prisoners who are unable . . . to seek relief themselves.”

Whitmore v. Arkansas, 495 U. S. 149, 162 (1990) (tracing

the doctrine’s roots to the 17th century). Here, of course,

petitioners’ plan cannot access the courts itself because the

parties the Court thinks should file suit (the fiduciaries) are

the defendants. Like a “next friend,” moreover, petitioners

are “dedicated to the best interests” of the party they seek

to protect, id., at 163, because the plan’s interests are peti-

tioners’ interests.7

——————

7 Other examples include guardians ad litem and, of course, trustees.

E.g., Sprint Communications Co. v. APCC Services, Inc., 554 U. S. 269,

Cite as: 590 U. S. ____ (2020) 19

SOTOMAYOR, J., dissenting

Congress was on well-established ground when it allowed

pension participants and beneficiaries to sue on their retire-

ment plan’s behalf.

2

The Court’s conflicting conclusion starts with inapposite

cases. It invokes Hollingsworth v. Perry, 570 U. S. 693, 708

(2013), reasoning that “to claim ‘the interests of others, the

litigants themselves still must have suffered an injury in

fact.’ ” Ante, at 4. Perry, a case about a California ballot

initiative, is a far cry from this one. Perry found that “pri-

vate parties” with no stake in the litigation “distinguishable

from the general interest of every citizen” were not proper

representatives of the State. 570 U. S., at 707, 710. If an-

ything, Perry supports petitioners here: This Court found

“readily distinguishable” other representational-standing

cases by underscoring their sound traditions. Id., at 711

(distinguishing assignee and next-friend standing).8 A tra-

ditional beneficiary-versus-trustee claim like petitioners’ is

exactly such a suit.

Next, the Court maintains that petitioners “have not

been legally or contractually assigned” or “appointed” to

——————

287 (2008) (noting in the Article III standing context that “federal courts

routinely entertain suits which will result in relief for parties that are

not themselves directly bringing suit,” such as when “[t]rustees bring

suits to benefit their trusts”); see also id., at 304–305, n. 2 (ROBERTS,

C. J., dissenting) (“Trustees, guardians ad litem, executors, and the like

make up a settled, continuous practice ‘of the sort traditionally amenable

to, and resolved by, the judicial process’ ”).

8 The Court cites two more cases: Gollust v. Mendell, 501 U. S. 115

(1991), and Craig v. Boren, 429 U. S. 190 (1976). But both endorsed ex-

pansive views of standing. See Gollust, 501 U. S., at 125–127 (allowing

indirect owners of a corporation to sue under federal securities laws);

Craig, 429 U. S., at 194–195 (holding that a plaintiff had representa-

tional standing to assert an equal protection claim on a business patron’s

behalf ). To the extent the Court suggests that a financial loss is neces-

sary (or that a breach of fiduciary duty is insufficient) for standing, that

is incorrect. See Part II–B, supra.

20 THOLE v. U. S. BANK N. A.

SOTOMAYOR, J., dissenting

represent the plan. Ante, at 5. Although a formal assign-

ment or appointment suffices for standing, it is not neces-

sary. See, e.g., Food and Commercial Workers, 517 U. S., at

552; Whitmore, 495 U. S., at 162. Regardless, Congress ex-

pressly and thereby legally assigned pension-plan partici-

pants and beneficiaries the right to represent their plan, in-

cluding in lawsuits where the other would-be

representative is the defendant. 29 U. S. C. §§1132(a)(2),

(3); see also, e.g., Restatement (Third) of Trusts §94, Com-

ment d(1), at 7 (trust terms may confer standing to sue the

trustee). ERISA was “primarily concerned with the possi-

ble misuse of plan assets, and with remedies that would

protect the entire plan.” Russell, 473 U. S., at 142; see also

id., at 140–142, nn. 8–9.9 Far from “ ‘automatically’ ” con-

ferring petitioners standing to sue or creating an injury

from whole cloth, cf. ante, at 5, ERISA assigns the right to

sue on the plan’s unquestionably cognizable harm: here, fi-

duciary breaches causing wrongful gains and hundreds of

millions of dollars in losses. So even under the Court’s

framing, it does not matter whether petitioners “sustained

any monetary injury,” ante, at 2, because their pension plan

did.

To support standing, a statute may (but need not)

legally designate a party to sue on another’s behalf. Be-

cause ERISA does so here, petitioners should be permitted

to sue for their pension plan’s sake.

——————

9 Neither Sprint, 554 U. S. 269, nor Vermont Agency of Natural Re-

sources v. United States ex rel. Stevens, 529 U. S. 765 (2000), is to the

contrary. Cf. ante, at 5. Both decisions undermine today’s result. See

Sprint, 554 U. S., at 280, 287 (noting in the Article III context that “ ‘na-

ked legal title’ ” has long permitted suit and that “federal courts routinely

entertain suits which will result in relief for parties that are not them-

selves directly bringing suit,” such as when “[t]rustees bring suits to ben-

efit their trusts”); Vermont Agency, 529 U. S., at 774 (showing that even

a partial statutory assignment grants constitutional standing to sue on

another’s behalf ).

Cite as: 590 U. S. ____ (2020) 21

SOTOMAYOR, J., dissenting

III

The Court also notes that “[e]ven if a defined-benefit plan

is mismanaged into plan termination, the federal [Pension

Benefit Guaranty Corporation] by law acts as a backstop

and covers the vested pension benefits up to a certain

amount and often in full.” Ante, at 8, n. 2. The Court then

suggests that the only way beneficiaries of a mismanaged

plan could sue is if their benefits were not “guaranteed in

full by the PBGC.” Ibid.

Those statements underscore the problem in today’s de-

cision. Whereas ERISA and petitioners’ Plan Document ex-

plicitly mandate that all plan assets be handled prudently

and loyally for petitioners’ exclusive benefit, the Court sug-

gests that beneficiaries should endure disloyalty, impru-

dence, and plan mismanagement so long as the Federal

Government is there to pick up the bill when “the plan and

the employer” “fail.” Ibid.

But the purpose of ERISA and fiduciary duties is to pre-

vent retirement-plan failure in the first place. 29 U. S. C.

§1001. In barely more than a decade, the country (indeed

the world) has experienced two unexpected financial crises

that have rocked the existence and stability of many em-

ployers once thought incapable of failing. ERISA deliber-

ately provides protection regardless whether an employer

is on sound financial footing one day because it may not be

so stable the next. See ibid.10

The Court’s references to Government insurance also

overlook sobering truths about the PBGC. The Government

Accountability Office recently relisted the PBGC as one of

the “High Risk” Government programs most likely to be-

come insolvent. See GAO, Report to Congressional Com-

mittees, High-Risk Series: Substantial Efforts Needed To

——————

10 This also explains why a material risk of loss is not a prerequisite for

standing, least of all for retirees relying on their retirement plan for in-

come. Cf. ante, at 7–8.

22 THOLE v. U. S. BANK N. A.

SOTOMAYOR, J., dissenting

Achieve Greater Progress on High-Risk Areas (GAO–19–

157SP, 2019) (GAO High-Risk Report). Noting the insol-

vency of defined-benefit plans that the PBGC insures and

the “significant financial risk and governance challenges

that the PBGC faces,” the GAO High-Risk Report warns

that “the retirement benefits of millions of American work-

ers and retirees could be at risk of dramatic reductions”

within four years. Id., at 56–57. At last count, the PBGC’s

“net accumulated financial deficit” was “over $51 billion”

and its “exposure to potential future losses for underfunded

plans” was “nearly $185 billion.” Id., at 267. Notably, the

GAO had issued these warnings before the current financial

crisis struck. Exchanging ERISA’s fiduciary duties for Gov-

ernment insurance would only add to the PBGC’s plight

and require taxpayers to bail out pension plans.

IV

It is hard to overstate the harmful consequences of the

Court’s conclusion. With ERISA, “the crucible of congres-

sional concern was misuse and mismanagement of plan as-

sets by plan administrators.” Russell, 473 U. S., at 141,

n. 8. In imposing fiduciary duties and providing a private

right of action, Congress “designed” the statute “to prevent

these abuses in the future.” Ibid. Yet today’s outcome en-

courages the very mischief ERISA meant to end.

After today’s decision, about 35 million people with de-

fined-benefit plans11 will be vulnerable to fiduciary miscon-

duct. The Court’s reasoning allows fiduciaries to misuse

pension funds so long as the employer has a strong enough

balance sheet during (or, as alleged here, because of ) the

misbehavior. Indeed, the Court holds that the Constitution

——————

11 See Dept. of Labor, Private Pension Plan Bulletin Historical

Tables and Graphs, 1975–2017 (Sept. 2019) (Table E4),

https: / /www.dol.gov / sites / dolgov / files / EBSA / researchers / statistics /

retirement - bulletins / private - pension - plan - bulletin - historical - tables -

and - graphs.pdf.

Cite as: 590 U. S. ____ (2020) 23

SOTOMAYOR, J., dissenting

forbids retirees to remedy or prevent fiduciary breaches in

federal court until their retirement plan or employer is on

the brink of financial ruin. See ante, at 7–8. This is a re-

markable result, and not only because this case is

bookended by two financial crises. There is no denying that

the Great Recession contributed to the plan’s massive losses

and statutory underfunding, or that the present pandemic

punctuates the perils of imprudent and disloyal financial

management.

Today’s result also disrupts the purpose of ERISA and the

trust funds it requires. Trusts have trustees and fiduciary

duties to protect the assets and the beneficiaries from the

vicissitudes of fortune. Fiduciary duties, especially loyalty,

are potent prophylactic rules that restrain trustees

“tempted to exploit [a] trust.” Bogert & Bogert §543. Con-

gress thus recognized that one of the best ways to protect

retirement plans was to codify the same fiduciary duties

and beneficiary-enforcement powers that have existed for

centuries. E.g., 29 U. S. C. §§1001(b), 1109, 1132. Along

those lines, courts once held fiduciaries to a higher stand-

ard: “Not honesty alone, but the punctilio of an honor the

most sensitive.” Meinhard v. Salmon, 249 N. Y. 458, 464,

164 N. E. 545, 546 (1928) (Cardozo, C. J.). Not so today.

Nor can petitioners take comfort in the so-called “regu-

latory phalanx” guarding defined-benefit plans from mis-

management. Ante, at 7. Having divested ERISA of en-

forceable fiduciary duties and beneficiaries of their right to

sue, the Court lists “employers and their shareholders,”

other fiduciaries, and the “Department of Labor” as parties

on whom retirees should rely. Ante, at 6–7. But there are

serious holes in the Court’s proffered line of defense.

The Court’s proposed solutions offer nothing in a case like

this one. The employer, its shareholders, and the plan’s co-

fiduciaries here have no reason to bring suit because they

either committed or profited from the misconduct. Recall

24 THOLE v. U. S. BANK N. A.

SOTOMAYOR, J., dissenting

the allegations: Respondents misused a pension plan’s as-

sets to invest in their own mutual funds, pay themselves

excessive fees, and swell the employer’s income and stock

prices. Nor is the Court’s suggestion workable in the mine

run of cases. The reason the Court gives for trusting em-

ployers and shareholders to look out for beneficiaries—“be-

cause the employers are entitled to the plan surplus and are

often on the hook for plan shortfalls,” ante, at 6—is what

commentators call a conflict of interest.12

Neither is the Federal Government’s enforcement power

a palliative. “ERISA makes clear that Congress did not in-

tend for Government enforcement powers to lessen the re-

sponsibilities of plan fiduciaries.” Central States, 472 U. S.,

at 578. The Secretary of Labor, moreover, signed a brief (in

support of petitioners) verifying that the Federal Govern-

ment cannot “monitor every [ERISA] plan in the country.”

Brief for United States as Amicus Curiae 26. Even when

the Government can sue (in a representational capacity, of

course), it cannot seek all the relief that a participant or

beneficiary could. Compare 29 U. S. C. §1132(a)(2) with

§1132(a)(3). At bottom, the Court rejects ERISA’s private-

enforcement scheme and suggests a preference that taxpay-

ers fund the monitoring (and perhaps the bailing out) of

pension plans. See ante, at 6–8, and n. 2.

Finally, in justifying today’s outcome, the Court discusses

attorney’s fees. Twice the Court underlines that attorneys

have a “$31 million” “stake” in this case. Ante, at 2, 3. But

no one in this litigation has suggested attorney’s fees as a

——————

12 E.g., Fischel & Langbein, ERISA’s Fundamental Contradiction: The

Exclusive Benefit Rule, 55 U. Chi. L. Rev. 1105, 1121 (1988). This con-

flict exists because, contrary to the Court’s assertion, the employer and

its shareholders are not “entitled to the plan surplus” until after the plan

terminates and after all vested benefits have been paid from the trust

fund’s assets. Compare ante, at 6, with 29 U. S. C. §1103(c)(1) (ERISA

plan assets “shall never inure to the benefit of any employer” while the

trust exists); see also App. 61; Record in No. 13–cv–2687 (D Minn.), Doc.

107–1, p. 75.

Cite as: 590 U. S. ____ (2020) 25

SOTOMAYOR, J., dissenting

basis for standing. As the Court appears to admit, its focus

on fees is about optics, not law. See ante, at 3 (acknowledg-

ing that attorney’s fees do not advance the standing in-

quiry).

The Court’s aside about attorneys is not only misplaced,

it is also mistaken. Missing from the Court’s opinion is any

recognition that Congress found private enforcement suits

and fiduciary duties critical to policing retirement plans;

that it was after this litigation was initiated that respond-

ents restored $311 million to the plan in compliance with

statutorily required funding levels; and that counsel justi-

fied their fee request as a below-market percentage of the

$311 million employer infusion that this lawsuit allegedly

precipitated.

* * *

The Constitution, the common law, and the Court’s cases

confirm what common sense tells us: People may protect

their pensions. “Courts,” the majority surmises, “some-

times make standing law more complicated than it needs to

be.” Ante, at 8. Indeed. Only by overruling, ignoring, or

misstating centuries of law could the Court hold that the

Constitution requires beneficiaries to watch idly as their

supposed fiduciaries misappropriate their pension funds. I

respectfully dissent.