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




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                    Fifth Circuit

                                                                        FILED
                                                                  September 15, 2016
                                 No. 14-10553
                                                                     Lyle W. Cayce
                                                                          Clerk
WILLIAM LEE, Individually, and as Representatives of plan participants
and plan beneficiaries of the Verizon Management Pension Plan; JOANNE
MCPARTLIN, Individually, and as Representatives of plan participants and
plan beneficiaries of the Verizon Management Pension Plan; EDWARD
PUNDT,

             Plaintiffs - Appellants

v.

VERIZON COMMUNICATIONS, INCORPORATED; VERIZON
CORPORATE SERVICES GROUP, INCORPORATED; VERIZON
EMPLOYEE BENEFITS COMMITTEE; VERIZON INVESTMENT
MANAGEMENT CORPORATION; VERIZON MANAGEMENT PENSION
PLAN,

             Defendants - Appellees




                Appeal from the United States District Court
                     for the Northern District of Texas


     ON REMAND FROM THE UNITED STATES SUPREME COURT

Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge:
      This court previously affirmed the dismissal of Plaintiffs-Appellants’
claims against Defendants-Appellees for violations of The Employee
Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001–1461 (“ERISA”).
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                                  No. 14-10553
See Lee v. Verizon Commc’ns, Inc., 623 F. App’x 132, 134 (5th Cir. 2015)
(unpublished). Our affirmance was driven, in part, by the determination that
Plaintiff-Appellant Edward Pundt (“Pundt”), representative of one of the two
certified classes of Verizon pension-plan participants, lacked Article III
standing to sue for purported fiduciary misconduct pursuant to ERISA §
409(a), 29 U.S.C. § 1109(a). 

Specifically, we held that “standing for
defined-benefit plan participants requires imminent risk of default by the plan,
such that the participant's benefits are adversely affected,” and we noted that
Pundt failed to “allege the realization of risks which would create a likelihood
of direct injury to participants’ benefits” in this case. 

We thus
concluded that any direct harm to Pundt was “too speculative to support
standing.” 

We also rejected Pundt’s argument that “he directly
suffered constitutionally cognizable injury through invasion of his . . . statutory
rights [under ERISA] to proper [p]lan management,” concluding that standing
based on invasion of a statutory right must still “aris[e] from de facto injury,
which is not alleged by a breach of fiduciary duty.” 

a petition for writ of certiorari in the United States Supreme
Court. The Supreme Court subsequently decided Spokeo, Inc. v. Robins, 136 S.
Ct. 1540, 

(2016), which clarified the relationship between
concrete harm and statutory violations for purposes of assessing Article III
standing. After deciding Spokeo, the Supreme Court granted Pundt’s petition
for writ of certiorari, vacated our judgment in this case, and remanded the case
to this court for further consideration in light of Spokeo. Pundt v. Verizon
Commc’ns, Inc., No. 15-785, 

, at *1 (May 23, 2016). We
requested and received supplemental briefing from both sides regarding the
impact of Spokeo.
       There is only one narrow question for us to consider on remand: namely,
whether Spokeo affects our previous conclusion that a plaintiff’s bare
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                                  No. 14-10553
allegation of incursion on the purported statutory right to “proper plan
management” under ERISA is insufficient to meet the injury-in-fact prong of
Article III standing. We believe this conclusion remains as valid in light of
Spokeo as it was before Spokeo was decided.
      The Supreme Court reaffirmed in Spokeo that violation of a procedural
right granted by statute may in some circumstances be a sufficiently concrete,
albeit intangible, harm to constitute injury-in-fact without an allegation of
“any additional harm beyond the one Congress has 

. However, the Supreme Court also took care to note that “Congress’[s]
role in identifying and elevating intangible harms does not mean that a
plaintiff automatically satisfies the injury-in-fact requirement whenever a
statute grants a person a statutory right and purports to authorize that person
to sue to vindicate that right.” 

III standing requires a
concrete injury even in the context of a statutory violation.” 

the deprivation of a right created by statute must be accompanied by “some
concrete interest that is affected by the deprivation.” 

v.
Earth Island Inst., 

, 496 (2009)). Thus, Spokeo recognizes that at
minimum, a “concrete” intangible injury based on a statutory violation must
constitute a “risk of real harm” to the plaintiff. 

surprisingly well onto the present case: in Spokeo, the
Supreme Court held that a bare allegation of a Fair Credit Reporting Act
violation based on inaccurate reporting of consumer information was
insufficient to establish injury-in-fact, as “not all inaccuracies cause harm or
present any material risk of harm.” 

In the same way, we recognized
in this case that Pundt’s allegation of an “invasion of [a] statutory right[] to
proper [p]lan management” under ERISA was not alone sufficient to create
standing where there was no allegation of a real risk that Pundt’s defined-
benefit-plan payments would be affected. In short, because Pundt’s “concrete
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                                  No. 14-10553
interest” in the plan—his right to payment—was not alleged to be at risk from
the purported statutory deprivation, Pundt had not suffered an injury that was
sufficiently “concrete” to confer standing. We declined to hold that the mere
allegation of fiduciary misconduct in violation of ERISA, divorced from any
allegation of risk to defined-benefit-plan participants’ actual benefits, could
constitute de facto injury sufficient to establish constitutional standing.
      Pundt argues on remand that Spokeo requires consideration of historical
practice in determining whether an intangible harm constitutes injury-in-fact,

and thus this court should find that Pundt has standing based on
common-law trust principles. However, Spokeo’s recognition of history as an
important consideration in Article III standing analysis is not new. Indeed, the
Supreme Court has “often said that history and tradition offer a meaningful
guide to the types of cases that Article III empowers federal courts to consider.”
Sprint Commc’ns Co., L.P. v. APCC Servs., Inc., 

, 274 (2008). In
other words, the Supreme Court’s view that history can provide a useful metric
for identifying intangible harms was “often” invoked prior to Spokeo, yet Pundt
failed to raise his trust-law theory in the district court and did not press it in
his opening brief to this court beyond making a passing reference to “historical
authorities.” Spokeo thus gives us no occasion to revisit an issue that Pundt
did not adequately raise and that Spokeo did not affect, and we reject Pundt’s
statutory-injury argument for the same reason we identified in our original
opinion: a de facto injury is not alleged by reference to fiduciary misconduct
under ERISA alone. See David v. Alphin, 

, 336–37 (4th Cir. 2013)
(rejecting trust-law argument and concluding that defined-benefit-plan
participants lacked Article III standing to sue based solely on deprivation of
statutory right).
      Pundt also contends that the judgment of Congress supports finding
standing in this case, as Congress’s expressed concern in enacting ERISA was
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                                  No. 14-10553
to protect “the interests of participants in employee benefit plans . . . .” 29
U.S.C. § 1001(b). As we explained in our original opinion, however, a defined-
benefit-plan participant’s “interest[]” in the plan is his “nonforfeitable right
only to” the “defined level of benefits” established under the plan. Hughes
Aircraft Co. v. Jacobson, 

, 440 (1999). We once again decline to
“conflat[e] the concepts of statutory and constitutional standing” by holding
that incursion on a statutorily-conferred interest in “proper plan management”
is sufficient in itself to establish Article III standing. Lee, 623 F. App’x at 149.
A bare allegation of improper defined-benefit-plan management under ERISA,
without concomitant allegations that any defined benefits are even potentially
at risk, does not meet the dictates of Article III; concluding otherwise would
vitiate the Supreme Court’s explicit pronouncement that “Article III standing
requires a concrete injury even in the context of a statutory violation.” Spokeo,
at 1549; see also Kendall v. Emps. Ret. Plan of Avon Prods., 

, 120
(2d Cir. 2009) (“The statute does impose a general fiduciary duty to comply
with ERISA, but it does not confer a right to every plan participant to sue the
plan fiduciary for alleged ERISA violations without a showing that they were
injured by the alleged breach of the duty.”), abrogated in part on other grounds
as recognized in Am. Psychiatric Ass’n v. Anthem Health Plans, Inc., 

, 359 (2d Cir. 2016); Fletcher v. Convergex Grp. LLC, __F. Supp. 3d__, No.
13-CV-9150, 

, at *3 (S.D.N.Y Feb. 17, 2016) (noting that
Kendall “firmly rejected [the] argument that defendants’ violation of their
statutory duties under ERISA is in and of itself an injury in fact to [the
plaintiff]”).
       Having addressed the only issue that is even arguably implicated by
Spokeo, we need not consider the remaining arguments raised by Pundt on
remand. To the extent Pundt advances a distinct theory of standing based on
the pursuit of injunctive relief, that argument has been waived. See United
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                                 No. 14-10553
States v. McRae, 

, 479 (5th Cir. 2015) (“[A]n argument not raised
at the district court or in the appellant’s opening brief is waived . . . .”). We
accordingly reinstate and publish our prior opinion, which we reproduce below.




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                                  No. 14-10553
                                      *****
       Before the court is a retirement-plan dispute brought by current and
former participants and beneficiaries of Verizon’s pension plan (“the Plan”).
Plaintiffs, representing two certified classes, allege violations under the
Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1461
(“ERISA”), by the pension plan sponsors and administrators as a result of a
plan amendment and subsequent annuity purchase in December of 2012. The
certified classes are distinguished by the annuity transaction, which
transferred benefit obligations for some Plan beneficiaries to a group insurance
annuity, resulting in the following classes: the Transferee Class, represented
by Plaintiffs William Lee and Joanne McPartlin (collectively, “Transferee
Class representatives”), comprising Plan participants whose retirement-
benefit obligations were transferred to the annuity; and the Non-Transferee
Class, represented by Plaintiff Edward Pundt (“Pundt”), comprising Plan
participants whose retirement-benefit obligations remained with the Plan.
Plaintiffs appeal the district court’s dismissal of the claims of the Transferee
Class for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6),
as well as the dismissal of the sole claim of the Non-Transferee Class under
Rule 12(b)(1) for lack of constitutional standing.
       We affirm.
 I.    BACKGROUND
          A. Factual History
       Unless otherwise noted, the following factual history is based on
Appellants’ allegations in the second amended complaint (“SAC”), the live
pleading at the time of the district court’s dismissal order.
       In August of 2012, Verizon Investment Management Corp. (“VIMCO”), a
wholly-owned subsidiary of Verizon Communications Inc. (“Verizon”), retained
Fiduciary Counselors, Inc. (“FCI or Independent Fiduciary”) as an independent
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                                    No. 14-10553
fiduciary to “represent the participants and beneficiaries in connection with
the selection of the insurance company (or insurance companies) to provide an
annuity” and to negotiate “the terms of the annuity contract or contracts.” On
or about September 8, 2012, over a month prior to the date of the amendment,
the Independent Fiduciary provided a written determination of the
transaction’s compliance with ERISA.
      In October of 2012, Verizon’s board of directors amended the Plan terms
to provide for an annuity transaction, effective December 7, 2012. The
amendment applied to Plan participants who were already receiving benefit
payments as of January 1, 2010; this effectively divided the Plan participants
into the 41,000 members of the Transferee Class, and the roughly 50,000
members of the Non-Transferee Class. Regarding payments to those retirees,
the amendment directed the Plan to purchase an annuity meeting the
following requirements: (1) guaranteeing payment of pension benefits for all
transferred Plan participants; (2) maintaining benefit payments in the same
form that was in effect at the time of the annuity transaction; and (3) relieving
the Plan of any benefit obligation for any transferred Plan participants. 1
      Also in October of 2012, Verizon entered into a definitive purchase
agreement with Prudential, VIMCO, and FCI. Under the terms of the


      1The relevant provisions of the Amendment are as follows:
         (i) The annuity contract shall fully guarantee and pay each pension
              benefit earned by a “Designated Participant.”
         (ii) The annuity contract shall provide for the continued payment of the
              Designated Participant’s pension benefit . . . in the same form that
              was in effect under the Plan immediately before the annuity
              purchase . . . .
              ....
         (iv) After the annuity purchase . . . , the Plan shall have no further
              obligation to make any payment with respect to any pension benefit of
              a Designated Participant . . . . ROA.119–20.
          The term “Designated Participant” generally describes members of the Transferee
   Class, as it includes Plan participants who were receiving benefits at the time of the
   annuity transaction, and who had retired before January 1, 2010.
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                                       No. 14-10553
agreement, Verizon would purchase a single-premium, group annuity contract
from Prudential for $8.4 billion, in settlement of $7.4 billion in Plan benefit
obligations. Plan fiduciaries notified members of the Transferee Class about
the annuity transaction.
       Shortly after Plaintiffs’ motion for preliminary injunction against the
annuity transaction was denied, the annuity parties consummated the annuity
transaction on December 10, 2012.
           B. Procedural History
       The Transferee Class representatives filed their original complaint on
November 27, 2012; the complaint was immediately followed by their
application for a temporary restraining order. 2 In an order dated December 7,
2012 (“Lee I”), the district court denied the application. 3 On January 25, 2013,
the Transferee Class representatives filed their first amended complaint, to
which Plaintiff Pundt joined, and the district court certified the classes on
March 28, 2013.
       In an order dated June 24, 2013 (“Lee II”), the district court granted
Defendants’ motion to dismiss the Transferee Class’s claims for failure to state
a claim under Rule 12(b)(6), and the Non-Transferee Class’s claim under Rule
12(b)(1) for lack of constitutional standing. 4 The court also granted Plaintiffs
leave to amend. 5
       Plaintiffs filed the SAC on July 12, 2013. 6 In an order dated April 11,
2014 (“Lee III”), the district court dismissed the SAC in its entirety for failing



       2 At the request of the Transferee Class representatives, the application for temporary
restraining order was converted into a motion for a preliminary injunction.
       3 Lee v. Verizon Commc’ns Inc., 

, at *1 (N.D. Tex. Dec. 7, 2012) (“Lee

I”).
       4 Lee v. Verizon Commc’ns Inc., 

, 499 (N.D. Tex. June 24, 2013) (“Lee

II”).
       5 

(“SAC”).

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                                          No. 14-10553
to cure the deficiencies identified in Lee II. 7 Specifically, the district court
reasoned that, as amended, the first and third claims of the Transferee Class,
as well as the claim of the Non-Transferee Class, warranted dismissal for the
reasons stated in Lee II; 8 the district court then more fully addressed the
amended allegations regarding the Transferee Class’s second claim before
dismissing that claim as well. 9
II.      DISCUSSION
               A. Standard of Review
         This court reviews de novo a district court’s dismissal for failure to state
a claim under Federal Rule of Civil Procedure 12(b)(6). 10 In doing so, the court
applies the familiar Twombly-plausibility standard, according to which “we
must accept as true all well-pleaded facts.” 11 “To survive a Rule 12(b)(6) motion
to dismiss, a complaint does not need detailed factual allegations, but must
provide the plaintiff’s grounds for entitlement to relief—including factual
allegations that when assumed to be true raise a right to relief above the
speculative level.” 12
         The court similarly evaluates the Rule-12(b)(1) dismissal of the claim by
the Non-Transferee Class for lack of standing. As with a 12(b)(6) dismissal,
this court reviews de novo a district court’s dismissal under 12(b)(1). 13 As a




         7   Lee v. Verizon Commc’ns Inc., 

, at *9 (N.D. Tex. Apr. 11, 2014) (“Lee
III”).
         8See 

         9See 

        10 See Rosenblatt v. United Way of Greater Houston, 

, 417 (5th Cir. 2010)

(citing Cuvillier v. Taylor, 

, 401 (5th Cir. 2007)).
        11 

v. Putnal, 

, 196 (5th Cir. 1996)).
        12 

marks omitted).
        13 See Ballew v. Continental Airlines, Inc., 

, 781 (5th Cir. 2012) (citing

Ramming v. United States, 

, 161 (5th Cir. 2001)).
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                                      No. 14-10553
matter of subject matter jurisdiction, 14 standing under ERISA § 502(a) is
subject to challenge through Rule 12(b)(1). 15 Where, as here, the movant
mounts a “facial attack” on jurisdiction based only on the allegations in the
complaint, the court simply considers “the sufficiency of the allegations in the
complaint because they are presumed to be true.” 16
            B. Duty to Disclose under ERISA § 102(b), 29 U.S.C. § 1022(b)
       The Transferee Class first asserts that that the Plan fiduciaries breached
their fiduciary duties under ERISA by failing to disclose the annuity
transaction’s effect on payor responsibilities and participant enrollment in the
Plan. At the outset, the following is undisputed: (1) the Plan provided
Summary Plan Descriptions (“SPDs”); (2) the Plan fiduciaries promptly
disclosed the amendment shortly after its adoption; and (3) the annuity
transaction did not change the form or amount of benefits. However, Plaintiffs
argue that the pre-amendment SPDs were insufficient because they did not
give notice of the annuity transaction.
       ERISA § 102(b) requires an SPD to describe “circumstances which may
result in disqualification, ineligibility, or denial or loss of benefits.” 17 In turn,
the pertinent regulation promulgated by the Department of Labor (“DOL”)
requires an SPD to describe “circumstances which may result in . . . loss[] . . .
of any benefits that a participant or beneficiary might otherwise reasonably
expect the plan to provide.” 18 Appellants first argue that the Verizon Employee
Benefits Committee (“VEBC”), a Verizon plan fiduciary, failed to provide




       14 See Cobb v. Cent. States, 

, 635 (5th Cir. 2006); see also Hermann Hosp.
v. MEBA Med. & Benefits Plan, 

, 1288–89 (5th Cir.1988) (considering ERISA
standing as a question of subject matter jurisdiction).
       15 See Fed. R. Civ. P. 12(b)(1).
       16 Paterson v. Weinberger, 

, 523 (5th Cir. 1981).
       17 29 U.S.C. § 1022(b) (2012).
       18 29 C.F.R. § 2520.102-3(l) (2015).

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                                       No. 14-10553
compliant SPDs by not disclosing the possibility that benefit obligations could
be transferred to an insurance-company annuity absent a plan termination or
spin-off/merger. As explained below, this argument lacks merit in light of this
court’s precedent, which holds that ERISA does not require SPDs to describe
future terms, and statutory language requiring only retrospective notice of
plan amendments.
       First, as Appellees note, we have previously interpreted ERISA
disclosure requirements as only extending to current aspects of the plan, and
to the exclusion of potential changes which are contingent upon a plan
amendment. In Wise v. El Paso Natural Gas Co., 19 this court held that “Section
1022(b) relates to an individual employee's eligibility under then existing,
current terms of the Plan and not to the possibility that those terms might
later be changed, as ERISA undeniably permits.” 20 The decisions cited by
Appellants do not vitiate this principle, as both decisions addressed the
disclosure of existing plan terms, not potential, amendment-contingent
terms. 21 In this case, prior to the October-2012 amendment directing the
annuity purchase, the Plan only allowed for the transfer of benefit obligations
through the Plan’s termination or merger into another pension plan; SPDs
issued prior to the amendment were only required to address those
circumstances.
       Further, it is undisputed that the Plan fiduciaries provided notice
shortly after the amendment’s adoption, well within the time limits imposed
for notice of plan amendment. ERISA only requires that administrators
provide a summary description of any material modification or change “not



       19 

(5th Cir. 1993).
       20 

       21 See Koehler v. Aetna Health Inc., 

, 189 (5th Cir. 2012); Layaou v. Xerox

Corp. 

, 211 (2d Cir. 2001)).
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                                       No. 14-10553
later than 210 days after the end of the plan year in which the change is
adopted.” 22 In keeping with this language, we previously held in Martinez v.
Schlumberger, Ltd. 23 that, within the context of ERISA disclosure
requirements, there is no employer duty “to affirmatively disclose whether it
is considering amending its benefit plan.” 24 Appellees also correctly note that
the pre-amendment SPDs advised participants of Verizon’s reservation of the
right to amend the Plan, and the possibility that an amendment might affect
their rights under the Plan.
      As a second basis for violation, the Transferee Class alleges that the pre-
amendment SPDs failed to advise of the possible “loss of benefits.” The district
court rejected this claim because the Transferee Class failed to allege a change
in the amount of benefits they would receive. On appeal, the Transferee Class
acknowledges that the amount of benefits remains unchanged under the terms
of the annuity contract. However, the Transferee Class also asserts that the
phrase “loss of benefits” encompasses federal protections under ERISA and the
Pension Benefit Guaranty Corporation (“PBGC”). 25 Appellants, however,
provide no authority supporting the inclusion of ERISA and PBGC protections
as “benefits” within the meaning of § 102. Countenancing against Appellants’
argument, this interpretation of “benefits” is more expansive than the ERISA
regulation governing the purchase of annuities by plan fiduciaries
(“Annuitization Regulation”), which requires that such transactions guarantee
a participant’s “entire benefit rights.” 26 As discussed further below, the annuity
agreement does not guarantee ERISA and PBGC protections, but Appellants




      22 29 U.S.C. § 1024(b)(1)(B).
      23 

(5th Cir. 2003).
      24 

      25 

C.F.R. § 2510.3-3(d)(2)(ii) (2015).

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                                    No. 14-10553
do not dispute that the transaction complies with the Annuitization
Regulation’s guarantee requirement.
      Accordingly, we find no error in the district court’s dismissal of the
Transferee Class’s claim under ERISA § 102.
           C. Fiduciary Duties under ERISA § 404(a)(1), 29 U.S.C. § 1104
      The Transferee Class asserts several breaches of fiduciary duties under
ERISA § 404(a)(1)(A), which requires that plan fiduciaries use plan assets “for
the exclusive purpose of[] . . . providing benefits” and “defraying reasonable
expenses of administering the plan.” 27 In doing so, a fiduciary must act “solely
in the interest of [plan] participants,” 28 and employ the “care, skill, prudence,
and diligence” of a “prudent man” acting in like circumstances. 29 Section 8.5 of
the Plan mirrors that of § 404, requiring that assets of the Plan be used “for
the exclusive benefit of [participants and beneficiaries] and shall be used to
provide benefits under the Plan and to pay the reasonable expenses of
administering the Plan and the Pension Fund, except to the extent that such
expenses are paid by [Verizon].” 30
      Fiduciary vs. Non-Fiduciary Functions. First, it behooves the analysis to
distinguish between fiduciary and non-fiduciary roles, a function-centric
consideration “that is aided by the common law of trusts which serves as
ERISA’s backdrop.” 31 Further, though an employer may, at different times,
wear “hats” as both a sponsor and administrator, 32 “fiduciary duties under
ERISA are implicated only when it acts in the latter capacity.” 33 Thus, where




      27 29 U.S.C. § 1104(a)(1)(A) (2012).
      28 

      29 

      30 ROA.83.
      31 Beck v. PACE Intern. Union, 

, 101 (2007).
      32 See Pegram v. Herdrich, 

, 225–26 (2000).
      33 

.

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                                       No. 14-10553
a claim alleges breach of an ERISA fiduciary duty, the threshold question is
whether the “person employed to provide services under a plan . . . was acting
as a fiduciary (that is, was performing a fiduciary function) when taking the
action subject to complaint.” 34 In making this threshold evaluation, “[a] person
is a fiduciary only to the extent he has or exercises specified authority,
discretion, or control over a plan or its assets.” 35
       In contrast, we have previously held that actions by a plan sponsor “to
modify, amend or terminate the plan” are outside the scope of fiduciary duties;
“such decisions are those of a trust settlor, not a fiduciary.” 36 In Hughes
Aircraft Co. v. Jacobson, the Supreme Court noted that, “[i]n general, an
employer’s decision to amend a pension plan concerns the composition or
design of the plan itself and does not implicate the employer’s fiduciary duties
which consist of such actions as the administration of the plan’s assets,” as well
as decisions “regarding the form or structure of the Plan . . . .” 37 The Jacobson
Court emphatically concluded that “without exception, plan sponsors who alter
the terms of a plan do not fall into the category of fiduciaries.” 38
       Courts have drawn a distinction between decisions to alter a plan, and
the implementation of those decisions. For example, in Beck v. PACE Intern.
Union, the Court noted the distinction between whether to terminate a plan
through an annuity purchase, and the fiduciary obligation in its selection of an




       34  

.
       35  Kirschbaum v. Reliant Energy, Inc., 

, 251 (5th Cir. 2008) (internal
quotation marks omitted); see also 29 U.S.C. § 1002(21)(A) (2012) (providing that “[a] person
is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority
or discretionary control respecting management of such plan or exercises any authority or
control respecting management or disposition of its assets[] . . . or (iii) he has any
discretionary authority or discretionary responsibility in the administration of such plan.”).
        36 

        37 Hughes Aircraft Co. v. Jacobson, 

, 444 (1999).
        38 

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                                       No. 14-10553
annuity provider. 39 Appellees rely in part upon Beck to support two sponsor-
fiduciary distinctions, distinctions which are disputed by Appellants but which
affect multiple issues.
      Beck involved an employer’s filling dual roles as plan sponsor and
administrator, and the Court considered the question of whether a plan
sponsor’s choice of plan termination through the purchase an annuity, rather
than merger with another pension plan, constituted a decision as a plan
sponsor or fiduciary. 40 The Beck Court first noted the general principle that an
employer’s decisions regarding the form or structure of a plan are immune from
ERISA’s fiduciary obligations, and that these decisions include termination
and (in most cases) merger. 41 Recognizing that ERISA imposed fiduciary
obligations on the method of termination, e.g. the fiduciary obligation on
selecting an annuity provider, the Beck Court acknowledged that the choice
between possible methods of termination, i.e. annuitization or merger, created
a plausible basis to consider merger as a fiduciary action within that context. 42
Ultimately, Beck did not reach ERISA’s fiduciary application to merger, as the
Court determined merger was not a permissible method of termination under
ERISA. 43
      Appellees first cite Beck in support of the proposition that the decision to
enter into an annuity is a sponsor decision immune from ERISA’s fiduciary
obligations. In turn, Appellants argue that Beck is inapposite as it analyzed a
plan termination, rather than an ongoing plan. This distinction does not vitiate
Beck’s application to the instant circumstances. The Beck Court broadly
described decisions regarding the form and structure of a plan as those of a


      39 

, 101–02 (2007).
      40 See 

      43 

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                                         No. 14-10553
plan sponsor, and its primary focus on one type of sponsor decision does not
undercut the application to other sponsor decisions regarding a plan’s form and
structure. Accordingly, we hold the annuity amendment was a sponsor
function of plan design, authorized under ERISA through the Annuitization
Regulation.
      Appellees also cite Beck for the principle that an employer’s decision to
maintain or remove pension liabilities is a design decision and settlor function.
In deciding that merger was not a permissible form of termination, the Beck
Court compared the effect of annuity purchases and merger, emphasizing that
the latter “represents a continuation rather than a cessation of the ERISA
regime.” 44 Despite discussing the annuity purchase’s effect of “formally
sever[ing] the applicability of ERISA to plan assets and employer obligations”
(including the employer’s release from ERISA’s requirement to make PBGC
premium payments), the Beck Court did not impute fiduciary aspects to the
sponsor’s decision to sever ERISA’s applicability. 45 Consistent with Beck,
therefore, we consider the decision to transfer pension assets outside ERISA
coverage as a sponsor decision immune from fiduciary obligations.
      Also relating to the sponsor-fiduciary distinction, Appellants assert that
the district court mischaracterized some of their claims as asserted against
Verizon and the Plan fiduciaries, VIMCO and VEBC. In Appellants’ view, the
claim was asserted only against the Plan fiduciaries, and the district court’s
considering the claim as asserted against Verizon was questionable. However,
regarding some of the alleged bases for fiduciary breach, the allegations in the
SAC implicate the act of amending the Plan to direct the annuity purchase, an
act by Verizon as settlor, as well as the acts involved in implementing the



      44   

(emphasis in original).
      45   

14-10553    Document: 00513680657      Page: 18   Date Filed: 09/15/2016



                                 No. 14-10553
annuity purchase, which involve functions of the Plan fiduciaries. As a result,
we hold the district court properly addressed Verizon’s role as sponsor, before
addressing the implementation of the transaction involving VIMCO and
VEBC. We separately consider these alleged breaches below.
            1. Alleged Breach by Plan Sponsor
      Appellants first assert that Verizon breached its fiduciary duty by
entering into the annuity transaction, which resulted in the partial transfer of
pension obligation from an ongoing Plan. Because such a transfer during an
ongoing plan is not expressly authorized by an ERISA provision or regulation,
Appellants posit that Verizon’s decision was subject to ERISA’s fiduciary duty
provisions. This argument lacks merit for several reasons: (1) precedent
suggests that the amendment was a settlor function; (2) ERISA and related
regulations authorize annuity purchases, and do not prohibit such purchases
during an ongoing plan; and (3) even assuming ERISA prohibits annuity
purchases during an ongoing plan, Appellants cite no authority that the
prohibition’s violation would subject an otherwise settlor function to fiduciary
requirements.
      First, the precedent cited above describes the decision to amend a
pension plan concerning the composition or design of the plan as a settlor
function, immune from fiduciary strictures. Accordingly, the decision to amend
the Plan and transfer assets into an annuity was made solely by Verizon in its
settlor capacity. Appellants’ argument against this principle, broadly that any
action which disposes of plan assets creates fiduciary obligations, is not
supported by any authority. The Beck Court tangentially addressed
Appellants’ argument, noting that “[t]he purchase of an annuity is akin to a
transfer of assets and liability (to an insurance company)” yet maintaining its




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                                      No. 14-10553
position that a decision to enter into an annuity (albeit during a plan
termination) was a settlor function. 46
       Secondly, Appellants do not proffer any authority that would prohibit
the transfer from an ongoing plan via an annuity transaction. At the same
time, Appellees respond with ERISA provisions and regulations which suggest
such transactions are authorized, and at least are not foreclosed.
       In the first instance, ERISA provisions, as well as regulations
promulgated by the Department of Labor, set forth several mechanisms by
which an employer may remove liabilities from a pension plan, one of which is
through transfer to an insurance company by an annuity purchase. 47 Upon
transfer via annuity purchase, an individual is no longer “a participant covered
under an employee pension plan or a beneficiary receiving benefits under an
employee pension plan,” so long as the individual’s entire benefit rights are (1)
guaranteed by the insurance company; (2) enforceable against the insurance
company at the sole choice of the individual; and (3) the individual is issued
notice of the benefits to which he or she is entitled under the plan. 48 Appellants
do not dispute that the annuity transaction complied with these requirements,
transferring the entire benefit rights of the Transferee Class and satisfying the
three requirements for removal from the Plan.
       Regarding the ability of a plan sponsor to perform an annuity transfer
during an ongoing plan, neither ERISA itself nor the regulations promulgated
thereunder speak directly to this point. However, a Department of Labor
interpretive bulletin describes circumstances in which a pension plan might
purchase annuity contracts, and notes that “in the case of an ongoing plan,



       46Id. at 102.
       47See 29 C.F.R. § 2510.3-3(d)(2)(ii) (2015). See also 29 U.S.C. §§ 1341 (termination);
1058 (merger).
      48 29 C.F.R. § 2510.3-3(d)(2)(ii) (2012).

                                             19
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                                    No. 14-10553
annuities might be purchased for participants who are retiring or separating
from service with accrued vested benefits.” 49 Although the bulletin does not
specifically describe this circumstance, the bulletin describes potential
circumstances non-exclusively, suggesting that such transfers are permitted,
especially when considered in conjunction with the annuity-transfer
regulation.
      Finally, even assuming arguendo that ERISA prohibits annuity
purchases during ongoing plans, Appellants cite no authority which would
make the amendment a fiduciary function due to violation of that prohibition.
In light of the above considerations, we hold that the transfer of pension
liabilities from an ongoing plan through an annuity transaction amendment is
a settlor function, permitted under ERISA, or, alternatively, that such
transactions are not subject to fiduciary duty requirements.
              2. Alleged Breaches by Plan Fiduciaries
      The Transferee Class also alleges breach of fiduciary duty in the
implementation of the amendment. In this regard, the Transferee Class
asserts several grounds, alleging that Plan fiduciaries: (1) failed to hold the
annuity contract as a Plan asset; (2) failed to obtain consent of the Transferee
Class members; (3) failed to communicate with the Transferee Class members
prior to the annuity transaction; (4) violated the terms of § 8.5 of the Plan; and




      49   See Interpretive Bulletins Relating to the Employee Retirement Income Security
Act of 1974, 60 Fed. Reg. 12328, 12328 (Mar. 6, 1995) (providing,
        [p]ension plans purchase benefit distribution annuity contracts in a variety of
        circumstances. Such annuities may be purchased for participants and
        beneficiaries in connection with the termination of a plan, or in the case of an
        ongoing plan, annuities might be purchased for participants who are retiring
        or separating from service with accrued vested benefits.).
                                           20
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                                        No. 14-10553
(5) failed to select more than one annuity provider. 50 We consider these
breaches seriatim.
       Failure to Hold Annuity Contract within Plan as Plan Asset. The
Transferee Class maintains that Plan beneficiaries should have held the
annuity contract as a Plan asset (“internal annuity”), and that such an
arrangement would have maintained ERISA and PBGC protections for the
benefit of the class members.
       However, as the district court reasoned, the plan amendment did not
allow for the Plan to remain obligated for the benefit of the Transferee Class.
As noted above, the Plan fiduciaries are only responsible for decisions over
which they have discretion. Although disputed by Appellants, the terms of the
amendment clearly provide that the Plan will have no obligation to make any
payment for the pension benefits of the Transferee Class after the annuity
transaction. Within the strictures of the amendment terms, Plan fiduciaries
were without discretion to maintain pension obligations of the Transferee
Class within the Plan. 51
       Failure to Obtain Transferee Consent. The Transferee Class also asserts
that the Plan fiduciaries should have obtained the consent of the Transferee
Class members before transferring the pension obligations to the annuity



       50  The Transferee Class also alleged that the annuity transaction breached a fiduciary
duty by underfunding the Plan in violation of several statutes. The district court dismissed
this claim and, although the Transferee Class makes passing reference to underfunding in
its brief, it does not substantively urge review the district court’s dismissal of this ground on
appeal. The issue is therefore waived. See Cinel v. Connick, 

, 1345 (5th Cir. 1994)
(citation omitted).
        51 The SAC does not describe in any detail how selecting an internal annuity was an

amendment-compliant option within the discretion of Plan fiduciaries. At a minimum,
however, maintaining the PBGC protections sought by the Transferee Class requires the
payment of premiums, see 29 U.S.C. § 1307, which would run afoul of the amendment’s
requirement that, after the annuity transaction, “the Plan shall have no further obligation to
make any payment with respect to any pension benefit of a Designated Participant.” ROA.120
(emphasis added).
                                              21
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                                      No. 14-10553
contract. In the first instance and as the district court noted, the determination
to transfer assets to an annuity was a decision made by Verizon as settlor, and
does not fall within the scope of its fiduciary duties. In Hughes Aircraft Co. v.
Jacobson, the Supreme Court held that three fiduciary claims were foreclosed
because “without exception, plan sponsors who alter the terms of a plan do not
fall into the category of fiduciaries.” 52 The Eighth Circuit decision in Howe v.
Varity Corp., 53 a pre-Jacobson decision to which Appellants cite for the consent
requirement, does not succeed in imputing fiduciary obligations to an action
which the Supreme Court has deemed immune from those obligations. We
further note that Appellants’ position is neither supported by the terms of
ERISA, which itself contains no such requirement for consent, either in the
provisions detailing fiduciary duties, 54 or in the provisions governing ERISA-
compliant annuity purchases. 55
       Failure to Communicate with Transferees. The Transferee Class also
asserts that Plan fiduciaries breached their duty by not communicating with
beneficiaries. Although the Transferee Class asserts that “ERISA and its
accompanying regulations” require such communication, the Transferee Class
does not cite any actual ERISA provisions, and only cites to the Ninth Circuit
decision of Booton v. Lockheed Med. Benefit Plan, an inapposite opinion which
discussed the ERISA-required documentation following the denial of
benefits. 56 Although the Annuity Regulation does require that participants
receive notice of the terms of the benefits to which they are entitled as part of




       52 Hughes Aircraft Co. v. Jacobson, 

, 443 (1999) (citing Lockheed Corp. v.
Spink, 

, 890-91 (1996)).
       53 

, 756 (8th Cir. 1994), aff’d on other grounds, 

(1996).
       54 29 U.S.C. § 1104(a).
       55 29 C.F.R. § 2510.3-3(d)(2)(ii).
       56 

, 1463 (9th Cir. 1997).

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                                     No. 14-10553
the annuity transaction, 57 it is undisputed that the Transferee Class received
this notice. After the annuity transaction, the benefits are no longer governed
by ERISA, and any nondisclosure does not give rise to a cognizable action. 58
      Expenses of Annuity Transaction. As part of the annuity transaction, it
is undisputed that Verizon paid Prudential a total of $8.4 billion, $1 billion
more than the amount of the transferred liabilities. The Transferee Class
alleges that Verizon violated § 8.5 of the Plan, requiring that Plan assets be
used for the exclusive benefit of Plan beneficiaries and participants, as well as
reasonable expenses of administering the Plan and Pension Fund. In the SAC,
the Transferee Class alleges as follows:
      However, almost $1 billion more than necessary to cover the
      transferred liabilities was paid by Prudential by the Plan for
      amounts other than benefits and reasonable expenses of
      administering the Plan. The extra $1 billion payment was applied
      toward expenses, not for administering the ongoing Plan, but to
      enable avoidance of payment of such expenses by the Plan sponsor,
      [Verizon], thus violating Section 8.5 . . . . 59

      The extra $1 billion payment was used to pay Verizon’s-the
      settlor’s obligations for third-party costs related to the annuity
      transaction, including fees paid to outside lawyers, accountants,
      actuaries, financial consultants and brokers. Those expenses and
      fees should have been charged to Verizon’s corporate operating
      revenues, not charged to the Plan and Master Trust. 60

      The district court ruled that these allegations failed to state a claim by
not specifying “which aspects of the extra $1 billion of expenditures were
unreasonable, or how they were unreasonable.” 61 The Transferee Class argues
that the district court’s reasonableness analysis is misplaced, and that the


      57 29 C.F.R. § 2510.3-3(d)(2)(ii).
      58 See Beck v. PACE Intern. Union, 

, 106 (2007).
      59 SAC at ¶ 114 (emphasis in original).
      60 

115.
      61 Lee III, 

, at *4 (citing Lee 

).

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                                   No. 14-10553
proper inquiry is whether the additional $1 billion in administrative costs was
a settlor cost which was wrongfully paid from Plan assets, constituting a
fiduciary breach. The Transferee Class supports their position by citing to a
Department of Labor advisory opinion discussing plan-related expenses for
which a settlor is responsible. The advisory opinion provides:
      Expenses incurred in connection with the performance of settlor
      functions would not be reasonable expenses of a plan as they would
      be incurred for the benefit of the employer and would involve
      services for which an employer could reasonably be expected to
      bear the cost in the normal course of its business operations.
      However, reasonable expenses incurred in connection with the
      implementation of a settlor decision would generally be payable by
      the plan. 62

Appellants quote the first portion, but omit the italicized portion of the
advisory opinion from their brief. 63 The effect of the advisory opinion, upon
which Appellants otherwise rely, is two-fold. First, by contemplating that
expenses implementing a settlor decision, such as an amendment and re-
structuring of a plan, are payable by the plan, the advisory opinion refutes
Appellants’    argument     that    expenditures     not   associated    with    plan
administration are unreasonable. Second, since implementation expenses by
the plan are permitted to the degree they are reasonable, the advisory opinion
focuses the critical inquiry on the reasonableness of the expenses.
      In light of the foregoing, reasonableness of the expenses must be
addressed by the Transferee Class’s allegations. Here, although the allegations
enumerate various expenses associated with the implementation of Verizon’s
decision as settlor, they wholly fail to address how those expenses are not
reasonable expenses which are payable by the plan. To be sure, $1 billion in


      62 Dept. of Labor Advisory Opinion 2001-01A (January 18, 2001) (emphasis added).
Available at: http://www.dol.gov/ebsa/regs/aos/ao2001-01a.html.
      63 See Blue Br. 38–39.

                                         24
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                                      No. 14-10553
expenses is a large sum but, in light of the $7.5 billion in attendant obligations,
we will not conclude that this allegation alone is sufficient to support
unreasonableness under our pleading standards. In light of the threadbare
allegations, along with the size and complexity of the annuity transaction, we
agree with the district court’s dismissal of this ground as insufficiently
supported.
       Failure to Select Multiple Annuity Providers. The Transferee Class
further alleges a breach of fiduciary duty by selecting Prudential as the sole
annuity provider. Regarding the selection of an annuity provider, this court
described the relevant inquiry in Bussian v. RJR Nabisco, Inc., as follows:
       [W]hether the fiduciary, in structuring and conducting a thorough
       and impartial investigation of annuity providers, carefully
       considered [the factors enumerated in the Department of Labor
       Interpretive Bulletin 95-1] and any others relevant under the
       particular circumstances it faced at the time of decision. If so, a
       fiduciary satisfies ERISA's obligations if, based upon what it
       learns in its investigation, it selects an annuity provider it
       “reasonably concludes best to promote the interests of [the plan's]
       participants and beneficiaries.” 64

       In a later decision, we clarified that the test of fiduciary prudence “is one
of conduct, not results.” 65 Even where a fiduciary’s conduct does not meet that
standard, “ERISA's obligations are nonetheless satisfied if the provider
selected would have been chosen had the fiduciary conducted a proper
investigation.” 66
       In support of this showing, the Transferee Class simply alleges that a
more prudent choice would have been to contract with more than one insurer,
to avoid “put[ting] all of the Plan’s eggs in one basket” and “placing everyone


       64 

, 300 (5th Cir. 2000) (quoting Donovan v. Bierwirth, 

, 271
(2d Cir. 1982)) (second alteration in original).
       65 Kirschbaum v. Reliant Energy, Inc., 

, 253 (5th Cir. 2008).
       66 Bussian v. RJR Nabisco, Inc., 

, 300 (5th Cir. 2000) (citation omitted).

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                                     No. 14-10553
in jeopardy of losing retirement benefits based upon the fortunes of a single
insurer.” 67 The district court ruled that these allegations did not support a
fiduciary breach because they were conclusory. 68 While that is a basis for
dismissing this ground, the allegations also only implicate the results of the
process, and not the conduct of FCI.
      Additionally, however, the SAC includes allegations implicating the
conduct of the Plan fiduciaries, asserting that the Prudential selection occurred
on the same day as the amendment’s adoption and that “VIMCO and Plan
fiduciaries did not prudently allow any period of time, much less a reasonable
time period for consideration [of the annuity provider(s)].” 69 Acknowledging
that these allegations might plausibly assert that the Plan fiduciaries did not
consider any annuity provider other than Prudential, the district court ruled
that such an interpretation nevertheless was rendered implausible in light of
other allegations in the SAC. To wit, the SAC alleges both that VIMCO
employed FCI almost two months prior to the alleged date of decision, 70 and
that FCI had submitted a written determination of the transaction’s
compliance with ERISA over a month prior to the date of the amendment. 71
      We agree, and find no error in the district court’s dismissal of the
Transferee Class’s claim for fiduciary breach.
           D. Violation of ERISA § 510, 29 U.S.C. § 1140
      The Transferee Class also alleged a violation of ERISA § 510 in the Plan
amendment’s transfer of benefit obligations for only certain Plan participants,




      67 SAC at ¶ 109.
      68 See Lee III at 

, at *7.
      69 SAC at ¶ 110.
      70 

29(A).
      71 

29(C).

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                                       No. 14-10553
asserting that such expulsion represented intentional interference with rights
of the transferred participants. 72
       Section 510 provides that it is “unlawful for any person to discharge, fine,
suspend, expel, discipline, or discriminate against a participant . . . for the
purpose of interfering with the attainment of any right to which such
participant may become entitled under the plan.” 73 The district court
dismissed this claim, ruling that the Transferee Class failed to allege a viable
right with which Verizon intended to interfere. 74
       Although acknowledging that § 510 requires discrimination “for the
purpose of interfering with” a right, Appellants posit that § 510 prohibits
expulsion without any intent-to-interfere requirement. Appellees argue that
the prohibition on expulsion, like that on discrimination, must be made with
the intent to interfere with a right under the plan. Neither party provides
authority for their positions, and instead rely solely on their interpretation of
the provision’s language.
       Appellees’ argument that expulsion must be attended by intent to
interfere in order to be actionable, however, is supported by a practical
consideration. Appellants’ construction would divorce the intent-to-interfere
requirement from any prohibition other than discrimination, which would also
divorce those prohibitions from the object of the interference, i.e. “any right to
which such participant may become entitled under the plan.” Such a reading,


       72 As an initial point, Appellants argue that this case brings the question of whether
a plan amendment can be actionable under § 510 directly before the court, and cites several
previous opinions which did not address the issue. See McGann v. H & H Music Co., 

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

(1992); Hines v. Mass. Mut. Life Ins. Co., 

, 210 n.5 (5th Cir. 1995), overruled
on other grounds, Arana v. Ochsner Health Plan, 

(5th Cir. 2003). However,
because we hold that Appellants failed to allege a right with which Verizon intended to
interfere, the issue is not before us.
       73 29 U.S.C. § 1140.
       74 Lee III, 

, at *2 (citing Lee 

).

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                                       No. 14-10553
which separates ERISA prohibitions from any rights in the ERISA-governed
plan, is overly broad.
      Thus reading the expulsion prohibition to require an intent to interfere
with a right under the Plan, Appellees proffer two bases for affirming the
district court’s dismissal of this claim. First, as the district court ruled, the
Transferee Class did not identify a viable right with which Verizon interfered.
In the SAC, the Transferee Class alleges interference with two rights, their
continued participation in the Plan, and ERISA and PBGC protections. The
Transferee Class asserts their right to continued participation arises from the
language in the SPD, providing: “You are a plan participant as long as you
have a vested benefit in the plan that has not been paid to you in full.” 75 The
district court rejected this argument, noting that the Annuitization Regulation
provides that an individual ceases to be a participant when benefit rights are
guaranteed by an insurance company. 76 On appeal, Appellants respond that,
where the language of an SPD conflicts with that of a regulation, the SPD
should control. This argument is unavailing even assuming the SPD controls
because the SPD advised participants of the potential amendments which
could affect their rights. 77 Although unaddressed by the district court, the
Transferee Class assertion of rights in ERISA and PBGC protections is
unsupported. As previously discussed regarding Appellants’ similar assertion
in Issue I, there is little support in ERISA provisions or regulations, or case
law, for including ERISA protections and PBGC benefits as rights to which a
plan participant is entitled. 78 Further, as Appellees point out, the right to any




      75 ROA.77.
      76 See 29 C.F.R. § 2510.3-3(d)(2)(ii) (2015).
      77 ROA.75.
      78 See 

.

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                                      No. 14-10553
of ERISA and PBGC protections is dependent on the class members’ right to
continued participation.
       By failing to allege a viable right with which the amendment interfered,
the Transferee Class failed to state a claim and we find no error in the
dismissal of this claim.
            E. Constitutional Standing
       On behalf of the Non-Transferee Class, Plaintiff Pundt asserts, through
ERISA § 502(a)(2), 29 U.S.C. §§ 1132(a)(2) and (a)(3), a claim for relief under
ERISA § 409(a), 28 U.S.C. § 1109, for violation of fiduciary obligations by the
Plan fiduciaries. The district court ruled in Lee III that Pundt lacked
constitutional standing to assert this claim, as asserted in the SAC, by
reference to its prior basis for dismissal in Lee II. 79 Pundt challenges this ruling
on appeal, and we must first address this challenge prior to any consideration
of the merits since “[t]he requirement that jurisdiction be established as a
threshold matter . . . is inflexible and without exception.” 80
       Section 502(a)(2) of ERISA allows a civil action to be brought by “a
participant, beneficiary or fiduciary for appropriate relief under [ERISA
§ 409].” 81 In turn, § 409(a) creates a right to relief against fiduciaries for the
restoration of any loss to a plan resulting from the breach of “any of the
responsibilities, obligations, or duties imposed upon fiduciaries by this
subchapter.” 82 On appeal, the Non-Transferee Class asserts that Plan
fiduciaries breached fiduciary duties by paying an excessive and unreasonable
expense, echoing the ERISA § 404 basis alleged by the Transferee Class. 83



       79See Lee III, 

, at *2 (citing Lee 

).
       80Steel Co. v. Citizens for a Better Env’t, 

, 94–95 (1998).
      81 29 U.S.C. 1132(a)(2) (2012).
      82 29 U.S.C. 1109 (2012).
      83 As with the allegations by the Transferee Class regarding breach of fiduciary duties

under ERISA § 404(a), the Non-Transferee Class alleged below that the annuity transaction
                                             29
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                                        No. 14-10553
       The dispute centers not on whether Pundt has statutory standing under
§ 502, but instead whether he has constitutional standing under Article III. 84
In order to establish the “irreducible, constitutional minimum” of Article-III
standing, 85 “a plaintiff must show (1) an injury in fact, (2) a sufficient causal
connection between the injury and the conduct complained of, and (3) a
likelihood that the injury will be redressed by a favorable decision.” 86 The
showing involves an injury-in-fact requirement that the plaintiff has a
“personal stake in the outcome of the controversy,” 87 such that the injury is
“concrete and particularized,” and “actual or imminent, not conjectural or
hypothetical.” 88 “An allegation of future injury may suffice if the threatened
injury is ‘certainly impending,’ or there is a ‘substantial risk’ that the harm
will occur.’” 89
       The district court ruled that Pundt had failed to allege an injury in fact
sufficient to support constitutional standing. Appellants argue Pundt was
injured through “losses to Plan assets held on [Pundt’s] behalf as a direct result
of the fiduciary mismanagement of Plan assets in violation of ERISA,” and that
this “invasion of his statutory right to proper management of Plan assets” is
sufficiently concrete to provide standing. 90 Appellees argue instead that
constitutional standing requires allegations to support injury against an




underfunded the Plan in violation of ERISA and the Internal Revenue Code. The Non-
Transferee Class, however, does not urge review of those allegations on appeal.
       84 U.S. CONST. art. III, § 2.
       85 Lujan v. Defenders of Wildlife, 

, 560 (1992).
       86 Susan B. Anthony List v. Driehaus, --- U.S. ---, 

, 2341 (2014) (quoting

) (internal quotation marks and alterations omitted).
       87 

v. Seldin, 

, 498 (1975)).
       88 

504 U.S. at 560) (internal quotation marks omitted).
       89 

v. Amnesty Int’l USA, 568 U.S. ---, --- n.5, 

, 1147,

1150 n.5) (internal quotation marks omitted).
       90 Blue Br. 52.

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                                      No. 14-10553
individual’s benefit payments, rather than injury to the plan as a whole. We
agree with the district court’s dismissal for lack of subject matter jurisdiction.
       Direct Harm to Participants. Pundt first argues that fiduciary
misconduct to his defined benefit plan presents individually cognizable harm,
but this position is not supported by case law. The cases cited by Appellants
discuss plans which, in contrast to the defined-benefit plan at issue here,
present a more direct risk of harm from fiduciary misconduct. 91 For example,
as the Supreme Court explained in LaRue v. DeWolff, Boberg & Assocs., “[f]or
defined contribution plans . . . fiduciary misconduct need not threaten the
solvency of the entire plan to reduce benefits below the amount that
participants would otherwise receive.” 92 As a result, other circuit courts have
held that participants in defined-contribution plans had redressable, Article
III standing because alleged fiduciary breaches had a direct effect on the
amount of benefits. 93
       A defined-contribution plan presents a starkly different circumstance
than a defined-benefit plan, which “‘as its name implies, is one where the
employee, upon retirement, is entitled to a fixed periodic payment.’” 94 In
contrast to plans in which fiduciary misconduct might present a more direct
impact on a participant’s interest, fiduciary misconduct in a defined-benefit
plan “will not affect an individual’s entitlement to a defined benefit unless it
creates or enhances the risk of default by the entire plan” since such a plan



       91 See Tolbert v. RBC Capital Markets Corp., 

(5th Cir. 2014) (considering
ERISA’s application to a wealth accumulation plan, another type of “employee pension
benefit plan” whereby benefits are dependent upon individual employee contributions and
investment performance); Leigh v. Engle, 

(7th Cir. 1984) (considering a profit-
sharing trust).
       92 LaRue v. DeWolff, Boberg & Assocs., Inc., 

, 255–56 (2008).
       93 See, e.g., Harris v. Amgen, Inc., 

, 735–36 (9th Cir. 2009).
       94 Beck v. PACE Intern. Union, 

, 98 (2007) (quoting Comm’r v. Keystone

Consol. Indus., Inc., 

, 154 (1993)).
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                                       No. 14-10553
“consists of a general pool of assets rather than individual dedicated
accounts.” 95 As a result, the injury to participants like Pundt is attenuated as,
prior to default under the plan, “the employer typically bears the entire
investment risk and—short of the consequences of plan termination—must
cover any underfunding as the result of a shortfall that may occur from the
plan's investments.” 96 Moreover, even where an employer is unable to cover
underfunding, the impact on participants is not certain since the PBGC
provides statutorily-defined protection of participants’ benefits. 97
       The degree to which the impact of fiduciary misconduct must be realized
on this causal chain in order to establish standing is a matter of first
impression for this court. However, considering similar circumstances, our
sister circuits have concluded that constitutional standing for defined-benefit
plan participants requires imminent risk of default by the plan, such that the
participant’s benefits are adversely affected; in turn, those courts have held
that fiduciary misconduct, standing alone without allegations of impact on
individual benefits, is too removed to establish the requisite injury. 98 The
Fourth Circuit found such “risk-based theories of standing unpersuasive, not
least because they rest on a highly speculative foundation lacking any
discernible limiting principle.” 99 It is true that those courts considered plans
which remained overfunded after the alleged fiduciary misconduct, while here
the complaint alleges that, immediately after the annuity transaction, the plan




       95 

(contrasting the impact of fiduciary misconduct in defined-
contribution and defined-benefit plans).
       96 Hughes Aircraft Co. v. Jacobson, 

, 439 (1999).
       97 See 29 U.S.C. § 1322.
       98 See, e.g., David v. Alphin, 

, 338 (4th Cir. 2013); Harley v. Minn. Mining

& Mfg. Co., 

, 906 (8th Cir. 2002), Perelman v. Perelman, 

,
517–520 (E.D. Pa. Jan. 24, 2013), aff’d, 

(3rd Cir. July 13, 2015).
       99 

.

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                                     No. 14-10553
was “left in a far less stable financial condition and underfunded by almost $2
billion or only about 66% actuarially funded.” 100
      However, regardless of whether the plan is allegedly under- or over-
funded, the direct injury to a participants’ benefits is dependent on the
realization of several additional risks, which collectively render the injury too
speculative to support standing. In the first instance and as previously
discussed, absent plan termination, the employer must cover any shortfall
resulting from plan instability. 101 Pundt’s allegation that the plan was
underfunded, and less financially stable, merely increases the relative
likelihood that Verizon will have to cover a shortfall. However, Pundt’s
allegations do not further allege the realization of risks which would create a
likelihood of direct injury to participants’ benefits. To wit, Pundt does not
allege a plan termination, an inability by Verizon address a shortfall in the
event of a termination, or a direct effect thereof on participants’ benefits; on
the contrary, Appellants concede on appeal that the actuarial underfunding
resulted in no direct injury to Pundt.
      Pundt also asserts that he directly suffered constitutionally cognizable
injury through invasion of his statutorily created right, specifically that the
alleged fiduciary breach from the mismanagement of Plan assets constitutes
an invasion of his statutory rights to proper Plan management, and invokes
principles of disgorgement. In David v. Alphin, however, the Fourth Circuit
rejected a similar argument as conflating the concepts of statutory and
constitutional standing. 102 We agree with the Fourth Circuit’s reasoning in this
regard. Article III standing is distinct from statutory standing, and we decline
to undermine this distinction by recognizing the latter as conferring the


      100 ROA.1386.
      101 See Hughes Aircraft Co. v. Jacobson, 

, 439 (1999).
      102 See 

.

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                                       No. 14-10553
former. Though the Supreme Court in Lujan v. Defenders of Wildlife allowed
that the invasion of statutory rights might create standing, Lujan addressed
constitutional standing arising from de facto injury, which is not alleged by a
breach of fiduciary duty. 103 Importantly, the Lujan Court clarified that a
legislative creation of rights does not eliminate the injury requirement for a
party seeking review. 104 Accordingly, at least with regard to a direct injury to
Pundt as a class representative, we conclude that the allegations are
insufficient to support his standing to assert this claim.
       Harm to Plan as Injury-in-Fact. While the alleged fiduciary misconduct
is thus too attenuated to suffice as direct injury to Pundt, Appellants
alternatively assert that the injury to the Plan itself is sufficient because Pundt
is statutorily authorized to assert the claim on behalf of the Plan.
       In support of his argument that a direct-benefit plan participant may
bring suit on behalf of the plan, Appellants quote (without attribution) the
Supreme Court’s discussion in Sprint Communications Co., L.P. v. APCC
Services, Inc., of the various examples where courts permit suit for the benefit
of parties that are not themselves bringing suit. 105 The Sprint Court held that
an assignee for collection has Article III standing, even where the recovered
proceeds of the claim are promised to the assignor, and even though the
assignee did not originally suffer any injury. 106 Supporting the proposition that
“the assignee of a claim has standing to assert the injury in fact suffered by the
assignor,” the Sprint Court cited to Vermont Agency of Natural Resources v.



       103 

, 577–78 (1992).
       104 See 

       105 

, 287–88 (2008) (noting that “federal courts routinely entertain suits

which will result in relief for parties that are not themselves directly bringing suit. Trustees
bring suits to benefit their trusts; guardians ad litem bring suits to benefit their wards;
receivers bring suit to benefit their receiverships; assignees in bankruptcy bring suit to
benefit bankrupt estates; executors bring suit to benefit testator estates; and so forth.”).
       

–87.

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                                     No. 14-10553
United States ex rel. Stevens. 107 In Vermont Agency, the Court held that a
relator had Article III standing to bring a qui tam action because, through the
government’s partial assignment its claim for damages, the government had
conferred its injury in fact to the relator. 108 In both Sprint and Vermont Agency,
the Court found that the petitioners had standing based on the history and
precedent permitting assignees to maintain suit. 109
      In light of this precedent, Appellants posit that Plan participants may
bring suit in a quasi-representative capacity, satisfying Article III’s injury-in-
fact requirement via an injury to the Plan. However, we decline to adopt this
position because both Sprint and Vermont Agency are distinguishable in
critical respects. First, those cases involved assignment between the parties,
while here the Plan and Plan participants have no such relationship, and the
Appellants do not argue that ERISA effects such an assignment (as did the
statute in Vermont Agency). Since the Court’s reasoning in both cases was
firmly grounded on the history and tradition of assignment relationships,
applying that reasoning to a circumstance in which no such relationship
existed is speculative.
      Second and even more significant, Sprint and Vermont Agency both
involved the assignor as the injured party. Here, on the other hand, Appellants
seek standing based on statutory authorization by an uninjured government,
to seek redress by one private party of the injury to another private party. As
the Eighth Circuit noted regarding similar circumstances, extending Sprint in
such a way raises “serious constitutional concerns,” because “[i]f Congress
could assign an ERISA plan’s claim to a participant who is not injured, . . . then
what principled reason would preclude Congress from assigning the claim to


      107 

(2000).
      108 See 

      109 See 

–86.

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                                         No. 14-10553
any stranger?” 110 Collectively, the facts and reasoning of Sprint and Vermont
Agency allow a practical answer to this question, permitting Congress to satisfy
the injury-in-fact by statutory assignment, yet only when the government is
the injured party. Bearing in mind that “[i]n no event . . . may Congress
abrogate Article III minima,” we decline to otherwise construe and expand the
reasoning of Sprint. 111
         For those reasons, we find no error the district court’s dismissing the
claim of the Non-Transferee Class for lack of subject matter jurisdiction.
III.     CONCLUSION
         For the foregoing reasons, we AFFIRM the judgment of the district court.




         110   McCullough v. AEGON USA Inc., 

, 1086 (8th Cir. 2009).
         111   Gladstone Realtors v. Village of Bellwood, 

, 100 (1979).
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