Petition for Writ of Certiorari — The Capital Group Companies, Inc., et al., Petitioners v. Cathy Pover

APPENDIX

TABLE OF CONTENTS

Appendix A

Court of appeals opinion,

July 30, 2026 ........................... 1a

Appendix B

District court minute order

denying Defendants’ motion

to compel arbitration and

dismiss the complaint,

Aug. 12, 2024 ......................... 37a

Appendix C

District court tentative

ruling denying Defendants’

motion to compel arbitration

and dismiss the complaint,

Aug. 9, 2024 ........................... 39a

Appendix D

29 U.S.C. § 1109 .................... 68a

Appendix E

29 U.S.C. § 1132(a) ................ 69a

Appendix F

Capital Retirement Savings

Plan, Amendment No. 1,

Jan. 27, 2020.......................... 72a

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APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CATHY POVER, individually and on behalf of all

others similarly situated,

Plaintiff - Appellee,

v.

THE CAPITAL GROUP

COMPANIES, INC.; THE

BOARD OF DIRECTORS

OF THE CAPITAL

GROUP COMPANIES,

INC., and its members;

and THE U.S. RETIREMENT BENEFITS

COMMITTEE OF THE

CAPITAL GROUP COMPANIES INC., and its

members, Does 1−30,

Defendants - Appellants.

No. 24-5298

D.C. No.

2:23-cv-09657GW-PVC

OPINION

Appeal from the United States District Court

for the Central District of California

George H. Wu, District Judge, Presiding

Argued and Submitted August 11, 2025

Pasadena, California

Filed July 30, 2026

2a

Before: Jacqueline H. Nguyen, Danielle J. Forrest,

and Lawrence VanDyke, Circuit Judges.

Opinion by Judge Forrest;

Dissent by Judge VanDyke

SUMMARY*

ERISA/ARBITRATION

The panel affirmed the district court’s denial of

defendants’ motion to compel arbitration in a case in

which Cathy Pover sued her former employer, The

Capital Group Companies, Inc., and its fiduciaries on

behalf of her employer’s retirement-savings plan, The

Capital Retirement Savings Plan (the Plan), alleging

that the fiduciaries mismanaged the Plan’s

investments.

The Plan is covered by the Employee Retirement

Income Security Act of 1974 (ERISA), which permits

plan participants to seek relief on a plan’s behalf for

breach of the duties owed by the plan’s fiduciaries.

The Plan contract included an arbitration

requirement and a waiver by plan participants of any

claims brought on “a class, collective, or

representative basis.”

* This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the

reader.

3a

The panel considered the interaction between

ERISA, which entitles plan participants to sue for

mismanagement of their retirement plan, and the

Federal Arbitration Act (FAA), which requires courts

to enforce valid agreements to arbitrate. At the

intersection of these statutes is the judicially created

effective-vindication

doctrine

that

renders

unenforceable arbitration agreements that prevent

the vindication of statutorily protected rights and

remedies.

Because the Plan’s waiver provision forbids Pover

from asserting her rights under ERISA to sue as a

representative of the Plan for Plan-wide relief, the

panel agreed with the district court that the waiver is

unenforceable

under

the

effective-vindication

doctrine. Pover alleges fiduciary breaches that fall

squarely within the category of duties that ERISA

§ 409 imposes on plan fiduciaries, and under ERISA

§ 502(a)(2), Pover is entitled to bring an action on

behalf of the Plan to recover any resulting losses as

well as such other equitable or remedial relief as the

court

may

deem

appropriate.

The

Plan’s

representative-action waiver prevents Pover from

enforcing her substantive rights under ERISA

because her breach-of-fiduciary-duty claims can only

be brought in a representative capacity. Accordingly,

the waiver is unenforceable under the effectivevindication doctrine.

Addressing the severability of the waiver and

arbitration provisions, the panel concluded that

Pover’s breach-of-fiduciary duty claims must be

adjudicated in court rather than arbitration because

the Plan’s waiver provision expressly provides that if

it “is found to be unenforceable by a court of competent

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jurisdiction, then any claim on a class, collective, or

representative basis shall be filed and adjudicated in

a court of competent jurisdiction, and not in

arbitration.”

Dissenting, Judge VanDyke wrote that the

majority errs twice over in finding the arbitration

clause unenforceable. On the merits, he would hold

that the bar on “representative” suits in the

arbitration clause’s class-action waiver does not refer

to third-party suits on behalf of the Plan. When read

in context, that phrase refers to class action or

collective “representative” suits only, not principalagent representative suits like section 502(a)(2)

ERISA claims.

But the panel should not have even reached the

issue of arbitrability because the parties expressly

agreed to allow an arbitrator to decide threshold

questions of arbitrability, expressing their desire to

keep courts out of this dispute. Although Capital

failed to make that argument before the district court,

its failure to do so falls squarely within the exceptions

to waiver. Judge VanDyke would have waived waiver

and sent the question of arbitrability to the arbitrator.

COUNSEL

Charles H. Field Jr. (argued), Hilary R. Rosenthal,

and Myounghee Choung, Sanford Heisler Sharp

McKnight LLP, La Jolla, California; David B.

McNamee, Kristi Stahnke McGregor, and Kevin H.

Sharp, Sanford Heisler Sharp McKnight LLP,

Nashville, Tennessee; Sharon Kim, Sanford Heisler

Sharp McKnight LLP, New York, New York;

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Hampton M. Watson, Sanford Heisler Sharp

McKnight LLP, Washington, D.C.; for PlaintiffAppellee.

Parker A. Rider-Longmaid (argued) and Shay

Dvoretzky, Skadden Arps Slate Meagher & Flom LLP,

Washington, D.C.; Michael S. Hines, Mary E.

Grinman, and James R. Carroll, Skadden Arps Slate

Meagher & Flom LLP, Boston, Massachusetts;

Jeremy Patashnik, Skadden Arps Slate Meagher &

Flom LLP, New York, New York; Jason D. Russell,

Skadden Arps Slate Meagher & Flom LLP, Los

Angeles, California; for Defendants-Appellants.

Leah M. Nicholls, Public Justice PC, Washington,

D.C., for Amicus Curiae Public Justice.

OPINION

FORREST, Circuit Judge:

Cathy Pover sued her former employer, The

Capital Group Companies, Inc., and its fiduciaries on

behalf of her employer’s retirement-savings plan for

the fiduciaries’ mismanagement of the plan’s

investments. The plan is covered by the Employee

Retirement Income Security Act of 1974 (ERISA),

which permits plan participants to seek relief on a

plan’s behalf for breach of the duties owed by the

plan’s fiduciaries. However, the plan contract

included an arbitration requirement and a waiver by

plan participants of any claims brought on “a class,

collective, or representative basis.” Because this

waiver provision forbids Pover from asserting her

rights under ERISA to sue as a representative of the

plan for plan-wide relief, we agree with the district

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court that the waiver is unenforceable under the

effective-vindication doctrine, and we affirm the

district court’s denial of defendants’ motion to compel

arbitration.

BACKGROUND

A. The Plan

Capital Group is a global asset manager that

sponsors a retirement plan for its current and former

employees known as The Capital Retirement Savings

Plan (Plan). The Plan allows each participant to

maintain an individual account funded by

contributions from each participant and Capital

Group, as well as the participant’s investment

earnings. The participants may direct how their

individual accounts are invested by selecting from a

menu of investment options provided by the Plan.

Capital Group collects a transaction fee from the

investment funds included in the Plan’s menu.

The Plan is a “defined contribution plan.” The

Supreme Court has explained that “a ‘defined

contribution plan’ or ‘individual account plan’

promises the participant the value of an individual

account at retirement, which is largely a function of

the amounts contributed to that account and the

investment performance of those contributions.”

LaRue v. DeWolff, Boberg & Assocs., Inc., 552 U.S.

248, 250 n.1 (2008). A “defined benefit plan,” in

contrast, “promises the participant a fixed level of

retirement income, which is typically based on the

employee’s years of service and compensation.” Id.

While defined-benefit plans were once “the norm,”

defined-contribution plans have become the leading

form of private retirement-plan offerings. See id. at

255 (citation omitted).

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The Plan is governed by ERISA and the terms of

its Plan Document. According to the Plan Document,

the Administrative Committee serves as the Plan’s

fiduciary and may amend or modify the Plan. As

relevant here, the Committee amended the Plan

before this litigation by adding two provisions related

to dispute resolution: (1) an arbitration requirement

and (2) a waiver of class, collective, and representative

actions. The arbitration requirement dictates that

“[a]ny claim, controversy or alleged breach or

violation of law that arises out of or relates in any way

to the Plan or a claimant’s participation in the Plan

and seeks a remedy, ruling or judgment of any kind

against the Plan” must be resolved in arbitration. And

the waiver provision states:

A Participant, former Participant, or

Beneficiary must bring any dispute in

arbitration on an individual basis only, and

not on a class, collective or representative

basis and must waive the right to commence,

be a party to, or be an actual or putative class

member of any class, collective, or

representative action arising out of or relating

to the Plan, including, but not limited to, any

claims related to the Plan.

The waiver also specifies that if it “is found to be

unenforceable by a court of competent jurisdiction,

then any claim on a class, collective, or representative

basis shall be filed and adjudicated in a court of

competent jurisdiction, and not in arbitration.”

B. The Lawsuit

Pover sued Capital Group, the Committee,

Capital Group’s Board of Directors, and other

fiduciaries responsible for controlling and managing

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the Plan’s investments (hereinafter, collectively,

Capital Group). She alleged that Capital Group

breached its fiduciary duties to the Plan by retaining

certain investment options for participants despite

their poor performance. Pover further alleged that

Capital Group knew certain investment funds were

underperforming but retained them in its offerings to

collect the substantial transaction fees generated by

the funds. She asserted that Capital Group’s failure to

remove these funds from the Plan’s investment menu

violated its duties of prudence and loyalty to the Plan,

and that Capital Group failed to monitor its delegees,

further harming the Plan.

Pover sued Capital Group “in a representative

capacity on behalf of the Plan . . . , seeking appropriate

relief . . . to protect the interests of the entire Plan.”

She sought several forms of plan-wide monetary and

equitable relief provided under ERISA. Among these,

declarations that the Capital Group fiduciaries

breached their duties owed to the Plan and “are

personally liable to make good to the Plan”;

“restitution and disgorgement”; and an order

(1) requiring the Capital Group’s fiduciaries to pay

“the losses resulting from each breach of fiduciary

duty and to restore to the Plan” any lost profits,

(2) removing Plan fiduciaries found to have breached

their duties and enjoining them from future

violations, (3) “reform[ing] the Plan to include only

prudent investments,” and (4) granting all “other

equitable or remedial relief the Court deems

appropriate.”

Capital Group moved to compel arbitration under

the Federal Arbitration Act (FAA), asserting that

Pover is bound by the Plan’s arbitration requirement.

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Pover opposed Capital Group’s motion, arguing that

the Plan’s representative-action waiver was

unenforceable

under

the

effective-vindication

doctrine, and arbitration was thus not required,

because the waiver foreclosed her ability to represent

the Plan and pursue plan-wide relief on its behalf,

undermining her rights under ERISA. Pover also

argued that neither she nor the Plan had agreed to

arbitrate future claims against Capital Group.

Finally, Pover contended that the arbitration

provision is unconscionable and non-severable.

The district court denied Capital Group’s motion

to compel arbitration. It agreed that the Plan’s

representative-action waiver could not be enforced

because it prospectively waived Pover’s substantive

rights and remedies under ERISA. The district court

explained that ERISA creates a statutory cause of

action allowing plan participants to sue on behalf of

their plan and recover plan-wide monetary and

equitable relief. The court reasoned that Pover’s

action was “necessarily a representative action

seeking plan-wide recovery” and that enforcing the

representative-action waiver would prevent her from

“bring[ing] any of her claims in a representative

capacity on behalf of the Plan.” Therefore, it held that

the waiver was unenforceable. It also held that the

waiver was expressly non-severable because it

required any collective or representative claim to

proceed in court if found unenforceable. Capital Group

appealed.

DISCUSSION

We have jurisdiction to review the district court’s

denial of a motion to compel arbitration under 9

U.S.C. § 16(a)(1). We review the district court’s

10a

decision and its interpretation of ERISA de novo.

Blair v. Rent-A-Center, Inc., 928 F.3d 819, 824 (9th

Cir. 2019); Stand Up for California! v. U.S. Dep’t of

the Interior, 959 F.3d 1154, 1158 (9th Cir. 2020). To

promote uniformity, we interpret the language of

ERISA documents as a matter of federal common law

rather than state law. Mull v. Motion Picture Indus.

Health Plan, 41 F.4th 1120, 1130 n.8 (9th Cir. 2022).

This case requires us to consider the interaction

between two federal statutes: ERISA, which entitles

plan participants to sue for mismanagement of their

retirement plan, and the FAA, which requires courts

to enforce valid agreements to arbitrate. At the

intersection of these statutes is the judicially created

effective-vindication

doctrine

that

renders

unenforceable arbitration agreements that prevent

the vindication of statutorily protected rights and

remedies. We begin our analysis by explaining these

background legal principles. We then apply them to

determine whether the Plan’s representative-action

waiver is enforceable. Because we conclude that the

waiver is not enforceable under the effectivevindication doctrine, we need not address Pover’s

remaining challenges to arbitration.

A. Legal Principles

1. ERISA

“ERISA is a comprehensive and reticulated

statute, the product of a decade of congressional study

of the Nation’s private employee benefit system.”

Great-W. Life & Annuity Ins. Co. v. Knudson, 534 U.S.

204, 209 (2002) (internal quotation marks and citation

omitted). In this expansive statutory system, two

ERISA sections work together to provide participants

in ERISA-governed plans with a federal cause of

11a

action to enforce the duties owed to the plan by its

fiduciaries. See Mass. Mut. Life Ins. Co. v. Russell, 473

U.S. 134, 139–40, 142 & n.9 (1985); Platt v. Sodexo,

S.A., 148 F.4th 709, 721 (9th Cir. 2025).

First, § 409(a) imposes liability on fiduciaries who

breach their duties to the plan and outlines the

remedies available. See 29 U.S.C. § 1109(a). The

statute provides:

Any person who is a fiduciary with respect to

a plan who breaches any of the

responsibilities, obligations, or duties imposed

upon fiduciaries by this subchapter shall be

personally liable to make good to such plan

any losses to the plan resulting from each such

breach, and to restore to such plan any profits

of such fiduciary which have been made

through use of assets of the plan by the

fiduciary, and shall be subject to such other

equitable or remedial relief as the court may

deem appropriate, including removal of such

fiduciary.

Id. “[T]he principal statutory duties imposed on

[fiduciaries] relate to the proper management,

administration, and investment of fund assets, the

maintenance of proper records, the disclosure of

specific information, and the avoidance of conflicts of

interest.” Russell, 473 U.S. at 142–43.

Second, § 502(a)(2) creates the enforcement

mechanism. See 29 U.S.C. § 1132(a)(2). It provides

that “[a] civil action may be brought . . . by the

Secretary [of Labor], or by a participant, beneficiary

or fiduciary for appropriate relief under” § 409(a). Id.

“Section 502(a)(2) thus acts as the vehicle for plan

12a

participants to obtain the relief made available by

§ 409(a).” Platt, 148 F.4th at 721.

The Supreme Court has examined how these

ERISA sections operate for breach-of-fiduciary-duty

claims brought by both defined-benefit and definedcontribution plan participants. Russell, 473 U.S. at

136; LaRue, 552 U.S. at 252–56. And it has made clear

that, in both contexts, plaintiffs bringing a claim

under § 502(a)(2) proceed on the plan’s behalf.

Russell, 473 U.S. at 142 n.9 (“[A]ctions for breach of

fiduciary duty [under § 502(a)(2) are] brought in a

representative capacity on behalf of the plan as a

whole.”); LaRue, 552 U.S. at 253 (explaining that

§ 502(a)(2) “authorizes the Secretary of Labor as well

as plan participants, beneficiaries, and fiduciaries, to

bring actions on behalf of a plan”).

Massachusetts Mutual Life Insurance Co. v.

Russell dealt with a defined-benefit plan. There, a

participant in an ERISA-backed employee-benefits

plan sued a plan fiduciary under § 502(a)(2) and

sought “extra-contractual compensatory or punitive

damages caused by improper or untimely processing”

of her medical-benefit claim. 473 U.S. at 136. The plan

participant contended that the fiduciaries’ delayed

processing of her individual claim caused actionable

harm. See id. at 136–38. The Supreme Court held that

§ 502(a)(2) precluded such individualized relief: “A

fair contextual reading of the statute makes it

abundantly clear that its draftsmen were primarily

concerned with the possible misuse of plan assets, and

with remedies that would protect the entire plan,

rather than with the rights of an individual

beneficiary.” Id. at 142 (emphasis added). The Court

further noted that “the principal statutory duties”

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that § 409(a) imposes on fiduciaries are those

“relate[d] to the proper management, administration,

and investment of fund assets, the maintenance of

proper records, the disclosure of specified information,

and the avoidance of conflicts of interest.” Id. at 142–

43. Thus, “the entire text of § 409(a)” persuaded the

Court “that Congress did not intend that section to

authorize relief except for the plan itself.” Id. at 144.

Thirty years later, the Supreme Court revisited

§ 502(a)(2) in the context of a defined-contribution

plan. LaRue, 552 U.S. at 250–51. In LaRue v. DeWolff,

Boberg & Associates, Inc., a retirement-plan

participant alleged that a fiduciary had failed to make

changes that he directed to his individual investment

portfolio, “‘deplet[ing]’ his interest in the [p]lan” and

“amount[ing] to a breach of fiduciary duty under

ERISA.” Id. at 251. The plan participant sued seeking

“make-whole” monetary recovery for the alleged

breach. Id.

The Supreme Court held that the misconduct the

plan participant alleged concerning the fiduciary’s

failure to maximize the value of his investment

account “f[ell] squarely within th[e] category” of

fiduciary duties owed to the plan that are addressed

in § 409(a), id. at 253, because “trustees are

chargeable with any profit which would have accrued

to the trust estate if there had been no breach of

trust,” id. at 253 n.4 (citation modified). In doing so,

the Court distinguished its previous language in

Russell, which had recognized that ERISA’s

“draftsmen were primarily concerned . . . with

remedies that would protect the entire plan.” Id. at

254 (quoting Russell, 473 U.S. at 142). The Court

explained that “Russell’s emphasis on protecting the

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‘entire plan’ from fiduciary misconduct reflect[ed] the

former landscape of employee benefit plans,” which

was dominated by defined-benefit plans under which

participants’ individual entitlement to benefits was

not threatened unless fiduciary misconduct

“risk[s] . . . default by the entire plan.” Id. at 254–55.

The Court also clarified that in the definedcontribution-plan context, “fiduciary misconduct need

not threaten the solvency of the entire plan to reduce

[individual] benefits below the amount that

participants would otherwise receive.” Id. at 255–56.

For defined-contribution plans, “[w]hether a fiduciary

breach diminishes plan assets payable to all

participants and beneficiaries, or only to persons tied

to particular individual accounts, it creates the kind

of harms that concerned” ERISA’s draftsmen, making

a § 502(a)(2) claim appropriate. Id. at 256. That is,

LaRue “recognized that Section 409(a) protects

against breaches of fiduciary duty involving the

management of assets within defined contribution

plans,” regardless of whether the injury is felt at the

plan level or at the individual-account level. Cedeno v.

Sasson, 100 F.4th 386, 399 (2d Cir. 2024). In either

scenario, the plaintiff-participant proceeds on behalf

of the plan and the remedies afforded by ERISA

benefit the plan. LaRue, 552 U.S. at 253–56; see also

Russell, 473 U.S. at 142 n.9; Munro v. Univ. of S. Cal.,

896 F.3d 1088, 1093 (9th Cir. 2018) (“[T]he [LaRue]

Court made clear that it had not reconsidered its

longstanding recognition that it is the plan, and not

the individual beneficiaries and participants, that

benefit from a winning claim for breach of fiduciary

duty, even when the plan is a defined contribution

plan.”).

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2. FAA

Congress enacted the FAA in 1925 as a “response

to widespread judicial hostility to arbitration.” Am.

Express Co. v. Italian Colors Rest., 570 U.S. 228, 232

(2013). The FAA established “a liberal federal policy

favoring arbitration agreements.” Moses H. Cone

Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24

(1983). It provides that “[a] written provision in

any . . . contract evidencing a transaction involving

commerce to settle by arbitration a controversy

thereafter arising out of such contract or

transaction . . . shall be valid, irrevocable, and

enforceable, save upon such grounds as exist at law or

in equity for the revocation of any contract.” 9 U.S.C.

§ 2.

Consistent with its underlying purpose, the FAA’s

“mandate is to enforce arbitration agreements,”

Viking River Cruises, Inc. v. Moriana, 596 U.S. 639,

653 (2022) (citation modified), and to protect parties’

choices for where and under what procedures to

resolve their disputes, id. (“[A]n arbitration

agreement is ‘a specialized kind of forum-selection

clause that posits not only the situs of suit but also the

procedure to be used in resolving the dispute.’”

(quoting Scherk v. Alberto-Culver Co., 417 U.S. 506,

519 (1974))). But there is an exception for arbitration

agreements that purport to waive substantive rights

and remedies. See id. This exception is known as the

effective-vindication doctrine. Italian Colors, 570 U.S.

at 235.

3. Effective-Vindication Doctrine

An arbitration agreement “does not alter or

abridge substantive rights; it merely changes how

those rights will be processed.” Viking River Cruises,

16a

596 U.S. at 653. Indeed, “[b]y agreeing to arbitrate a

statutory claim, a party does not forgo the substantive

rights afforded by the statute; it only submits to their

resolution in an arbitral, rather than a judicial,

forum.” Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc., 473 U.S. 614, 628 (1985). Thus, where

“a provision in an arbitration agreement forbid[s] the

assertion of certain statutory rights,” preventing the

vindication of those rights, courts will invalidate the

provision “on ‘public policy’ grounds.”1 Italian Colors,

570 U.S. at 235–36.

We recently joined several of our sister circuits in

holding that “arbitration provisions preventing

individuals from obtaining the plan-wide relief

available under § 409(a) violate the effectivevindication doctrine.” Platt, 148 F.4th at 721; see id.

at 721–22 (collecting cases). Platt v. Sodexo, S.A.

involved an arbitration provision in an ERISAgoverned health-insurance plan that “prohibit[ed]

claims brought ‘as a plaintiff or class member in any

purported class or representative proceeding.’” Id. at

715. The plaintiff-employee sued his employer for

breach of fiduciary duties in violation of § 409(a), and

we considered whether the plan’s arbitration

provision violated the effective-vindication doctrine by

1 The Supreme Court has discussed with approval the effective-

vindication doctrine and repeatedly recognized that arbitration

provisions may not prevent a party from effectively vindicating

statutory rights and securing statutory remedies. See, e.g., Italian Colors, 570 U.S. at 235–36; see also Cedeno, 100 F.4th at 396

(collecting cases); Harrison v. Envision Mgmt. Holding, Inc. Bd.

of Dirs., 59 F.4th 1090, 1098 (10th Cir. 2023) (“[T]he Supreme

Court has repeatedly recognized the existence of the effective

vindication exception.”). But the Court has yet to invalidate an

arbitration provision based on this doctrine.

17a

preventing the employee from obtaining the only

relief afforded by § 409(a)—relief for the plan. Id. at

714– 15.

We began our analysis by explaining that the

effective-vindication doctrine prevents enforcement of

an arbitration provision “if it ‘operate[s] as a

prospective waiver of a party’s right to pursue

statutory remedies,’ including a prohibition on ‘the

assertion of certain statutory rights.’” Id. at 721

(alteration in original) (quoting Italian Colors, 570

U.S. at 235–36). We then addressed the same two

ERISA sections at play here, confirming that because

§ 409(a) “provides relief ‘singularly to the plan’ rather

than an individual plaintiff, § 502(a)(2) claims

asserting breach of fiduciary duty actionable under

§ 409(a) are understood as claims ‘brought in a

representative capacity on behalf of the plan as a

whole.’” Id. (quoting Russell, 473 U.S. at 142 & n.9).

And we concluded that because the arbitration

provision prohibited claims brought “in any . . .

representative proceeding,” it was unenforceable

because it precluded the plaintiff “from bringing

claims in a representative capacity on the Plan’s

behalf” and “from obtaining the plan-wide relief

available under § 409(a).” Id. at 715, 721.

B. Application

With this legal backdrop, we consider whether the

Plan’s representative-action waiver violates the

effective-vindication doctrine.2

2 Capital Group argues, for the first time on appeal, that the par-

ties delegated questions of arbitrability to the arbitrator. Pover

contends that Capital Group forfeited this argument by not raising it in the district court. While we have discretion to ignore a

party’s forfeiture in certain circumstances, see Ruiz v. Affinity

18a

1. Representative-Action Waiver

Pover’s complaint makes clear that she seeks to

represent the Plan and to pursue the full extent of

plan-wide relief available under ERISA. The

complaint cites § 502(a)(2), noting that the statute

“authorizes any participant or beneficiary of the Plan

to bring an action individually on behalf of the Plan to

enforce a breaching fiduciary’s liability to the plan”

under § 409(a). And it states that Pover seeks to “act[]

in this representative capacity.”

The complaint also outlines a spectrum of both

monetary recovery and equitable remedies sought

that would necessarily affect the entire Plan. For

example, Pover seeks a court order requiring that the

breaching fiduciaries “make good to the Plan as a

whole the losses resulting from each breach of

fiduciary duty and to restore to the Plan any profits

resulting from each breach.” And as equitable

remedies, Pover requests restitution, disgorgement,

removal of breaching fiduciaries, reformation of the

Plan, and “such other equitable or remedial relief as

the Court deems appropriate.” The requested relief

can only be interpreted as seeking recovery that would

“inure[] to the benefit of the [P]lan as a whole.” See

Russell, 473 U.S. at 140; see also LaRue, 552 U.S. at

253–54.

To determine whether the representative-action

waiver bars Pover’s claims, we must answer two

questions: (1) whether the waiver prevents Pover

from bringing claims on behalf of the Plan and

(2) whether ERISA limits a participant in a definedLogistics Corp., 667 F.3d 1318, 1322 (9th Cir. 2012), we decline

to do so here.

19a

contribution plan to seeking monetary recovery

related only to her individual account.

i.

The Plan’s waiver provision prohibits current and

former plan participants, including Pover, from

“bring[ing] any dispute . . . on a class, collective or

representative basis.” Participants may bring

disputes “on an individual basis only.” Capital Group

argues that “representative,” as used in this provision,

refers only to collective actions, not to actions brought

by a plan participant on behalf of the Plan. Capital

Group is correct that the Supreme Court has

recognized that the word “representative” has two

different meanings: one referring to a plaintiff’s

statutory authority to sue on behalf of an absent

principal, and the other referring to a plaintiff’s

representation of a group of potential claimants.

Viking River Cruises, 596 U.S. at 648. We have held

that § 502(a)(2) claims asserting breach of fiduciary

duty are always “representative” in the first sense

because the participant-plaintiff “seeks recovery only

for injury done to the plan.” Munro, 896 F.3d at 1092–

93 (citing LaRue, 552 U.S. at 256). Consistent with the

Supreme Court’s guidance, Munro recognized that

even though “the cause of action” under § 502(a)(2)

“belong[s] to the individual plaintiff,” id. at 1093

(alteration in original) (quoting Comer v. Micor, Inc.,

436 F.3d 1098, 1103 (9th Cir. 2006)), the relief

afforded by ERISA benefits the plan, id. at 1094; see

also Hawkins v. Cintas Corp., 32 F.4th 625, 632 (6th

Cir. 2022) (following Munro); Williams v. Shapiro, 161

F.4th 1313, 1322 (11th Cir. 2025).

Thus, the representative nature of Pover’s claim

is clear. The remaining question is simply how to

20a

interpret “representative,” as used in the waiver. On

this, our decision in Platt controls. The arbitration

provision there prohibited “any purported class or

representative proceeding.” Platt, 148 F.4th at 715.

We held that language to be a “representative action

waiver” that prevented the plaintiff “from bringing

claims in a representative capacity on the Plan’s

behalf.” Id. at 721. There is no meaningful difference

between the prohibition against “any purported class

or representative proceeding” in Platt, and the

prohibition against any claim brought on a “class,

collective or representative basis” here. See id. at 715.

If the former prevents a plaintiff from pursuing those

“remedies that were specifically authorized by

Congress,” in violation of the effective-vindication

doctrine, then so does the latter.3 See id. at 721

(quoting Harrison v. Envision Mgmt. Holding, Inc.

Bd. of Dirs., 59 F.4th 1090, 1107 (10th Cir. 2023)).

ii.

Relying on LaRue, Capital Group argues that a

defined-contribution

plan

participant

may

nevertheless recover only those monetary losses

suffered by her individual account, plus other

appropriate equitable relief, which is all recoverable

in individual arbitration under the Plan’s arbitration

provisions. Capital Group misunderstands both

LaRue and ERISA.

3 We agree with our dissenting colleague that Platt does not “hold

that every arbitration agreement provision with somewhat comparable language necessarily bars ERISA suits on behalf of a

plan and is therefore invalid under the effective-vindication doctrine.” Dissent at 31. But we disagree that the difference between

the words of the waiver provisions at issue in Platt and here is

sufficient to warrant a different outcome.

21a

LaRue held that a participant in a definedcontribution plan can bring a claim under § 502(a)(2)

even when the alleged fiduciary breach impacted only

her individual account. 552 U.S. at 256. But LaRue

did not, as Capital Group suggests, limit plaintiffs

participating in defined-contribution plans to

recovering losses suffered only by their individual

accounts. Nor did LaRue “suggest that Section

502(a)(2) allows individualized relief for injuries that

are felt at the plan level.” Cedeno, 100 F.4th at 399.

Just the opposite. LaRue explained, consistent with

§ 409(a)’s plan-oriented protections, that participants

in defined-contribution plans can bring a § 502(a)(2)

claim to recover for financial harm suffered plan-wide

or by individual accounts because both are plan

injuries. See 552 U.S. at 255–56; see also Munro, 896

F.3d at 1093; Cedeno, 100 F.4th at 399. What

§ 502(a)(2) does not allow is for a participant seeking

to recover “for individual injuries distinct from plan

injuries.” LaRue, 552 U.S. at 256.

Capital Group’s interpretation of LaRue “rests on

the fiction” that because Pover seeks relief related to

a defined-contribution plan, § 502(a)(2) authorizes her

to pursue only her individualized pro rata share of

monetary recovery owed to the Plan while

simultaneously obtaining equitable relief that would

affect the entire Plan. See Cedeno, 100 F.4th at 405.

ERISA does not allow “a court or arbitral forum to

slice and dice individual plan participants’ and

beneficiaries’ injuries resulting from mismanagement

by fiduciaries in the way” that Capital Group

suggests. See id. Nor do § 409(a) or § 502(a)(2)

differentiate between monetary and equitable relief in

a way that can be reconciled with Capital Group’s

proposed approach. See id. As such, we join those of

22a

our sister circuits that have rejected the reading of

LaRue that Capital Group advances. See, e.g., id. at

399, 404–06; Parker v. Tenneco, Inc., 114 F.4th 786,

794–96 (6th Cir. 2024); Williams, 161 F.4th at 1321–

22.

Additionally, while the difference between

defined-benefit and defined-contribution plans

motivated LaRue’s narrowing of Russell’s “entire

plan” language, this difference mattered because an

account-level injury is only possible in definedcontribution plans. See LaRue, 552 U.S. at 255. Recall

that in LaRue, the former employee claimed that the

plan fiduciary did not make certain investment

changes to the participant’s account. Id. at 251.

Because a defined-benefit plan does not allow for

individualized investment decisions, neither the

breach alleged in LaRue nor the consequential injury

would have been possible. See id. at 254–56. The

analytical difference between Russell and LaRue thus

turned on the nature of the injury suffered on account

of the plan type, not on the plan type itself. See LaRue,

552 U.S. at 254–56; Cedeno, 100 F.4th at 399.

Here, Pover alleges fiduciary breaches that

harmed the Plan as a whole. For example, she alleges

that Capital Group retained a set of five mutual funds

among its menu of investment options despite

knowing they were underperforming because they

generated millions in “fee income” instead of replacing

those funds “with any one of the many prudent

alternatives.” This alleged breach “falls squarely

within th[e] category” of duties that § 409(a) imposes

on plan fiduciaries. See LaRue, 552 U.S. at 253; see

also Varity Corp. v. Howe, 516 U.S. 489, 511–12 (1996)

(noting that § 409(a)’s fiduciary obligations “reflect[] a

23a

special congressional concern about plan asset

management” and “relate[] to the plan’s financial

integrity”). And under § 502(a)(2), Pover is entitled to

bring an action on behalf of the Plan to recover any

resulting losses, as well as “such other equitable or

remedial relief as the court may deem appropriate.”

29 U.S.C. §§ 1109(a), 1132(a)(2).

For these reasons, we conclude that the Plan’s

representative-action waiver prevents Pover from

enforcing her substantive rights under ERISA

because her breach-of-fiduciary-duty claims can only

be brought in a representative capacity. Accordingly,

the waiver is unenforceable under the effectivevindication doctrine.

2. Severability

Having concluded that the representative-action

waiver is unenforceable, our last question is whether

this provision may be severed from the Plan’s

arbitration provision. See Viking River Cruises, 596

U.S. at 662. This answer is easy. The waiver provision

expressly provides that if it “is found to be

unenforceable by a court of competent jurisdiction,

then any claim on a class, collective, or representative

basis shall be filed and adjudicated in a court of

competent jurisdiction, and not in arbitration.” Here,

where there is no illegality in the severance clause

itself, we enforce the Plan as written. See Mull, 41

F.4th at 1132. Pover’s breach-of-fiduciary duty claims

must be adjudicated in court rather than arbitration.

AFFIRMED.

24a

VANDYKE, Circuit Judge, dissenting:

The majority errs twice over in finding the

arbitration clause unenforceable. On the merits, I

would hold that the bar on “representative” suits in

the arbitration clause’s class-action waiver does not

refer to third-party suits on behalf of the Plan. When

read in context, that phrase refers to class action or

collective “representative” suits only, not principalagent representative suits like section 502(a)(2)

ERISA claims. That means it does not prevent Pover

from bringing claims on behalf of the Plan in

arbitration and therefore does not interfere with

Pover’s substantive rights to bring section 502(a)(2)

ERISA claims.

But we should not have even reached the issue of

arbitrability. The parties expressly agreed to allow an

arbitrator to decide threshold questions of

arbitrability, expressing their desire to keep courts

out of this dispute. Although Capital failed to make

that argument before the district court, its failure to

do so falls squarely within our exceptions to waiver.

Consistent with the parties’ express intent, I would

have waived waiver and sent the question of

arbitrability to the arbitrator.

I.

The majority errs by holding the classaction waiver unenforceable.

The majority explains (1) that in a section

502(a)(2) ERISA claim, the plaintiff proceeds on

behalf of the plan and the remedies afforded by ERISA

benefit the plan, Majority Op. at 14; (2) that Pover

“seeks to represent the Plan” and pursues “plan-wide

relief,” id. at 17; (3) that Pover seeks “monetary

recovery and equitable remedies ... that would

25a

necessarily affect the entire Plan,” id. at 17; and

(4) that Pover can bring a section 502(a)(2) claim to

recover for both “financial harm suffered plan-wide”

and harm to her “individual account[],” id. at 19, as

well as “such other equitable or remedial relief as the

court may deem appropriate,” id. at 22 (quoting 29

U.S.C. § 1109(a)). I agree with the majority on all four

points.

The critical question here, though, is whether the

Plan’s ban on “class, collective or representative” suits

prevents Pover from bringing section 502(a)(2) claims

on behalf of the Plan. If it did, then the majority’s

bottom-line conclusion would be right: the arbitration

agreement would prevent Pover from exercising her

statutory right to bring section 502(a)(2) claims on

behalf of the Plan in arbitration, and we would need

to allow this lawsuit to proceed.

The majority devotes little attention to this crucial

question. In context, the most sensible reading of

what the arbitration agreement calls a “class action

waiver” is that it bars class or collective

“representative” actions, not “representative” suits on

behalf of the Plan. Because there is nothing in the

arbitration agreement that prevents Pover from

arbitrating her claim on behalf of the Plan, we should

have enforced that agreement and directed the

district court to compel arbitration.

A. The class-action waiver does not

foreclose suits on behalf of the Plan.

To understand the interpretive dispute here, it’s

important to grasp that not all “representative” suits

are the same. The Supreme Court conceives of two

different categories of “representative” suits in the

arbitration context: (1) collective-action suits where a

26a

putative plaintiff “represents” a class of similarly

situated individuals, and (2) principal-agent suits

where the putative plaintiff “represents” a wholly

different entity separate from the plaintiff. See Viking

River Cruises, Inc. v. Moriana, 596 U.S. 639, 648

(2022). Rule 23 class actions provide the most obvious

example of the first category, where a plaintiff sues

not just on his own behalf but also on behalf of other,

similarly situated plaintiffs.

But the second, “principal-agent” category

encompasses actions brought by an individual on

behalf of a different entity altogether, like a qui tam

action, shareholder-derivative suit, or privateattorney-general action. See id. at 657. In these types

of “representative” suits, the plaintiff stands in the

shoes of some third party, effectively bringing claims

on that third party’s behalf. See, e.g., Stoner v. Santa

Clara Cnty. Off. of Educ., 502 F.3d 1116, 1126 (9th

Cir. 2007) (describing qui tam relators as

“representing the interests of the government and

prosecuting the action on its behalf”). The Supreme

Court has observed that, unlike collective action

representative suits that “adjudicate the individual

claims of multiple absent third parties,” “single-agent,

single-principal representative suits” are consistent

with “the norm of bilateral arbitration as [the Court’s]

precedents conceive of it.” Viking River, 596 U.S. at

655, 657. Suits that are “representative” in the

principal-agent sense are thus fully compatible with a

law requiring that arbitration be “representative.” See

id. at 656– 57.

The parties do not dispute, and this court’s case

law recognizes, that section 502(a)(2) ERISA claims

are “representative” in the second, “principal-agent”

27a

sense. See Munro v. Univ. of S. Cal., 896 F.3d 1088,

1092–93 (9th Cir. 2018). So the important question

here is whether the term “representative” in the

Plan’s class-action waiver bars such suits.

A contextual reading of the Plan’s class-action

waiver confirms that when it refers to

“representative” suits, it means collective-action

representative suits (like class actions) rather than

principal-agent representative suits on behalf of the

Plan. A phrase is given more precise content by its

association with neighboring words. See Fischer v.

United States, 603 U.S. 480, 487 (2024). And when a

word is placed at the end of a list, it “is typically

‘controlled and defined by reference to the specific

classes ... that precede it.’” Id. (internal quotation

marks omitted) (quoting Sw. Airlines Co. v. Saxon,

596 U.S. 450, 458 (2022)). A classic example of this

principle comes from Yates v. United States, 574 U.S.

528 (2015) (plurality opinion). There, the Supreme

Court considered whether the Sarbanes–Oxley Act’s

prohibition on tampering with any “tangible object”

applied to fish. Id. at 532. The dissenting justices

concluded that the phrase “tangible object” covered

“any object capable of being touched,” including a fish.

Id. at 553 (Kagan, J., dissenting). But the Yates

plurality and Justice Alito rightly rejected that

unnatural reading and looked to the full prohibition

against tampering with “any record, document, or

tangible object.” See id. at 544–45; id. at 549–50 (Alito,

J., concurring in judgment). In context, it was clear

that “tangible object” referred “not to any tangible

object, but specifically to the subset of tangible objects

involving records and documents.” Id. at 544; accord

id. at 549–50 (Alito, J., concurring in judgment).

28a

Applying this interpretive approach to the Plan’s

prohibition on “class, collective, or representative”

suits

shows

that

it

bars

collective-action

representative suits only, and not principal-agent

suits on behalf of the Plan. Just like the phrase

“tangible object” in Yates, the class-action waiver’s use

of “representative” comes at the end of a list—“class,

collective or representative.” The words surrounding

“representative” in the waiver—“class” and

“collective”—confirm that the waiver refers to the

types of representative suits brought on behalf of

other similarly situated individuals, not to principalagent “representative” suits where an individual

effectively steps into the shoes of the Plan.

Accordingly, we should read “representative suits” to

refer not to any representative suits, but only to the

subset of representative suits that involve “class” or

“collective” suits.

Pover responds that reading the class-action

waiver this way violates the canon against surplusage

by making the term “representative” “duplicative of

the [preceding] terms ‘class’ and ‘collective.’” But this

argument is not persuasive. For one thing, Pover’s

reading wouldn’t solve all the redundancy problems:

if the waiver used “representative” in the principalagent sense, it still also uses the words “class” and

“collective,” which mean the same thing and would

also be redundant. It wouldn’t make sense to apply the

surplusage canon to one word in this list, but not the

others. As the Supreme Court recently explained,

“[t]he canon against surplusage can be meaningful

when a competing interpretation would avoid

superfluity. But, when both interpretations involve

the same redundancy, the canon against surplusage

simply does not apply.” Bufkin v. Collins, 604 U.S.

29a

369, 387 (2025) (citations omitted); see also Marx v.

General Revenue Corp., 568 U.S. 371, 385 (2013)

(declining to apply the canon against surplusage when

no interpretation would give effect to every word).

“[E]ven excellent writers do not always trim every

unnecessary word,” Mullin v. Al Otro Lado, 609 U.S.

----, ----, 2026 WL 1825741, at *8 (U.S. June 25, 2026),

and it appears that the Plan’s drafters simply

included a three-word list to refer exhaustively to the

same type of collective representative action.

To be sure, there’s some overlap in the terms

“class, collective or representative,” but legal

documents are often overinclusive and use repetitive

phrases to get the same point across. This is “a

perhaps regrettable but not uncommon sort of

lawyerly iteration.” Freeman v. Quicken Loans, Inc.,

566 U.S. 624, 635 (2012). As Justice Scalia observed,

the canon against surplusage “cannot always be

dispositive” because “[s]ometimes drafters do repeat

themselves and do include words that add nothing of

substance, either out of a flawed sense of style or to

engage in the ill-conceived but lamentably common

belt-and-suspenders approach. Doublets and triplets

abound in legalese: Execute and perform—what

satisfies one but not the other? Rest, residue, and

remainder—could a judge interpret these as referring

to three distinct things? Peace and quiet—when is

peace not quiet?” Antonin Scalia & Bryan Garner,

Reading Law 176–77 (2012). “Sometimes,” as here,

“the better overall reading of [a document] contains

some redundancy.” Rimini Street, Inc. v. Oracle USA,

Inc., 586 U.S. 334, 346 (2019); accord Freeman, 566

U.S. at 635 (adopting interpretation of statute under

which “portion, split, or percentage” in the same

clause “all mean the same thing”).

30a

Pover’s reading would also render an important

part of the Plan’s arbitration provision meaningless.

The arbitration provision specifies that it seeks “to

make mandatory individual arbitration apply ... to the

maximum extent permissible under ERISA.”

Interpreting “representative” as banning section

502(a)(2) claims on behalf of a plan would essentially

foreclose arbitration of any ERISA claims because—

as the majority correctly observes—all section

502(a)(2) claims are representative in the principalagent sense. So if this interpretation were right, the

class-action waiver would bar every representative

action filed on behalf of a plan. Such a reading puts

the arbitration provision and the class-action waiver

in direct conflict—the latter takes away most or all of

what the former purports to give. Since both

provisions were added to the Plan at the same time,

it’s implausible this is what the drafters meant.

Reading the Plan’s class-action waiver as applying

only to collective actions where the plaintiff seeks to

represent a class of similarly situated individuals is

most consistent with the Plan’s express statement

that arbitration “shall remain required with the

minimum change necessary to allow the arbitration

requirement to be permissible under ERISA.”1

1 The Summary Plan Description (“SPD”) supports this under-

standing. The SPD provides that plan participants may not

“participate in a class action involving the plan” and instead

“must arbitrate any claim involving the plan, including ... a claim

based on allegations of breach of fiduciary responsibility”—in

other words, section 502(a)(2) claims. The SPD thus confirms

that the arbitration provisions were intended to allow arbitration of principal-agent representative claims on behalf of the

Plan, while foreclosing only class- or collective-action representative claims.

31a

At bottom, the best reading of the Plan’s classaction waiver is that it uses the word “representative”

in its collective-action sense, not its principal-agent

sense. This means that the waiver does not bar Pover

from arbitrating section 502(a)(2) claims on behalf of

the Plan.

B. The majority misapplies Platt.

Eliding any analysis of the Plan’s language, the

majority simply asserts that, on the crucial

interpretive question here: “our decision in Platt

controls.” Majority Op. at 19. This is the loadbearing

move in the majority opinion. But it is a misstep.

In Platt v. Sodexo, S.A., a three-judge panel held

that the effective-vindication doctrine prevented us

from compelling arbitration because the arbitration

clause in that case prohibited claims brought “as a

plaintiff or class member in any purported class or

representative proceeding.” 148 F.4th 709, 715, 721

(9th Cir. 2025) (emphasis added). The Platt panel

described that clause as “a representative action

waiver, which expressly preclude[d] Platt from

bringing claims in a representative capacity on the

Plan’s behalf.” Id. at 721. And, the Platt panel held,

this waiver was unenforceable because it

“prevent[ed]” plan participants from seeking the

“plan-wide relief” that section 502(a)(2) entitles them

to seek. Id.

It’s hard to tell exactly why the Platt panel was so

confident that a clause barring claims “as a plaintiff

or class member in any purported class or

representative proceeding” prevented individuals

from bringing “plan-wide” section 502(a)(2) claims. Cf.

id. at 715, 721. Platt did not acknowledge the different

types of representative actions. Nor did it inspect the

32a

language of the arbitration clause at issue there to

determine whether it barred principal-agent

“representative” actions on behalf of a third party—

like qui tam and shareholder-derivative suits—or

merely barred class-action-style “representative”

actions. The Platt panel opinion quotes the relevant

waiver language only once, in the “background”

section, id. at 715, and simply concludes—six pages

later, without any analysis—that this language is “a

representative action waiver, which expressly

preclude[d] Platt from bringing claims in a

representative capacity on the Plan’s behalf,” id. at

721. Platt appears to be nothing but a fact-bound

decision with essentially no analysis.

It’s also not clear why the majority is so confident

that Platt “controls” here. Majority Op. at 19. The

language in the Platt agreement—barring claims

brought “as a plaintiff or class member in any

purported class or representative proceeding”—is

different from the language in the class-action waiver

here. Id. at 715 (emphasis added). I don’t read Platt to

hold that every arbitration agreement provision with

somewhat comparable language necessarily bars

ERISA suits on behalf of a plan and is therefore

invalid under the effective-vindication doctrine. And I

would not extend Platt’s cursory holding about the

specific agreement in that case—which, again,

involved no analysis of the relevant language or the

different types of representative suits—to this case,

which involves a different Plan, with different

language.

Platt is thus no bar to properly construing the

actual language before us. And, as I’ve explained, the

best interpretation of this Plan’s class-action waiver is

33a

that it does not ban principal-agent representative

suits on behalf of the Plan. Because the waiver does

not ban those suits, it does not prevent Pover from

vindicating her rights under ERISA, and the

severability clause does not take effect. Cf. Majority

Op. at 22.

II. We should have applied well-established

exceptions to waiver and allowed the

arbitrator to decide the threshold issues

of arbitrability.

Although the majority errs in extending Platt’s

holding to misinterpret the class-action waiver, we did

not even need to reach that question. That’s because

the Plan delegates threshold arbitrability questions to

the arbitrator. The Federal Arbitration Act (“FAA”)

tasks courts with a limited role when reviewing a

motion to compel arbitration. See Rent–A–Ctr., W.,

Inc. v. Jackson, 561 U.S. 63, 67 (2010); 9 U.S.C. § 2.

Because arbitration is a matter of contract, “parties

are generally free to structure their arbitration

agreements as they see fit.” Volt Info. Scis., Inc. v. Bd.

of Trs. of Leland Stanford Junior Univ., 489 U.S. 468,

479 (1989); Stolt-Nielsen S.A. v. AnimalFeeds Int’l

Corp., 559 U.S. 662, 683 (2010); see also Mitsubishi

Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473

U.S. 614, 628 (1985). The freedom to contract includes

the freedom to keep courts out of disputes altogether

by dictating that threshold arbitrability questions—

such as whether an arbitration agreement applies to

a particular dispute and whether the agreement is

voided by operation of law—will be decided by an

arbitrator and not the courts. Henry Schein, Inc. v.

Archer & White Sales, Inc., 586 U.S. 63, 65 (2019);

Rent–A–Ctr., 561 U.S. at 68–70; First Options of

34a

Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (1995).

When

parties

“clearly

and

unmistakably”

demonstrate their intention to arbitrate arbitrability,

we must enforce that agreement. Brennan v. Opus

Bank, 796 F.3d 1125, 1130 (9th Cir. 2015) (quoting AT

& T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S.

643, 649 (1986)).

Here, the Plan Committee added an arbitration

clause and the class-action waiver to the Plan by

formal amendment on January 27, 2020. The clause

applied broadly to “[a]ny claim, controversy or alleged

breach or violation of law that arises out of or relates

in any way to the Plan,” and was binding on both

current and former participants.

The clause explicitly incorporated the American

Arbitration Association (“AAA”) Rules, stating: “[a]ny

claim, controversy or alleged breach or violation of the

law that arises out of or related in any way to the

Plan ... shall be settled in binding arbitration

administered

by

the

American

Arbitration

Association under its Employment Arbitration Rules

and Mediation Procedures.” Under Ninth Circuit

precedent, this incorporation constitutes “clear and

unmistakable” evidence that the Plan delegated

threshold arbitrability questions to the arbitrator.

Brennan, 796 F.3d at 1130; Caremark, LLC v.

Choctaw Nation, 104 F.4th 81, 87 n.5 (9th Cir. 2024).

Threshold issues delegated to the arbitrator include

defenses like unconscionability and effective

vindication. Fli-Lo Falcon, LLC v. Amazon.com, Inc.,

97 F.4th 1190, 1194 (9th Cir. 2024). The Plan’s “clear

and unmistakable” delegation of threshold issues to

an arbitrator, deprives us of the authority to decide

35a

threshold arbitrability questions and directs these

questions to the arbitrator.2

The majority refuses to resolve the case on these

clear legal grounds because Capital failed to argue the

issue before the district court. Majority Op. at 17 n.2.

But the arbitrability of the Plan falls squarely within

our recognized waiver exceptions. We may, and often

do, consider arguments not raised below where the

issue is purely legal, the record is fully developed, and

there is no prejudice. Greger v. Barnhart, 464 F.3d

968, 973 (9th Cir. 2006); Bolker v. Comm’r, 760 F.3d

1039, 1042 (9th Cir. 1985).

Whether incorporation of AAA Rules in the Plan

governs delegation is a purely legal question.

Brennan, 796 F.3d at 1130. The record is also

complete since nobody disputes that the language of

the valid amendment to the Plan explicitly

incorporates the AAA Rules. And factual disputes

about Pover’s sophistication or receipt of amendments

to the Plan are irrelevant to whether the Plan agreed

to arbitration (which it clearly did). Pover is suing

here on behalf of the Plan—she cannot rely on her

individual level of sophistication in asking us to ignore

the Plan’s delegation of arbitrability questions to an

The amendment complied with ERISA’s procedural requirements. The Plan expressly authorizes the Committee to amend

the Plan. The amendment was disclosed in both the Summary

Plan Description and quarterly materials. The record establishes

that the Plan followed its own amendment procedures and satisfied ERISA’s disclosure obligations. The Supreme Court has

explained that employers may freely amend ERISA plans if they

follow the procedures outlined in the plan’s documents. CurtissWright Corp. v. Schoonejongen, 514 U.S. 73, 78 (1995). Pover

does not dispute that the Committee had authority to adopt the

amendment.

2

36a

arbitrator. The Plan is not prejudiced by arbitrating

according to the Plan’s own terms, which the Plan

itself approved. I see no reason to avoid enforcing the

arbitration clause’s delegation of arbitrability

questions to an arbitrator.

* * *

We should not have even decided the issue of

arbitrability, but the majority nonetheless reaches

that issue to find that the class-action waiver bans

more than class actions. In doing so, the majority

transplants the ipse-dixit holding from Platt to hold in

this case, again without analysis, that the Plan

language here bars Pover from bringing claims on

behalf of the Plan. That isn’t the best reading of the

Plan’s class-action waiver. I respectfully dissent.

37a

APPENDIX B

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case

No.

Title

Date

CV 23-9657-GW-PVCx

August 12,

2024

Cathy Pover v. The Capital Group Companies, Inc., et al.,

Present: The Honorable GEORGE H. WU, UNITED

STATES DISTRICT JUDGE

Javier Gonzalez

Deputy Clerk

April Lassiter-Benson

Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs:

Charles H. Field, Jr.

Richard D. Carter

Attorneys Present for Defendants:

Michael S. Hines

PROCEEDINGS: DEFENDANTS’ MOTION TO

COMPEL ARBITRATION AND

DISMISS THE AMENDED

COMPLAINT [27]

The Court’s Tentative Ruling on Defendants’ Motion

[27] was issued on August 9, 2024 [45]. Oral argument

is held. The Tentative Ruling is adopted as the Court’s

Final Ruling. Defendants’ Motion is DENIED.

38a

The Court sets a scheduling conference for September

16, 2024 at 8:30 a.m. The parties are to file a joint

scheduling report by noon on September 11, 2024.

: 15

Initials of Preparer

JG

39a

APPENDIX C

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case

No.

Title

Date

CV 23-9657-GW-PVC

August

2024

9,

Cathy Pover v. The Capital Group Companies Inc. et al

Present: The Honorable GEORGE H. WU, UNITED

STATES DISTRICT JUDGE

Patricia Gomez for Javier Gonzalez

Deputy Clerk

Not Reported

Court Reporter / Recorder

Attorneys Present for Plaintiff:

Not Present

Attorneys Present for Defendants:

Not Present

Proceeding: (In Chambers)Tentative Ruling on

Motion to Compel Arbitration and

Dismiss the Amended Complaint [27]

Attached hereto is the Court’s Tentative Ruling on

Plaintiffs’ Motion to Compel Arbitration and Dismiss

the Amended Complaint set for hearing August 12,

2024, at 8:30 a.m. The parties are instructed to read

the tentative ruling before Monday’s hearing.

00

Initials of Preparer

pg

:

00

40a

Cathy Pover v. The Capital Group Companies

Inc. et al.; Case No. 2:23-cv-09657-GW-(PVCx) Tentative Ruling on Motion to Compel Arbitration

Before the Court is Defendants’ motion to compel

arbitration (the “Motion”) in this putative class action

arising under Section 502(a)(2) of the Employee Retirement Income Security Act (“ERISA”), 28 U.S.C.

§ 1132(a)(2). See Motion, Docket No. 27. The Court

has considered the Motion, Plaintiff’s opposition

(“Opp.”), Docket No. 39, Defendants’ reply (“Reply”),

Docket No. 42, with oral arguments scheduled on August 12, 2024.

The Motion asks the Court to determine the enforceability of an arbitration agreement that

commands participants in an ERISA-governed plan

who are pursuing breach of fiduciary duty claims in a

representative capacity on behalf of the entire plan to

instead bring only individualized claims in arbitration. ERISA statutorily permits plan participants to

recover plan-wide relief for breaches of fiduciary duties owed to the plan. But the arbitration provision at

issue in this case limits participants to bringing

claims in individualized arbitration, where they can

recover for the plan only their individualized pro rata

share of restitution and may be unable to recover

other forms of plan-wide equitable relief. Because the

arbitration provision at issue in this case works as a

prospective waiver of the rights and remedies ERISA

statutorily establishes, the Court would DENY the

Motion.

I.

Background

Plaintiff Cathy Pover (“Pover”) is a former employee of The Capital Group Companies Inc. (“Capital

41a

Group”). See Declaration of Cathy Pover (“Pover

Decl.”), Docket No. 39-4, ¶ 1. Capital Group is a global

asset manager with $2.2 trillion in assets under management as of December 31, 2022. See First Amended

Complaint (“FAC”), Docket No. 24, ¶ 11; Motion at 7.

Capital Group sponsors The Capital Retirement Savings Plan (the “Plan”), which is a defined contribution

plan composed of a Master Retirement Plan and a

401(k) Tax Advantage Plan. See Declaration of Michael S. Hines (“Hines Decl.”), Docket No. 27-1, Ex. 1,

at 9 of 186; Motion at 7. The Plan provides retirement

income for approximately 11,000 Capital Group employees, former employees, and their beneficiaries

(the “Plan Participants”). See FAC ¶ 27. Pover has

been a participant in the Plan since 1992. See Pover

Decl. ¶ 2.

The Plan is comprised of various 401(k) participant accounts, company contribution accounts, and

personal contributions accounts. See Motion at 7-8; see

generally Hines Decl., Ex. 1, at 3-86 of 186. Each Plan

Participant may choose to allocate her respective account into any of the investment options the Plan

offers. See id. Each Plan Participant maintains an account comprised of the value of the participant’s

contributions, Capital Group’s contributions, and

earnings from the investment options selected by the

participant. See FAC § 27.

On November 14, 2023, Pover filed suit against

Capital Group, The Board of Directors of Capital

Group and its members (the “Board of Directors”), and

the U.S. Retirement Benefits Committee of Capital

Group (the “Committee”) (collectively, “Defendants”).

See generally Complaint, Docket No. 1. The parties

jointly stipulated to extend Defendants’ time to

42a

respond to the Complaint to March 4, 2024 and to allow Pover until May 1, 2024 to file an amended

complaint. See Docket Nos. 12-13. On March 4, 2024,

Defendants timely filed a motion to compel arbitration. See Docket No. 23. On May 1, 2024, Pover timely

filed the FAC, which remains the operative complaint

in this matter and mooted Defendants’ initial motion

to compel arbitration of the original complaint. See

generally FAC.

The FAC alleges three causes of action arising under ERISA: (1) Breach of the Duty of Prudence; (2)

Breach of the Duty of Loyalty; and (3) Failure to Monitor. See generally FAC. Pover brings these claims on

behalf of the Plan in a representative capacity of a putative class of Plan Participants. See FAC ¶ 8. Because

the details of Pover’s allegations are ancillary to determining the instant Motion, the Court will recite

only the general premise of Pover’s case. Pover alleges

that Defendants breached their fiduciary duties by retaining certain investment products in the Plan for

the purpose of generating fee income for Capital

Group. See generally FAC.

Pover seeks to make good to the Plan as a whole

all the losses that resulted from these alleged

breaches of fiduciary duties during the time period of

July 1, 2019 through the date of judgment in this lawsuit (the “Class Period”). See id. ¶ 8, 16. As a

representative of the entire plan, Pover seeks planwide recovery. See, e.g., id. ¶ 205 (“Each of the Capital

Group Defendants is liable to make good to the Plan

as a whole the losses resulting from the aforementioned breaches and to restore to the Plan any profits

resulting from the breaches of fiduciary duties alleged

in this Count. The Capital Group Defendants are

43a

subject to other plan-wide equitable or remedial relief

as appropriate.”), ¶ 211 (“the Defendants . . . are liable

to disgorge to the Plan all profits made as a result of

these Defendants’ breaches of the duty of loyalty.”). In

the FAC’s Prayer for Relief, Pover specifically requests, inter alia: (1) a declaration that Defendants

breached their fiduciary duties; (2) an order that Defendants “make good to the Plan as a whole for the

losses” and “restore to the Plan any profits” that resulted from each breach of fiduciary duty; (3) an order

that Defendants “are liable to the Plan for appropriate

plan-wide equitable relief, including but not limited to

restitution and disgorgement”; (4) removal of the fiduciaries who breached their fiduciary duties; and (5)

reformation of the Plan to include only prudent investments. See FAC, Prayer for Relief.

On May 15, 2024, Defendants filed the instant

Motion seeking to dismiss the case and compel Pover

to bring the claims asserted in the FAC in individual

arbitration. See generally Motion. Defendants contend

that Pover is bound by a mandatory arbitration agreement in the Plan’s terms that require her to bring her

claims in binding individualized arbitration. See generally id. The arbitration agreement that Defendants

contend binds Pover is a relatively new amendment to

the Plan’s terms. Pover first started participating in

the Plan in 1992, at which time the Plan did not contain an arbitration provision nor a class action waiver.

See Pover Decl. ¶ 2; Hines Decl. at 76 of 186. On January 27, 2020, the Committee unilaterally amended

the Plan’s terms to modify its claims procedure, adding both a binding arbitration provision and a waiver

44a

of class, collective, and representative actions.1 See

Hines Decl. at 88-90 of 186.

This change amended the entirety of Section 15.6

of the Plan, which previously delineated a claims procedure but did not include a mandatory arbitration

provision or a class action waiver. See Hines Decl. at

76 of 186. Section 15.6(b) of the amended Plan terms

now provides a mandatory arbitration provision:

Arbitration. Any claim, controversy or alleged

breach or violation of law that arises out of or

relates in any way to the Plan or a claimant’s

participation in the Plan and seeks a remedy,

ruling or judgment of any kind against the

Plan, a Plan fiduciary, or a party in interest

shall be settled by binding arbitration administered by the American Arbitration

Association under its Employment Arbitration Rules and Mediation Procedures. Such

arbitration shall be conducted in Los Angeles,

California (or such other major city that is

nearest to the workplace of the Participant)

before a neutral arbitrator with substantial

experience in ERISA matters. In any such arbitration, the arbitrator will issue a written

award/opinion and the Company will pay the

arbitrator’s fee and arbitration forum fees.

Judgment on the award rendered by the arbitrator may be entered in any court having

jurisdiction thereof.

1 For convenience, the Court will hereinafter refer to the waiver

of class, collective, and representative actions simply as a “class

action waiver.” Unless indicated otherwise, the Court intends

such use of the term “class action waiver” to encompass the provision’s waiver of representative actions.

45a

See Hines Decl., Ex. 1, at 89 of 186. Section 15.6(c) of

the amended Plan terms now provides a mandatory

Class Action Waiver:

Waiver of Class, Collective, and Representative

Actions.

A

Participant,

former

Participant, or Beneficiary must bring any

dispute in arbitration on an individual basis

only, and not on a class, collective or representative basis and must waive the right to

commence, be a party to, or be an actual or putative class member of any class, collective, or

representative action arising out of or relating

to the Plan, including, but not limited to, any

claims related to the Plan (“class action

waiver”). However, if this class action waiver

is found to be unenforceable by a court of competent jurisdiction, then any claim on a class,

collective, or representative basis shall be

filed and adjudicated in a court of competent

jurisdiction, and not in arbitration. Except as

provided in the preceding sentence, this Section 15.6(c) is intended to make mandatory

individual arbitration apply, as described

above, to the maximum extent permissible under ERISA; if any feature of this arbitration

requirement is impermissible under ERISA,

arbitration as described above shall remain

required with the minimum change necessary

to allow the arbitration requirement to be permissible under ERISA.

See Hines Decl., Ex. 1, at 89 of 186.

Capital Group argues that these terms are binding upon Pover and compel her to bring her

individualized claims in arbitration and not on a

46a

representative basis. See generally Motion. Pover argues that the arbitration provision and class action

waiver together foreclose her ability to pursue planwide relief under ERISA and are therefore unenforceable under the effective vindication doctrine. See

generally Opp. Even so, Pover argues there was no

agreement to arbitrate in the first place because Defendants unilaterally amended the Plan’s terms

without her consent, and that the arbitration agreement is nonetheless unconscionable. See generally id.

II. Legal Standard

The Federal Arbitration Act (“FAA”) “was enacted

in 1925 in response to widespread judicial hostility to

arbitration agreements.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011). The FAA reflects

“both a liberal federal policy favoring arbitration and

the fundamental principle that arbitration is a matter

of contract.” Id. (internal quotation marks and citations omitted); see also Moses H. Cone Mem’l Hosp. v.

Mercury Constr. Corp., 460 U.S. 1, 24 (1983); Rent-ACtr., W., Inc. v. Jackson, 561 U.S. 63, 67 (2010). “In

line with these principles, courts must place arbitration agreements on an equal footing with other

contracts and enforce them according to their terms.”

Concepcion, 563 U.S. at 339 (internal citations omitted).

A party aggrieved by the refusal of another party

to arbitrate under a written arbitration agreement

may petition the court for an order compelling arbitration as provided for in the parties’ agreement. See

9 U.S.C. § 4. Under the FAA, a court’s role is “limited

to determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement

encompasses the dispute at issue.” Chiron Corp. v.

47a

Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th

Cir. 2000). If the answer to both inquires is yes, then

“courts must ‘rigorously enforce’ arbitration agreements according to their terms.” Am. Exp. Co. v.

Italian Colors Rest., 570 U.S. 228, 233 (2013) (quoting

Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 221

(1985)). “By its terms, the [FAA] leaves no place for

the exercise of discretion by a district court, but instead mandates that district courts shall direct the

parties to proceed to arbitration on issues as to which

an arbitration agreement has been signed.” Dean Witter Reynolds, 470 U.S. at 218 (emphasis in original).

However, the FAA provides that arbitration

agreements may be found unenforceable on “such

grounds as exist at law or in equity for the revocation

of any contract.” 9 U.S.C. § 2. “This saving clause permits agreements to arbitrate to be invalidated by

generally applicable contract defenses, such as fraud,

duress, or unconscionability, but not by defenses that

apply only to arbitration or that derive their meaning

from the fact that an agreement to arbitrate is at issue.” Concepcion, 563 U.S. at 339 (internal quotation

marks omitted). “[T]he party resisting arbitration

bears the burden of proving that the claims at issue

are unsuitable for arbitration.” Green Tree Fin. Corp.Alabama v. Randolph, 531 U.S. 79, 91 (2000).

“While the Court may not review the merits of the

underlying case ‘[i]n deciding a motion to compel arbitration, [it] may consider the pleadings, documents of

uncontested validity, and affidavits submitted by either party.’” Macias v. Excel Bldg. Servs. LLC, 767 F.

Supp. 2d 1002, 1007 (N.D. Cal. 2011) (quoting Ostroff

v. Alterra Healthcare Corp., 433 F. Supp. 2d 538, 540

(E.D. Pa. 2006)).

48a

III. Discussion

Defendants’ principal argument here is that the

outcome of this Motion is open-and-shut by the Ninth

Circuit’s unpublished memorandum disposition in

Dorman v. Charles Schwab Corp., 780 F. App’x 510

(9th Cir. 2019) (“Dorman II”). See Motion at 11-15

(“The Ninth Circuit’s decision in Dorman is dispositive”); Reply at 6-10 (“The Ninth Circuit has already

decided this issue”). Defendants position is that: (1)

the Plan includes an arbitration agreement that encompasses Pover’s claims, (2) Pover is bound by the

arbitration agreement because she participated in the

Plan while the arbitration agreement was in effect, (3)

the agreement is nearly identical to that the arbitration agreement the Ninth Circuit compelled to

arbitration in Dorman II, and (4) the arbitration

agreement is enforceable because it does not waive

any substantive ERISA rights. See generally Motion;

Reply.

Pover’s primary contention is that the Plan’s arbitration clause and class action waiver effectively

foreclose her from achieving the plan-wide relief that

ERISA statutorily establishes, rendering the agreement unenforceable under the effective vindication

exception. See Opp. at 18-22. In any event, Pover also

argues, no agreement to arbitrate was formed when

the Committee unilaterally amended the Plan’s terms

to include an arbitration provision to which she was

never notified nor consented. See Opp. at 22-29. Pover

also argues that the arbitration agreement is unconscionable. See Opp. at 29-31.

For the reasons explained below, the Court would

find that the arbitration agreement at issue in this

case serves as a prospective waiver of the substantive

49a

rights and remedies ERISA establishes and is therefore unenforceable under the effective vindication

exception. Because the class action waiver is expressly

nonseverable, the Court would find that the entire arbitration agreement is void. And because resolution of

Pover’s primary contention is dispositive of the instant Motion, the Court does not reach Pover’s other

arguments regarding unilateral amendment, formation, and unconscionability.

A. The Plan and ERISA

Before addressing the various arguments, the

Court will first demarcate some background about the

Plan and the statutory framework of the ERISA provisions relevant to Pover’s claims.

a. The Plan

The Plan at issue in this case is a profit-sharing

plan as defined in Section 401(k) of the Internal Revenue Code, which is a type of defined contribution

plan. See FAC ¶ 26. “Defined contribution plans dominate the retirement plan scene today. In

contrast,

when ERISA was enacted, . . . the defined benefit plan

was the norm of American pension practice.” LaRue v.

DeWolff, Boberg & Assocs., Inc., 552 U.S. 248, 255

(2008) (cleaned up). The Plan is comprised of various

401(k) participant accounts, company contribution accounts, and personal contribution accounts. See

Motion at 7-8; see generally Hines Decl, Ex. 1, at 3-86

of 186. Pover – like all other Plan Participants composing the putative class – maintains an individual

plan account and may choose to allocate her account

into any of the investment options the Plan offers. See

Motion at 7-8; FAC § 27; see generally Hines Decl., Ex.

1, at 3-86 of 186. Pover’s individual plan account is

comprised of the value of her contributions, Capital

50a

Group’s contributions, and earnings from the investment options she selected. See FAC § 27. Unlike a

defined benefit plan that would promise a specified

monthly benefit at retirement, the value of Pover’s account will fluctuate due to the changes in the value of

the investments she selects.

b. ERISA

Pover’s claims arise from two provisions of ERISA.

Sections 409(a) and 502(a)(2) of ERISA work together

to permit participants in an ERISA-governed plan to

bring civil lawsuits on behalf of the plan to recover

from fiduciaries who breach their fiduciary duties

owed to the plan. Section 409(a) establishes personal

liability for fiduciaries who breach their fiduciary duties to the plan:

Any person who is a fiduciary with respect to

a plan who breaches any of the responsibilities, obligations, or duties imposed upon

fiduciaries by this subchapter shall be personally liable to make good to such plan any

losses to the plan resulting from each such

breach, and to restore to such plan any

profits of such fiduciary which have been

made through use of assets of the plan by the

fiduciary, and shall be subject to such other

equitable or remedial relief as the court

may deem appropriate, including removal

of such fiduciary.

29 U.S.C. § 1109(a) (emphasis added). “The principal

statutory duties imposed on the trustees relate to the

proper management, administration, and investment

of fund assets, the maintenance of proper records, the

disclosure of specified information, and the avoidance

51a

of conflicts of interest.” Massachusetts Mut. Life Ins.

Co. v. Russell, 473 U.S. 134, 142-43 (1985).

Section 502(a)(2) is the civil enforcement mechanism of Section 409(a). It authorizes civil lawsuits to

be brought “by the Secretary [of Labor], or by a participant, beneficiary or fiduciary for appropriate relief

under [Section 409] of this title.” 29 U.S.C.

§ 1132(a)(2); see also LaRue, 552 U.S. at 253 (observing that Section 502(a) “identifies six types of civil

actions that may be brought by various parties. The

second . . . authorizes . . . plan participants . . . to bring

actions on behalf of a plan to recover for violations of

the obligations defined in § 409(a).”).

“These two provisions together establish the vehicle for individual plan participants to pursue claims

based on a plan fiduciary’s breach of its duties pursuant to Section 409(a).” Cedeno v. Sasson, 100 F.4th

386, 397 (2d Cir. 2024); see also LaRue, 552 U.S. at

251 (“Section 502(a)(2) provides for suits to enforce the

liability-creating provisions of § 409, concerning

breaches of fiduciary duties that harm plans.”).

B. The Plan’s Arbitration Agreement Is Unenforceable

With this background in mind, the Court will now

address Pover’s principal argument that the Plan’s arbitration agreement is unenforceable under the

effective vindication exception. The FAA directs

courts “to respect and enforce the parties’ chosen arbitration procedures.” Epic Sys. Corp. v. Murphy Oil

USA, 584 U.S. 497, 506 (2018) (emphasis added). As

such, arbitration agreements are “a specialized kind

of forum-selection clause that posits not only the situs

of suit but also the procedure to be used in resolving

the dispute.” Scherk v. Alberto-Culver Co., 417 U.S.

52a

506, 519 (1974). The Supreme Court has long made

clear, however, that “[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive

rights afforded by the statute; it only submits to their

resolution in an arbitral, rather than a judicial, forum.” Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc., 473 U.S. 614, 628 (1985). The Supreme Court recently reiterated that “the FAA does

not require courts to enforce contractual waivers of

substantive rights and remedies.” Viking River

Cruises, Inc. v. Moriana, 596 U.S. 639, 653 (2022). The

Supreme Court explained:

The FAA’s mandate is to enforce arbitration

agreements. And as we have described it, an

arbitration agreement is a specialized kind of

forum-selection clause that posits not only the

situs of suit but also the procedure to be used

in resolving the dispute. An arbitration agreement thus does not alter or abridge

substantive rights; it merely changes how

those rights will be processed. And so we have

said that by agreeing to arbitrate a statutory

claim, a party does not forgo the substantive

rights afforded by the statute; it only submits

to their resolution in an arbitral forum.

Id. at 653 (internal citations, quotation marks, and

brackets omitted) (emphasis in original); see also

Mitsubishi, 473 U.S. at 637 n.19 (“We merely note

that in the event the choice-of-forum and choice-of-law

clauses operated in tandem as a prospective waiver of

a party’s right to pursue statutory remedies for antitrust violations, we would have little hesitation in

condemning the agreement as against public policy.”).

The rule that follows is this: the FAA does not

53a

mandate enforcement of an arbitration agreement

that effectively works as a prospective waiver of substantive statutory rights or remedies.

“Although the Supreme Court has never invalidated a provision in an arbitration agreement on this

basis, it has repeatedly recognized the general principle that provisions within an arbitration agreement

that prevent a party from effectively vindicating statutory rights are not enforceable.” Cedeno, 100 F.4th at

395 (collecting cases in which the Supreme Court has

recognized the effective vindication doctrine). While

the Supreme Court has not addressed the enforceability of an arbitration agreement that compels

individualized arbitration of ERISA Section 502(a)(2)

claims, every circuit court to publish an opinion on the

issue (as opposed to a non-precedential memorandum)

has invalided such agreements under the effective

vindication exception. See id. at 390 (“[T]he contested

provisions within the arbitration agreement are unenforceable because they amount to prospective waivers

of participants’ substantive statutory rights and remedies under ERISA.”); Henry on behalf of BSC

Ventures Holdings, Inc. Emp. Stock Ownership Plan

v. Wilmington Tr. NA, 72 F.4th 499, 507 (3d Cir.), cert.

denied, 144 S. Ct. 328 (2023) (“When a provision of an

arbitration clause purports to waive rights that a statute creates, it is a prohibited prospective waiver, and

the provision must give way to the statute. In short,

the class action waiver in this case cannot be enforced.”); Harrison v. Envision Mgmt. Holding, Inc.

Bd. of Directors, 59 F.4th 1090, 1101 (10th Cir.), cert.

denied, 144 S. Ct. 280 (2023) (“[T]he arbitration provisions of the Plan Document effectively prevent

Harrison from vindicating many of the statutory remedies that he seeks in his complaint under ERISA §

54a

502(a)(2).”); Smith v. Bd. of Directors of Triad Mfg.,

Inc., 13 F.4th 613, 623 (7th Cir. 2021) (“[W]e hold only

that the ‘effective vindication’ exception bars application of the plan’s arbitration provision to claims under

§ 1132(a)(2)”); see also Burnett v. Prudent Fiduciary

Servs. LLC, No. 22-cv-270-RGA-JLH, 2023 WL

387586, at *6 (D. Del. Jan. 25, 2023), report and recommendation adopted, No. 22-cv-270-RGA, 2023 WL

2401707 (D. Del. Mar. 8, 2023), aff’d, No. 23-1527,

2023 WL 6374192 (3d Cir. Aug. 15, 2023) (“But what

the statute provides, the arbitration provision takes

away: it says that beneficiaries cannot sue on behalf

of the Plan and that they cannot recover plan-wide

damages.”). This is such a case.

Pover argues that she seeks plan-wide remedies

that ERISA establishes but which the Plan’s arbitration agreement prevents her from recovering. See

Opp. at 19-20. Specifically, Pover takes issue with the

class action waiver’s requirement that all claims be

brought “on an individual basis only” and that Plan

Participants must waive their right to “any class, collective, or representative action.” See id. at 20; Hines

Decl., Ex. 1, at 89 of 186. Pover contends that any

plan-wide relief must necessarily be sought under

Section 502(a)(2) in a representative capacity on behalf of the whole plan, not on behalf of any one

individual plan participant. See Opp. at 19.

In the FAC, Pover seeks in a representative capacity to recover for the entire Plan all the losses and to

restore to the Plan all the profits that resulted from

the breaches of fiduciary duty she alleges. Additionally, Pover seeks several other forms of equitable and

remedial relief, including removal of the fiduciaries,

reformation of the Plan’s investments, and a

55a

declaration that the fiduciaries breached their duties.

In short, Pover’s claims are necessarily a representative action seeking plan-wide recovery. But the Plan’s

class action waiver requires Pover to bring any dispute “on an individual basis only, and not on a class,

collective or representative basis” and to “waive the

right to commence, be a party to, or be an actual or

putative class member of any class, collective, or representative action arising out of or relating to the

Plan.” See Hines Decl., Ex. 1, at 89 of 186. A straightforward conclusion results: in individualized

arbitration, Pover could not bring any of her claims in

a representative capacity on behalf of the Plan, nor

could she attain plan-wide relief.

Defendants disagree with this conclusion. Defendants argue that the Plan’s arbitration agreement and

class action waiver do not waive any ERISA remedies.

See Reply at 12-13. Relying on a recent district court

ruling from within this district, Defendants contend

that even though ERISA establishes fiduciary duties

owed to the plan, Pover does not have a right to pursue plan-wide monetary relief. See Reply at 11

(quoting Yagy v. Tetra Tech, Inc., No. 24-cv-1394JFW-(ASx), 2024 WL 2715900, at *5 (C.D. Cal. May

17, 2024) (“[N]othing in § 502(a)(2) suggests that an

ERISA § 502(a)(2) plaintiff has an unqualified right to

bring a collective action to recoup all of a fiduciary’s

losses and gains at once.”) (internal quotation marks

omitted)). As Defendants see it, any recovery to an individual Plan Participant’s account is necessarily a

recovery that benefits the plan because an increase to

a part is an increase to the whole. See id at 8-9. This

leads Defendants to argue that if Pover recovers for

injuries to her individual account, she will attain relief that benefits the Plan. See id. That is because if

56a

Pover is successful in arbitration, she will not personally get a check that she can cash; instead, the

fiduciaries would be held personally liable for their

breach and would send a check to the Plan, the proceeds of which would be attributed to Pover’s

individual Plan account, thereby benefiting the Plan.

See id.

Furthermore, Defendants argue that unlike the

agreements at issue in the out-of-circuit appellate

cases upon which Pover relies, no language in the

Plan’s arbitration agreement forecloses an arbitrator

from awarding relief that would widely benefit the

plan, such as removal of a fiduciary. See id. at 12-13.

To make this argument, Defendants rely on this

clause from the class action waiver:

[T]his Section 15.6(c) is intended to make

mandatory individual arbitration apply . . . to

the maximum extent permissible under

ERISA; if any feature of this arbitration requirement is impermissible under ERISA,

arbitration as described above shall remain

required with the minimum change necessary

to allow the arbitration requirement to be permissible under ERISA.

See id. at 12; Hines Decl., Ex. 1, at 89 of 186.

These arguments are unpersuasive for two independent reasons.2 First, Section 502(a)(2) and Section

409(a) work together to provide a statutory right to

recover plan-wide monetary relief. To arrive at this

conclusion, a court need look no further than the plain

2 Obviously, the district court’s decision in Yagy is not binding

precedent and would have, at best, only persuasive effect (if this

Court would agree with its reasoning).

57a

text of Section 409(a), which enables participants to

recover for the plan “any losses” and “any profits” that

result from a fiduciary breach. See 29 U.S.C. §

1109(a). Congress’s repeated use of “any” and “plan”

leaves no doubt that Sections 409(a) and 502(a)(2) create a right to recover plan-wide relief of “any losses”

and “any profits.” See LaRue, 552 U.S. at 261

(Thomas, J., concurring) (“On their face, §§ 409(a) and

502(a)(2) permit recovery of all plan losses caused by

a fiduciary breach.”) (emphasis in original); Henry, 72

F.4th at 507 (Section 409(a) “does not limit restitution

to the plaintiff’s losses”).

The Supreme Court has long made clear that

“§ 409’s draftsmen were primarily concerned with the

possible misuse of plan assets, and with remedies that

would protect the entire plan, rather than with the

rights of an individual beneficiary.” Varity Corp. v.

Howe, 516 U.S. 489, 509 (1996) (emphasis in original);

see also Russell, 473 U.S. at 142. (“A fair contextual

reading of the statute makes it abundantly clear that

its draftsmen were primarily concerned with the possible misuse of plan assets, and with remedies that

would protect the entire plan, rather than with the

rights of an individual beneficiary.”).

In Russell, a beneficiary of an ERISA-governed insurance plan sued under Section 502(a)(2) to recover

damages arising from the delayed processing of a

medical claim. See Russell, 473 U.S. at 136. Although

Russell had been paid all the benefits she was contractually entitled to, she argued that the plan’s

fiduciaries violated their Section 409(a) fiduciary duties by failing to timely process her claim. See id. at

136-138. The Supreme Court held that Russell could

not establish a Section 502(a)(2) claim to recover

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personal losses caused by the delayed processing of

the claim because this extra-contractual relief would

not benefit the class as a whole. See id. at 148. Russell

is the foundational case making clear that Section

502(a) claims can only be brought on behalf of the

plan. Defendants do not contest this point. See Reply

at 7.

Instead, Defendants contend that LaRue stands

for the proposition that any assets tied to individual

plan accounts are part of the plan’s overall assets and

any injury to an individual account is necessarily an

injury to the plan. See Reply at 8. In LaRue, the Supreme Court permitted a plaintiff to bring a Section

502(a)(2) claim to recover losses in his individual account in a defined contribution plan stemming from

the defendants’ failure to make certain changes to his

investments as he directed. See LaRue, 552 U.S. 250251. The Court explained that “Russell’s emphasis on

protecting the ‘entire plan’ from fiduciary misconduct

reflects the former landscape of employee benefit

plans. That landscape has changed.” Id. at 254. The

Court detailed this changed landscape with respect to

the “entire plan” language:

The “entire plan” language in Russell speaks

to the impact of § 409 on plans that pay defined

benefits.

Misconduct

by

the

administrators of 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. It was that

default risk that prompted Congress to require defined benefit plans (but not defined

contribution plans) to satisfy complex minimum funding requirements, and to make

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premium payments to the Pension Benefit

Guaranty Corporation for plan termination

insurance.

For defined contribution plans, however, fiduciary misconduct need not threaten the

solvency of the entire plan to reduce benefits

below the amount that participants would

otherwise receive. Whether a fiduciary breach

diminishes plan assets payable to all participants and beneficiaries, or only to persons tied

to particular individual accounts, it creates

the kind of harms that concerned the draftsmen of § 409. Consequently, our references to

the “entire plan” in Russell, which accurately

reflect the operation of § 409 in the defined

benefit context, are beside the point in the defined contribution context.

See id. at 1025 (internal citation omitted). The LaRue

Court “recognized that in contrast to defined benefit

plans, where mismanagement by plan administrators

affects an individual’s entitlement to a defined benefit

only if it creates or enhances the risk of default by the

entire plan, in the context of defined contribution

plans, mismanagement of plan assets by plan administrators can injure participants at the individual

account level.” Cedeno, 100 F.4th at 399. “[A] critical

distinction between Russell and LaRue was that Russell did not allege a breach of fiduciary duties as

defined in Section 409(a) – that is, fiduciary duties

‘with respect to a plan’ – but LaRue did.” Id. at 398.

Ultimately, the Supreme Court held in LaRue

that “although § 502(a)(2) does not provide a remedy

for individual injuries distinct from plan injuries, that

provision does authorize recovery for fiduciary

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breaches that impair the value of plan assets in a participant’s individual account.” LaRue, 552 U.S. at 256.

LaRue therefore stands for the proposition that

breaches of fiduciary duties that impair the value of

plan assets in a participant’s individual account are

actionable under Section 502(a)(2). See Cedeno, 100

F.4th at 399 (“The LaRue Court thus recognized that

Section 409(a) protects against breaches of fiduciary

duty involving the management of assets within defined contribution plans, whether the injury is felt at

the plan level or directly at the individual account

level, and that such breaches are thus actionable under Section 502(a)(2).”). But nothing in LaRue stands

for the proposition that Section 502(a)(2) no longer

permits a plan participant from seeking plan-wide relief. See id. at 399 (“At most, LaRue recognized that

Section 502(a)(2) provides a remedy for injuries to the

plan that are felt only at an individual account level;

the Court did not suggest that Section 502(a)(2) allows

individualized relief for injuries that are felt at the

plan level.”)

Defendants do not assert that Pover would be able

to recover plan-wide monetary relief under the Plan’s

arbitration agreement. Instead, they contend that

Pover’s pro rata recovery would be the recovery to the

plan that ERISA establishes. See Reply at 10-13. This

argument is not persuasive. The putative class Pover

seeks to represent consists of thousands of Plan Participants. Under the Plan’s arbitration agreement,

only if each of these arbitrations were successfully litigated and each arbitrator consistently valued the

profits gained or losses incurred and correctly apportioned the resulting amounts to each individual

account would the Plan be “ma[de] good” for “any profits” or “any losses” stemming from the breach. See 29

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U.S.C. § 1109(a). Recovery of Pover’s pro rata share

might inure to the benefit of the plan, as Defendants

suggest, but such relief is not the plan-wide restitution that ERISA codifies. See Cedeno, 100 F.4th at 405

(“Nothing in Section 409(a) or 502(a)(2) allows a court

or arbitral forum to slice and dice individual plan participants’ and beneficiaries’ injuries resulting from

mismanagement by fiduciaries”).

Secondly, and independently, Defendants have

not substantiated their assertion that the Plan’s arbitration agreement would in fact permit plan-wide

equitable relief or other remedial measures. Aside

from plan-wide restitution, Pover seeks a declaration

that the fiduciaries breached their duties, removal of

said fiduciaries, and reformation of the Plan’s assets.

But Defendants have not even attempted to establish

how an arbitrator could award plan-wide equitable relief in individualized, binding, and presumably

confidential arbitration. See Cedeno, 100 F.4th at 405406 (discussing the incoherence between achieving

plan-wide equitable relief in individual arbitration).

Would the arbitrator’s declaration of liability, order to

remove a fiduciary, or order requiring reformation of

the Plan’s assets be binding upon the entire plan, or

only as to Pover’s individual account? If such orders

would bind the entire Plan, how would the Plan reconcile multiple reformation orders or conflicting

orders to remove or not remove fiduciaries? If such orders would be binding only upon Pover and the Plan,

how could the Committee reform the Plan’s assets or

remove a fiduciary only in relation to Pover’s individual account? These are the questions that Defendants

have left unanswered, asking the Court to presume

that the lack of explicit language foreclosing plan-

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wide relief distinguishes this case from the several appellate decisions upon which Pover relies.

The Court certainly acknowledges that the language of the Plan’s arbitration agreement does not go

as far as those in other cases to explicitly preclude

plan-wide equitable relief. For instance, the arbitration agreement at issue in Cedeno provided in

relevant part:

Each arbitration shall be limited solely to one

Claimant’s Covered Claims and that Claimant may not seek or receive any remedy that

has the purpose or effect of providing additional benefits or monetary or other relief to

any Employee, Participant or Beneficiary

other than the Claimant.

.

.

.

[T]the Claimant’s remedy, if any, shall be limited to (i) the alleged losses to the Claimant’s

Accounts resulting from the alleged breach of

fiduciary duty, (ii) a pro-rated portion of any

profits allegedly made by a fiduciary through

the use of Plan assets where such pro-rated

amount is intended to provide a remedy solely

for the benefit of the Claimant’s accounts, or

(iii) such other remedial or equitable relief as

the arbitrator deems proper so long as such

remedial or equitable relief does not include or

result in the provision of additional benefits or

monetary relief to any Employee, Participant

or Beneficiary other than the Claimant, and is

not binding on the Administrator or the Trustee with respect to any Employee, Participant

or Beneficiary other than the Claimant.

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Cedeno, 100 F.4th at 392. That language is clearly

more assertive in foreclosing the availability of planwide relief than the arbitration agreement at issue in

this case. Similarly, the arbitration provision in Smith

contained the following clause: “Each arbitration shall

be limited solely to one Claimant’s Covered Claims,

and that Claimant may not seek or receive any remedy which has the purpose or effect of providing

additional benefits or monetary or other relief to any

Eligible Employee, Participant or Beneficiary other

than the Claimant.” Smith, 13 F.4th at 616. In Smith,

the court made clear that it was this clause it took issue with and that it would have otherwise found the

arbitration agreement enforceable if, like the agreement in Dorman II, it did not contain such

“problematic language.” Id.

This Court is not persuaded that the lack of such

“problematic language” in the Plan’s arbitration

agreement necessarily means plan-wide relief would

be available in individual arbitration. Nor do Defendants affirmatively say it would. Even though the

Plan’s arbitration agreement does not explicitly contain the same language as the at-issue agreements in

other cases, it has the same effect. For the reasons explained above, plan-wide restitution is not available

under the Plan’s class action waiver and Defendants

have not persuaded the Court that all plan-wide equitable relief would be available in individual

arbitration. In short, the contrast Defendants identify

with the Plan’s arbitration agreement and those in

other cases is a difference – but not a distinction.

The Court would therefore find that the specific

arbitration agreement at issue in this case forecloses

Pover from pursuing plan-wide relief and therefore

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serves as a prospective waiver of her rights under

ERISA.

C. Relevant Caselaw

Defendants argue that Dorman II compels a different result. The Court will turn now to addressing

Defendants’ principal argument that Dorman II controls this case, as doing so will further elucidate the

developing legal landscape concerning arbitration

provisions, like the one at issue in this case, that compel arbitration of Section 502(a) claim.

Defendants contend that the Plan’s arbitration

agreement is “nearly identical” to that which the

Ninth Circuit addressed in Dorman II, which thereby

commands Pover’s claims be sent to arbitration pursuant to the agreement’s terms. See Motion at 11-15;

Reply at 6-10. As a threshold matter, the Court would

note that Dorman II is an unpublished memorandum

disposition and is therefore non-precedential. See 9th

Cir. Rule 36-3. Accordingly, Defendants’ contention

that the Court is bound to apply Dorman II simply has

no merit. The Court can, of course, look to Dorman II

for its persuasive value, but the unpublished memorandum disposition does not create, as Defendants

suggest, binding authority upon which the instant

Motion must be resolved.

In any event, the Court is not persuaded that Dorman II was intended to, nor can it in fact, bear the

weight Defendants place upon it. Most importantly,

Dorman II did not consider an argument evaluating

the effective vindication exception. The entirety of the

court’s discussion relevant to the enforceability of

agreements requiring arbitration of Section 502(a)(2)

claims is three sentences:

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Although § 502(a)(2) claims seek relief on behalf of a plan, the Supreme Court has

recognized that such claims are inherently individualized when brought in the context of a

defined contribution plan like that at issue.

LaRue stands for the proposition that a defined contribution plan participant can bring

a § 502(a)(2) claim for the plan losses in her

own individual account. The Plan and Dorman both agreed to arbitration on an

individualized basis. This is consistent with

LaRue.

Dorman II, 780 F. App’x at 514 (internal citations

omitted). As observed earlier, this Court agrees that

LaRue stands for the proposition that, in relation to

defined contribution plans, participants have a cognizable Section 502(a)(2) claim for losses in their

plan’s individual account. But nothing in LaRue

stands for the proposition that Section 502(a)(2) no

longer permits an individual plan participant to seek

plan-wide relief. Moreover, Dorman II was decided before the Supreme Court recently reiterated the

effective vindication exception in Viking River

Cruises. For these various reasons, Dorman II is not

persuasive on the central issue presented in this Motion.

It is noted that the Second, Third, Seventh, and

Tenth Circuits have each refused to enforce arbitration agreements requiring the individualized

arbitration of Section 502(a)(2) claims seeking to recover for fiduciary breaches under Section 409(a). See

Cedeno, 100 F.4th at 390; Henry, 72 F.4th at 507; Harrison, 59 F.4th at 1101; Smith, 13 F.4th at 623; see

also Burnett, 2023 WL 6374192. Defendants have not

66a

cited to, and this Court has not found, any published

circuit opinion to hold to the contrary. Nor has the Supreme Court addressed the issue. This Court has

reviewed these out-of-circuit appellate cases and finds

the extensive reasoning set forth in Cedeno, Henry,

Harrison, and Smith persuasive. Though the scope of

each holding varies, the overwhelming weight of authority on this topic finds that arbitration agreements

requiring plan participants to bring Section 502(a)(2)

claims in individualized arbitration work as a prospective waiver of substantive rights when they

foreclose plan-wide recovery.

At bottom, because the arbitration agreement at

issue in the Plan’s document serves as a prospective

waiver of Pover’s right to seek the plan-wide remedies

ERISA statutorily establishes, it is unenforceable under the effective vindication exception.

D. The Class Action Waiver is Expressly Nonseverable

Having determined that the class action waiver is

unenforceable, the Court must now decide whether it

is severable such that the other portions of the arbitration agreement are otherwise enforceable. It is not.

By its own terms, the class action waiver is expressly

nonseverable. Recall that the class action waiver provides: “[I]f this class action waiver is found to be

unenforceable by a court of competent jurisdiction,

then any claim on a class, collective, or representative

basis shall be filed and adjudicated in a court of competent jurisdiction, and not in arbitration.” See Hines

Decl., Ex. 1, at 89 of 186. Because Pover brings her

claims in a representative capacity on behalf of a purported class and the Court has determined that the

class action waiver is unenforceable, the Plan’s

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express terms require Pover’s claims to move forward

in court, not in arbitration. Accordingly, the Class Action Waiver is not severable, and the entire

arbitration provision is void.

IV. Conclusion

Based on the foregoing discussion, the Court

would DENY the Motion.

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APPENDIX D

29 U.S.C. § 1109. Liability for breach of fiduciary duty.

(a) Any person who is a fiduciary with respect to a

plan who breaches any of the responsibilities,

obligations, or duties imposed upon fiduciaries by this

subchapter shall be personally liable to make good to

such plan any losses to the plan resulting from each

such breach, and to restore to such plan any profits of

such fiduciary which have been made through use of

assets of the plan by the fiduciary, and shall be subject

to such other equitable or remedial relief as the court

may deem appropriate, including removal of such

fiduciary. A fiduciary may also be removed for a

violation of section 1111 of this title.

(b) No fiduciary shall be liable with respect to a

breach of fiduciary duty under this subchapter if such

breach was committed before he became a fiduciary or

after he ceased to be a fiduciary.

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APPENDIX E

29 U.S.C. § 1132(a). Civil enforcement.

(a) Persons empowered to bring a civil action

A civil action may be brought—

(1) by a participant or beneficiary—

(A) for the relief provided for in subsection

(c) of this section, or

(B) to recover benefits due to him under

the terms of his plan, to enforce his rights

under the terms of the plan, or to clarify his

rights to future benefits under the terms of

the plan;

(2) by the Secretary, or by a participant,

beneficiary or fiduciary for appropriate relief

under section 1109 of this title;

(3) by a participant, beneficiary, or fiduciary

(A) to enjoin any act or practice which violates any

provision of this subchapter or the terms of the

plan, or (B) to obtain other appropriate equitable

relief (i) to redress such violations or (ii) to enforce

any provisions of this subchapter or the terms of

the plan;

(4) by the Secretary, or by a participant, or

beneficiary for appropriate relief in the case of a

violation of section 1025(c) or 1032(a) of this title;

(5) except as otherwise provided in subsection

(b), by the Secretary (A) to enjoin any act or

practice which violates any provision of this

subchapter, or (B) to obtain other appropriate

equitable relief (i) to redress such violation or (ii)

to enforce any provision of this subchapter;

70a

(6) by the Secretary to collect any civil penalty

under paragraph (2), (4), (5), (6), (7), (8), or (9) of

subsection (c) or under subsection (i) or (l);

(7) by a State to enforce compliance with a

qualified medical child support order (as defined

in section 1169(a)(2)(A) of this title);

(8) by the Secretary, or by an employer or

other person referred to in section 1021(f)(1) of

this title, (A) to enjoin any act or practice which

violates subsection (f) of section 1021 of this title,

or (B) to obtain appropriate equitable relief (i) to

redress such violation or (ii) to enforce such

subsection;

(9) in the event that the purchase of an

insurance contract or insurance annuity in

connection with termination of an individual’s

status as a participant covered under a pension

plan with respect to all or any portion of the

participant’s pension benefit under such plan

constitutes a violation of part 4 of this title1 or the

terms of the plan, by the Secretary, by any

individual who was a participant or beneficiary at

the time of the alleged violation, or by a fiduciary,

to obtain appropriate relief, including the posting

of security if necessary, to assure receipt by the

participant or beneficiary of the amounts provided

or to be provided by such insurance contract or

annuity, plus reasonable prejudgment interest on

such amounts;

(10) in the case of a multiemployer plan that

has been certified by the actuary to be in

1 So in original. Probably should be “subtitle”.

71a

endangered or critical status under section 1085

of this title, if the plan sponsor—

(A) has not adopted a funding

improvement or rehabilitation plan under

that section by the deadline established in

such section, or

(B) fails to update or comply with the

terms of the funding improvement or

rehabilitation plan in accordance with the

requirements of such section,

by an employer that has an obligation to

contribute with respect to the multiemployer plan

or an employee organization that represents

active participants in the multiemployer plan, for

an order compelling the plan sponsor to adopt a

funding improvement or rehabilitation plan or to

update or comply with the terms of the funding

improvement or rehabilitation plan in accordance

with the requirements of such section and the

funding improvement or rehabilitation plan; or

(11) in the case of a multiemployer plan, by an

employee representative, or any employer that

has an obligation to contribute to the plan, (A) to

enjoin any act or practice which violates

subsection (k) of section 1021 of this title (or, in

the case of an employer, subsection (l) of such

section), or (B) to obtain appropriate equitable

relief (i) to redress such violation or (ii) to enforce

such subsection.

72a

APPENDIX F

CAPITAL RETIREMENT SAVINGS PLAN

CERTIFICATE OF COMMITTEE ACTION

The undersigned, being a duly authorized member of the United States Retirement Benefits

Committee (the “Committee”), upon due consideration

and consultation, does hereby certify that the Committee has adopted the following Amendment

Number 1 to the Capital Retirement Savings Plan, as

amended and restated July 1, 2019 (the “Plan”), and

that said Amendment Number 1 be, and it hereby is,

adopted effective as of the date specified below.

AMENDMENT NUMBER 1

WHEREAS, the Committee has the authority to

amend the Plan;

THEREFORE, Section 15.6 of the Plan is hereby

amended in its entirely to read as follows:

Section 15.6 – Claims Procedure; Arbitration; Waiver

of Class, Collective, and Representative Actions

(a) Claims Procedure.

i.

A Participant, former Participant, Beneficiary or any other authorized person may

file a claim for benefits in writing with the

claims official appointed by the Committee within the maximum time permitted

by law or under the regulations

73a

promulgated by the Secretary of Labor (or

a delegate) pertaining to claims procedures. If the claim is wholly or partially

denied, the Committee shall provide the

claimant with a reasonable opportunity to

appeal the claims official’s denial of a

claim to a review official (appointed by the

Committee) for a full and fair review.

ii.

The Committee will create a written

claims procedure as part of (or which accompanies) the Plan’s summary plan

description. The written claims procedure

will conform to the requirements of Department of Labor regulation §2560.5031. This Section 15.6 specifically incorporates the written claims procedure as from

time to time published by the Committee

as part of the Plan.

iii.

The claims official and the review official

shall have full discretionary power and

authority to construe the Plan and any

procedures adopted by the Committee, to

determine questions of eligibility and entitlements and to make findings of fact as

under Section 15.2 and, to the extent permitted by law, the decision of the claims

official (if no review is properly requested)

or the decision of the review official on review, as the case may be, shall be final and

binding on all parties except to the extent

found by an arbitrator to constitute an

abuse of discretion.

iv.

Subject to exhaustion of the claims procedure described above, a claimant may

74a

contest the decision of the review official

only and exclusively by submitting the

claim to arbitration under Section 15.6(b),

The arbitration shall be determined based

solely on the record established for the review official on review.

(b) Arbitration. Any claim, controversy or alleged

breach or violation of law that arises out of or

relates in any way to the Plan or a claimant’s

participation in the Plan and seeks a remedy,

ruling or judgment of any kind against the

Plan, a Plan fiduciary, or a party in interest

shall be settled by binding arbitration administered by the American Arbitration

Association under its Employment Arbitration

Rules and Mediation Procedures. Such arbitration shall be conducted in Los Angeles,

California (or such other major city that is

nearest to the workplace of the Participant) before a neutral arbitrator with substantial

experience in ERISA matters. In any such arbitration, the arbitrator will issue a written

award/opinion and the Company will pay the

arbitrator’s fee and arbitration forum fees.

Judgment on the award rendered by the arbitrator may be entered in any court having

jurisdiction thereof.

(c) Waiver of Class, Collective, and Representative

Actions.

A

Participant,

former

Participant, or Beneficiary must bring any dispute in arbitration on an individual basis only,

and not on a class, collective or representative

basis and must waive the right to commence,

be a party to, or be an actual or putative class

75a

member of any class, collective, or representative action arising out of or relating to the

Plan, including, but not limited to, any claims

related to the Plan (“class action waiver”).

However, if this class action waiver is found to

be unenforceable by a court of competent jurisdiction, then any claim on a class, collective, or

representative basis shall be filed and adjudicated in a court of competent jurisdiction, and

not in arbitration. Except as provided in the

proceeding sentence, this Section 15.6(c) is intended to make mandatory individual

arbitration apply, as described above, to the

maximum extent permissible under ERISA; if

any feature of this arbitration agreement is

impermissible under ERISA, arbitration as described above shall remain required with the

minimum change necessary to allow the arbitration requirement to be permissible under

ERISA.

IN WITNESS WHEREFORE, this Certification is

hereby executed, effective as of January 27, 2020.