United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
             ___________

             No. 00-2214
             ___________

Carol Harley, et al.,                   *
                                        *
      Plaintiffs - Appellants,          *
                                        *
      v.                                *
                                        *
Minnesota Mining and Manufacturing      *
Company,                                *
                                        *
      Defendant - Appellee.             *
           ___________                      Appeals from the United States
                                            District Court for the
             No. 01-1213                    District of Minnesota.
             ___________

Carol Harley, et al.,                   *
                                        *
      Plaintiffs - Appellants,          *
                                        *
      v.                                *
                                        *
Guillo Agostini, et al.,                *
                                        *
      Defendants - Appellees.           *
                                   ___________

                              Submitted: March 12, 2001

                                  Filed: March 26, 2002
                                   ___________
Before LOKEN, MURPHY, and BYE, Circuit Judges.
                           ___________

LOKEN, Circuit Judge.

       These are two class actions against Minnesota Mining and Manufacturing
Company (“3M”) and certain 3M employees by participants and beneficiaries of the
3M Employee Retirement Income Plan (the “Plan”). The Plan is subject to the
Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001-1461.
Plaintiffs allege that 3M breached its fiduciary duties under ERISA by failing to
adequately investigate and monitor a $20 million investment of Plan assets in a hedge
fund, and by failing to discover and remedy a prohibited transaction involving the
fund advisor’s compensation. Plaintiffs appeal the district court’s1 grant of summary
judgment dismissing their claims. The principal issue is whether the court erred in
dismissing plaintiffs’ failure to investigate and monitor claims because the Plan is a
defined benefit plan with a substantial surplus. We affirm.2

                                  I. Background.

       3M is responsible for directing the investment of Plan assets, a responsibility
delegated to 3M’s Pension Asset Committee (the “PAC”). In exercising this
discretionary authority, both 3M and the PAC are Plan fiduciaries. See 29 U.S.C.
§ 1002(21)(A). This action arose out of a $20 million investment of Plan assets in the
Granite Corporation (“Granite”), a hedge fund that invested primarily in collateralized


      1
       The HONORABLE JOHN R. TUNHEIM, United States District Judge for the
District of Minnesota.
      2
       The court has received and considered amicus briefs from the Secretary of
Labor and the American Association of Retired Persons on behalf of plaintiffs, and
from the Association of Private Pension and Welfare Plans and the ERISA Industry
Committee on behalf of 3M.

                                         -2-
mortgage obligations (CMOs) – fixed income securities that are derived from and
secured by pools of private home mortgages.3 Granite was marketed to 3M’s pension
staff as an investment that would “maximize a consistent rate of return” for its
investors while investing in “low risk instruments.” Achieving a high rate of return
hinged on using leverage, which increased the risk to investors from changes in
market interest rates. Granite represented that it would hedge this risk by using
sophisticated quantitative models to maintain a market-neutral investment position.

      The Plan invested in Granite in 1990. The value of its Granite investment
increased to $34 million by February 1994, but a significant rise in interest rates in
March 1994 devastated the CMO market. Granite declared bankruptcy in April 1994,
and the Plan lost its entire investment.4 On the other hand, between 1993 and 1998,
3M’s voluntary contributions to the Plan exceeded ERISA’s minimum funding
requirements by $683 million, and the fair market value of the Plan’s assets increased
from approximately $3.4 billion in 1995 to over $6.3 billion in 1999. The Plan has
never failed to pay benefits to its beneficiaries over its sixty-seven year life.

       In investing Plan assets, a fiduciary must act “with the care, skill, prudence, and
diligence [of] a prudent man acting in a like capacity and familiar with such matters.”
Felber v. Estate of Regan, 

, 1086 (8th Cir. 1997), quoting 29 U.S.C.
§ 1104(a)(1)(B). A fiduciary that breaches this duty is liable “to make good to such
plan any losses to the plan resulting from each such breach.” 29 U.S.C. § 1109(a).


      3
      For a description of CMOs and the investment risks they entail, see Banca
Cremi, S.A. v. Alex. Brown & Sons, Inc., 

, 1022-23 (4th Cir. 1997).
      4
       The Plan has joined a lawsuit against Granite’s investment advisor and various
broker-dealers that sold CMOs to Granite in which plaintiffs allege fraud based on
Granite’s failure to maintain a market neutral position and on the overvaluing of
Granite securities. See ABF Capital Mgmt. v. Askin Capital Mgmt., L.P., 957 F.
Supp. 1308, 1317 (S.D.N.Y. 1997).

                                           -3-
The Secretary of Labor and plan participants, beneficiaries, and fiduciaries may sue
“for appropriate relief under section 1109.” 29 U.S.C. § 1132(a)(2).

       Plaintiffs filed this action in June 1996, alleging that 3M is liable to the Plan
under § 1109 because it breached its fiduciary duties by failing to investigate Granite
adequately prior to investing in 1990; by thereafter failing to monitor properly the
Granite investment; and by allowing the Plan to enter into a prohibited performance-
based compensation agreement with Granite’s investment advisor. Following
discovery, the district court granted 3M summary judgment on the prohibited
transaction claim because plaintiffs presented no evidence that the challenged
compensation was unreasonable. Harley v. Minnesota Mining & Mfg. Co., 42 F.
Supp. 2d 898, 911 (D. Minn. 1999). The court denied 3M summary judgment on the
failure to investigate and monitor claims because “a reasonable fact finder could
conclude that 3M’s investigatory and monitoring methods and actions were below
ERISA’s standard of reasonable 

. However, the court
ruled that the Plan did not suffer a remediable loss if 3M’s voluntary contributions
created an offsetting surplus and invited further discovery and a renewed motion for
summary judgment on that issue. 

After this ruling, plaintiffs filed the
second action asserting the same claims against seven members of 3M’s PAC.

      After further discovery on the surplus issue, 3M renewed its motion for
summary judgment. The district court concluded that the Plan has a sufficient surplus
and dismissed the failure to investigate and monitor claims because the Granite
investment caused no “losses to the plan” for purposes of 29 U.S.C. § 1109(a). In a
subsequent order, the court held that the claims against the PAC defendants are barred
by collateral estoppel and dismissed plaintiffs’ second suit. Plaintiffs appeal the
dismissal of their claims in both actions.




                                          -4-
              II. The Failure To Investigate and Monitor Claims.

       Plaintiffs allege that 3M violated the prudent-man standard of care when it
invested Plan assets in Granite without adequate investigation and monitoring. To
recover, plaintiffs must prove a breach of this fiduciary duty and loss to the Plan. See
Roth v. Sawyer-Cleator Lumber Co., 

, 917 (8th Cir. 1994). The district
court concluded that plaintiffs could not prove the requisite loss to the Plan:

      The Court believes, in the unique circumstances of this case, that if 3M
      indeed has contributed amounts sufficient to put the Plan’s portfolio in
      a surplus position, the Granite investment has not caused [plaintiffs] or
      the Plan any cognizable 

. The “unique circumstances” to which the court referred are
the relevant features of a defined benefit plan, which were recently described by the
Supreme Court in Hughes Aircraft Co. v. Jacobson, 

, 439-40 (1999)
(quotations omitted):

      Such a plan, as its name implies, is one where the employee, upon
      retirement, is entitled to a fixed periodic payment. . . . [T]he 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. . . .
      Given the employer’s obligation to make up any shortfall, no plan
      member has a claim to any particular asset that composes a part of the
      plan’s general asset pool. . . . Since a decline in the value of a plan’s
      assets does not alter accrued benefits, members similarly have no
      entitlement to share in a plan’s surplus . . . .

       On appeal, plaintiffs and the Secretary of Labor as amicus vigorously attack the
district court’s conclusion that there was no loss to the Plan. The Secretary warns that
a decision “that an employer-fiduciary is not liable for losses caused by fiduciary


                                          -5-
breaches when a defined benefit pension plan is overfunded will have a substantial
impact on the ability of the Secretary to enforce the statute.” We agree that the
district court’s focus on “losses to the plan” -- an essential element of the fiduciary’s
liability under § 1109(a) -- was misplaced. If there is no loss to the plan, then no one
may recover from the fiduciary on behalf of the plan, including the Secretary. That
is far more than need be decided in this case. Moreover, the district court’s
conclusion that there was no loss to the Plan seems contrary to the plain meaning of
§ 1109(a). 3M concedes, as it must, that the Plan’s $20 million investment in Granite
became worthless after Granite declared bankruptcy in April 1994. This loss reduced
the pool of Plan assets. We cannot agree with the court that “the Granite investment
has not caused . . . the Plan any cognizable 

.

       But that does not mean we disagree with the district court’s decision to dismiss
these claims. In our view, the proper focus is on whether plaintiffs have standing to
bring an action under § 1132(a)(2) to seek relief under § 1109 for this particular
breach of duty, given the unique features of a defined benefit plan as identified in
Hughes Aircraft. In a defined benefit plan, if plan assets are depleted but the
remaining pool of assets is more than adequate to pay all accrued or accumulated
benefits, then any loss is to plan surplus. As Hughes Aircraft made clear, plaintiffs
as Plan beneficiaries have no claim or entitlement to its surplus. If the Plan is
overfunded, 3M may reduce or suspend its contributions. See Hughes 

. If the Plan’s surplus disappears, it is 3M’s obligation to make up any
underfunding with additional contributions. If the Plan terminates with a surplus, the
surplus may be distributed to 3M. See 29 U.S.C. § 1344(d); Dame v. First Nat’l Bank
of Omaha, 

, 1019 (8th Cir. 2000). Thus, the reality is that a relatively
modest loss to Plan surplus is a loss only to 3M, the Plan’s sponsor.

      In these circumstances, we agree with the other half of the district court’s
conclusion -- “the Granite investment has not caused [plaintiffs] . . . any cognizable

. The question, then, is whether plaintiffs may

                                          -6-
nonetheless sue under 29 U.S.C. § 1132(a)(2) to recover on behalf of the Plan. We
answer that question in the negative because, in our view, two critical factors support
this construction of these ERISA remedial provisions.

       First, a contrary construction would raise serious Article III case or controversy
concerns. The doctrine of standing serves to identify cases and controversies that are
justiciable under Article III. An “irreducible constitutional minimum of standing” is
that “plaintiff must have suffered an ‘injury in fact’ -- an invasion of a legally
protected interest which is (a) concrete and particularized, and (b) actual or imminent,
not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 

, 560
(1992) (quotations and citations omitted). Although a statute may broaden the class
of redressable injuries, the Supreme Court has never held that Congress may do away
with the Article III requirement of “concrete injury.” 

These concerns have
led the Court to construe the antitrust standing conferred by Section 4 of the Clayton
Act, 15 U.S.C. § 15 (“any person . . . injured in his business or property by reason of
anything forbidden in the antitrust laws”) as not extending to injuries that are too
remote or indirect or speculative. See, e.g., Associated Gen’l Contractors of Cal., Inc.
v. Cal. State Council of Carpenters, 

, 535-46 (1983). Thus, the limits
on judicial power imposed by Article III counsel against permitting participants or
beneficiaries who have suffered no injury in fact from suing to enforce ERISA
fiduciary duties on behalf of the Plan.

       Unlike the dissent, we do not find this concern resolved by dicta in the
Supreme Court’s recent decision in Vermont Agency of Natural Res. v. United States
ex. rel Stevens, 

, 772 (2000), that designation as a statutory agent for
another party “would perhaps suffice” to confer standing to recover an injury suffered
by that party. In § 1132(a)(2), Congress generally authorized the Secretary,
participants, beneficiaries, and fiduciaries to sue for appropriate relief on behalf of
the plan. If the statute authorized any stranger to the plan to bring such an action,
would that suffice to confer standing? Surely not, for “Article III forecloses the

                                          -7-
conversion of courts of the United States into judicial versions of college debating
forums.” Valley Forge Christian College v. Americans United for Separation of
Church & State, Inc., 

, 473 (1982). The question in Vermont Agency
was the standing of private parties to bring qui tam lawsuits on behalf of the United
States. The Court answered that question in the affirmative for two reasons. First,
the qui tam statute partially assigned the government’s claim to the private qui tam
relator; here, on the other hand, § 1132(a)(2) contains no such assignment. Second,
the long tradition of qui tam actions in England and the American colonies persuaded
the Court that such actions are cases and controversies for purposes of Article III
standing. By contrast, the law of trusts is the starting point in interpreting and
applying ERISA’s fiduciary duties. See, e.g., Varity Corp. v. Howe, 

,
496-97 (1996). Under the law of trusts, “[a] particular beneficiary cannot maintain
a suit for a breach of trust which does not involve any violation of duty to him.”
RESTATEMENT (SECOND) OF TRUSTS § 214 cmt. b.

       Second, “[t]he primary purpose of [ERISA] is the protection of individual
pension rights.” H.R. REP. NO. 93-533 (1974), reprinted in 1974 U.S.C.C.A.N. 4639,
4639. Thus, the basic remedy for a breach of fiduciary duty is “to restor[e] plan
participants to the position in which they would have occupied but for the breach of
trust.” Martin v. Feilen, 

, 671 (8th Cir. 1992) (quotation omitted). Here,
the ongoing Plan had a substantial surplus before and after the alleged breach and a
financially sound settlor responsible for making up any future underfunding. The
individual pension rights of Plan participants and beneficiaries are fully protected.
Indeed, those rights would if anything be adversely affected by subjecting the Plan
and its fiduciaries to costly litigation brought by parties who have suffered no injury
from a relatively modest but allegedly imprudent investment. Thus, the purposes
underlying ERISA’s imposition of strict fiduciary duties are not furthered by granting
plaintiffs standing to pursue these claims. In addition to the Article III constitutional
limitations, prudential principles bear on the question of standing. One of those
principles is to require that “plaintiff’s complaint fall within the zone of interests to

                                          -8-
be protected or regulated by the statute . . . in question. Valley 

(quotation omitted).

       For these reasons, we conclude that plaintiffs’ failure to investigate and
monitor claims were properly dismissed if the Plan’s surplus was sufficiently large
that the Granite investment loss did not cause actual injury to plaintiffs’ interests in
the Plan.

       Plaintiffs challenge the district court’s conclusion that the Plan’s surplus is
adequate for this purpose as a matter of law. Plaintiffs argue that 3M must establish
that the Plan is fully funded “using the methodology mandated by ERISA.” In this
regard, plaintiffs posit that ERISA mandates use of either the plan-termination
valuation method prescribed when a defined benefit plan is spun off, transferred, or
merged into another, see 29 U.S.C. § 1058; or the method of determining whether a
plan is fully funded in the “RPA 94” minimum funding standard adopted by Congress
in 1994 to assure that defined benefit plans are adequately funded, see 29 U.S.C.
§ 1082(d). (For an explanation of the RPA 94 standard, see H.R. REP. NO. 103-826,
at 209 (1994), reprinted in 1994 U.S.C.C.A.N. 3773, 3981.)

       In our view, plaintiffs frame this issue incorrectly. Surplus is not an affirmative
defense that 3M must prove. Rather, absence of adequate surplus is an element of
plaintiffs’ standing under § 1132(a)(2) -- proof they are suing to redress a loss to the
Plan that is an actual injury to themselves. Plaintiffs have no evidence that the Plan
will terminate in the foreseeable future. Therefore, they may not satisfy this element
by proposing a termination valuation method because a hypothetical termination has
no relevance to the issue of whether they have suffered injury in fact. As the district
court observed, “ERISA does not require [ongoing] plans to maintain funding at
termination levels, a fact that the Supreme Court implicitly recognized in Hughes.”
(Mar. 29, 2000 Mem. & Order at 13.) Likewise, the district court properly rejected
plaintiffs’ contention that the Plan must be 100% fully-funded under the RPA 94

                                           -9-
valuation method. The statute does not use that funding level to determine whether
additional contributions are required, and 3M has never been required to make an
additional contribution.

       We agree with the district court that “[b]y nearly any measure, the 3M Plan is
a robust, richly-funded, ongoing plan.” (Id. at 18.) The actuarial value of the Plan’s
assets exceeded its actuarial accrued liabilities in 1993, before Granite’s bankruptcy,
and in every year thereafter. 3M has contributed $683 million more than its minimum
funding requirements since the loss of the $20 million Granite investment. Plaintiffs
failed to prove the absence of a substantial surplus under any relevant valuation
method. In these circumstances, the failure to investigate and monitor claims were
properly dismissed because plaintiffs suffered no injury-in-fact.5

                     III. The Prohibited Transaction Claim.

       The Plan agreed to pay Granite’s investment advisor, Askin Capital
Management (“ACM”), a fee contingent on the success of the Granite investment.
The Plan paid ACM approximately $1.17 million in March 1993, the only fee paid
during the life of the investment. ACM was a Plan fiduciary because it had discretion
to invest on behalf of the Plan. Plaintiffs argue that ACM’s fee arrangement violated
the prohibition against a fiduciary dealing with plan assets for its own account, see
29 U.S.C. § 1106(b)(1), because ACM determined the value of Granite’s holdings
without an independent valuation; and that 3M breached its fiduciary duty to the Plan
by failing to discover and remedy this prohibited transaction, see 29 U.S.C.
§ 1105(a)(2). The district court dismissed this claim because plaintiffs presented no
evidence the ACM fee was 

. We agree.

      5
        This decision does not insulate a fiduciary who invests the assets of an
overfunded defined benefit plan from liability to the plan for breach of the duty to
invest prudently. Both the Secretary of Labor and any party with a reversionary
interest in the plan’s surplus have standing to sue under 29 U.S.C. § 1132(a)(2).

                                         -10-
       Section 1106(b)(1) prohibits a fiduciary from “deal[ing] with the assets of the
plan in his own interest or for his own account.” However, § 1108(c)(2) provides that
“[n]othing in section 1106 of this title shall be construed to prohibit any fiduciary
from . . . receiving any reasonable compensation for services rendered . . . in the
performance of his duties with the plan.” 3M introduced uncontradicted expert
testimony that the compensation paid to ACM was reasonable.

        Plaintiffs counter this factual showing with a legal argument -- that
§ 1108(c)(2) does not apply to prohibited transactions under § 1106(b) but only
clarifies the exemption provided in § 1108(b)(2). Plaintiffs rely for this argument on
their interpretation of a regulation, 29 C.F.R. § 2550.408c-2(a). But in this case, the
general prohibition in § 1106(b)(1) -- that a fiduciary should not deal in plan assets
for its own account -- is alleged to have been violated when a fiduciary influenced its
own compensation for investment services. At least in this situation, the plain
language of § 1108(c)(2) sensibly insulates the fiduciary from liability if the
compensation paid was reasonable. We reject plaintiffs’ reading of the ambiguous
regulation because it conflicts with an unambiguous statute. Moreover, the legislative
history of § 1108 does not support the contention that the § 1108(c)(2) exemption
merely clarifies § 1108(b)(2). See, e.g., H.R. CONF. REP. NO. 93-1280 (1974),
reprinted in 1974 U.S.C.C.A.N. 5038, 5092; Lowen v. Tower Asset Mgmt., Inc., 

, 1216 & n.4 (2d Cir. 1987). Thus, summary judgment was proper because
plaintiffs failed to rebut the uncontradicted evidence that ACM’s compensation was
reasonable.

      For the foregoing reasons, we affirm the grant of summary judgment
dismissing plaintiffs’ claims against 3M. Because those claims were properly
dismissed on the merits, we need not consider plaintiffs’ contention that the district
court’s class notice omitted pertinent information and was not fair and neutral.




                                         -11-
               IV. Dismissal of the Claims Against PAC Members.

       In the second case, plaintiffs sued seven members of 3M’s Pension Assets
Committee asserting the same breaches of fiduciary duty. This action was stayed by
stipulation until the district court ruled on the issue of whether the Plan had an
adequate surplus. The district court then granted summary judgment in this action,
concluding that collateral estoppel bars plaintiffs’ failure to investigate and monitor
and prohibited transaction claims against the PAC defendants. Plaintiffs appeal,
arguing that collateral estoppel does not bar the failure to investigate and monitor
claims because the district court’s decision in favor of 3M was based upon a “special
defense” available only to fiduciary-employers. Collateral estoppel bars these claims
only if the PAC defendants are entitled to summary judgment on an issue that was
“actually and necessarily determined” in plaintiffs’ action against 3M. United States
v. Gurley, 

, 1198 (8th Cir. 1994).

       Plaintiffs assert that the district court erred in concluding that the PAC
defendants’ “liability is identical to that of the employer [3M] for the purpose of
establishing the required element of a loss to the Plan.” But we have not affirmed the
district court’s ruling that the Plan’s surplus meant there were no “losses to the plan.”
Rather, we conclude that the Plan’s surplus deprived plaintiffs of standing to sue
because they suffered no injury in fact. This conclusion applies as well to defeat
plaintiffs’ claims against the PAC defendants. Thus, the Plan surplus issue, which
was “actually and necessarily” litigated in the 3M case, bars plaintiffs’ claims in this
second case by reason of the doctrine of collateral estoppel.

      In this second appeal, plaintiffs again challenge the merits of the district court’s
decision dismissing their claims against 3M. We reject these contentions for the
reasons stated in Parts II and III of this opinion.

      The judgments of the district court are affirmed.

                                          -12-
BYE, Circuit Judge, concurring in part and dissenting in part.

       I agree the district court erred by concluding the collapse of Granite caused no
loss to the Plan. I also agree with the court's resolution of the prohibited transaction
claim. But I disagree the plaintiffs lack standing to bring breach of fiduciary duty
claims under 29 U.S.C. § 1132(a)(2).

       The court sidesteps the question whether, consistent with Article III, plan
participants or beneficiaries may bring claims under § 1132(a)(2) for injuries suffered
only by the Plan, reasoning that such a construction "would raise serious Article III
case or controversy concerns." Ante at 7. But we do not have the luxury of avoiding
that construction. Section 1132(a)(2) only permits participants or beneficiaries to
bring suit in a representative capacity to remedy an injury to the Plan itself. Mass.
Mut. Life Ins. Co. v. Russell, 

, 142 n.9, 144 (1985); see also Physicians
Healthchoice, Inc. v. Trs. of Auto. Employee Benefit Trust, 

, 55 (8th Cir.
1993). Thus, we have no choice but to address the Article III question head-on.

        I believe the plaintiffs have standing. They satisfy the case-or-controversy
requirements of Article III by standing in the shoes of a party that clearly has standing
— the Plan itself. In Vt. Agency of Natural Res. v. United States ex. rel Stevens, the
Supreme Court held a qui tam relator had Article III standing to sue under the False
Claims Act because the United States had partially assigned its claim to the relator.

, 773 (2000). But the Supreme Court also suggested a person has
standing to bring an action on behalf of a complaining party, so long as the person
has no individual interest in the case, and is "simply the statutorily designated agent
of the [complaining party]." 

The latter point proves instructive in this case
because § 1132(a)(2) authorizes plan participants and beneficiaries to bring claims
on behalf of the Plan (the complaining party), but not on their own behalf. See

. Therefore, under Stevens, I believe the plaintiffs may bring suit under
§ 1132(a)(2) because the Plan's injuries suffice to confer Article III standing.

                                          -13-
                                           13
       I do not find the court's reliance on the "zone of interests" test particularly
helpful in deciding whether the plaintiffs have standing. The Plan beneficiaries are
certainly not strangers to the Plan, ante at 7, and § 1132(a)(2) authorizes them to
represent the Plan irrespective of whether the fiduciary breach affects a defined
benefit plan or a defined contribution plan. The zone of interests test presents a
question of "statutory standing," Steel Co. v. Citizens for a Better Env't, 

,
97 (1998) (emphasis in original), with prudential standing requirements satisfied
"when the injury asserted by a plaintiff arguably falls within the zone of interests to
be protected or regulated by the statute in question." Fed. Election Comm'n v. Akins,

, 20 (1998) (internal punctuation and quotation omitted) (emphasis
added). Here, the Plan's injuries are at issue, and the plaintiffs' suit certainly satisfies
the "statutory" zone of interests tests when the statute itself authorizes plan
beneficiaries to act for the Plan in a representative capacity.

       I respectfully dissent in part.

       A true copy.

              Attest:

                 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                           -14-
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