Beck v. PACE International Union

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JEFFREY H. BECK, Liquidating 
Trustee of the Estates of Crown
Vantage, Inc. and Crown Paper
Company,
Appellant,
v. No. 03-15303
PACE INTERNATIONAL UNION, on  D.C. No.
behalf of member and former CV-02-01407-MHP
member participants in pension
plans sponsored by the Debtors;
EDWARD MILLER; JEFFREY D.
MACEK, on behalf of themselves
and others similarly situated,
Defendants-Appellees.


PACE INTERNATIONAL UNION, AFL- 
CIO, CHEMICAL & ENERGY
WORKERS INTERNATIONAL UNION, on
behalf of members and former
member participants in pension
No. 03-15331
plans,
Defendant-Appellant,
 D.C. No.
CV-02-01407-MHP
v.
OPINION
JEFFREY H. BECK, Liquidating
Trustee of the Estates of Crown
Vantage, Inc. and Crown Paper
Company,
Appellee.


14631
14632 BECK v. PACE INT’L UNION
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, District Judge, Presiding

Argued and Submitted
November 4, 2004—San Francisco, California

Filed October 24, 2005

Before: Stephen Reinhardt, Richard A. Paez, and
Marsha S. Berzon, Circuit Judges.

Opinion by Judge Paez
 BECK v. PACE INT’L UNION 14635

COUNSEL

Stephen A. Kroft (argued), Rodger M. Landau, Los Angeles,
California, for the appellant/cross-appellee.

John Plotz (argued), Christian L. Raisner, Oakland, Califor-
nia, for the appellees/cross-appellant.

OPINION

PAEZ, Circuit Judge:

In the course of Chapter 11 liquidation proceedings, debt-
ors Crown Vantage, Inc. and Crown Paper Co. (Crown)
decided to terminate Crown’s pension plans through the pur-
chase of an annuity, rather than by merging the plans into a
multiemployer plan sponsored by PACE International Union
(PACE). Plan participants and PACE filed an adversary
action against Crown in bankruptcy court, alleging that
Crown’s directors breached their fiduciary duties under the
Employee Retirement Income Security Act of 1974 (ERISA),
as amended, 29 U.S.C. §§ 1001-1461, by failing to consider
adequately the proposed merger. The bankruptcy court agreed
and issued a preliminary injunction ordering that Crown
maintain the residual assets — approximately $5 million —
in the plan in an interest-bearing account pending a final deci-
sion on the allocation of the assets. Pursuant to the bankruptcy
court’s order, the parties submitted a joint plan for the distri-
bution of the residual assets for the benefit of the plan partici-
pants and stipulated that the court’s ruling on the preliminary
injunction could be treated as a final ruling on the merits
14636 BECK v. PACE INT’L UNION
under Federal Rule of Civil Procedure 65(a)(2). The bank-
ruptcy court approved the plan.

As in the bankruptcy and district courts, Crown1 argues that
it did not breach its fiduciary duties to plan participants and
beneficiaries because merger into a multiemployer plan is an
impermissible means of terminating a pension plan under
ERISA, its implementing regulations, and the terms of the
pension plan. PACE cross-appeals the district court’s determi-
nation that it lacked standing to pursue an appeal.

We have jurisdiction pursuant to 28 U.S.C. § 158(d). We
hold that under ERISA and its regulations, merger into a mul-
tiemployer plan is not a prohibited means of terminating a
pension plan, and that the bankruptcy court did not err in con-
cluding that Crown breached its fiduciary duties by failing to
consider thoroughly PACE’s proposal and discharge its duties
“solely in the interest of the participants and beneficiaries.” 29
U.S.C. § 1104(a)(1). With respect to PACE’s cross-appeal,
we vacate the district court’s judgment on that issue with
directions to remand to the bankruptcy court for further proceed-
ings.2

I. Facts and Procedural History

Crown Vantage, Inc. was the parent company of Crown
Paper Co., which operated seven paper mills in the Eastern
United States and employed 2600 workers. The employees
were covered by collective bargaining agreements with
PACE. Members of Crown’s board of directors were also the
trustees for its eighteen pension plans.
1
Appellant Jeffrey H. Beck is the liquidating trustee of the Crown
estates. Because the actions of Crown’s board of directors, the trustees of
the pension plans, are the focus of this action, however, we refer to Crown
as the appellant.
2
In a separate memorandum disposition filed today, we address the rem-
edy imposed by the bankruptcy court.
 BECK v. PACE INT’L UNION 14637
In March of 2000, Crown filed for Chapter 11 bankruptcy
and began liquidating its assets. See generally In re Crown
Vantage, Inc., 421 F.3d 963, 967-68 (9th Cir. 2005). The Pen-
sion Benefit Guarantee Corporation (PBGC) filed proofs of
claims totaling millions of dollars for the liability it would
have been forced to assume if it had taken over Crown’s pen-
sion plans. The bankruptcy court viewed PBGC’s proofs of
claims as a “stumbling block” to Chapter 11 plan confirma-
tion. In July of 2001, Crown’s board began to obtain quotes
for the purchase of an annuity as a means of effecting a “stan-
dard termination” of the plans under Section 4041(b) of
ERISA, 29 U.S.C. § 1341(b).

During the summer of 2001, PACE proposed a merger of
the seventeen pension plans that covered Crown’s hourly
employees into the PACE Industrial Union Management Pen-
sion Fund (PIUMPF), a Taft-Hartley Act multiemployer pen-
sion fund founded in 1963 for PACE union members. PACE
preferred this option because PIUMPF in prior years had paid
a thirteenth monthly check during the year, and thus merger
offered the possibility that retirees might receive more than
the minimum benefits. Additionally, PACE preferred the pro-
posed merger because PIUMPF provided an established dis-
pute resolution program for plan participants.

Crown’s counsel met with a PACE representative in
August of 2001 to discuss the merger, and expressed the view
that Crown wanted to be assured of the financial stability of
PIUMPF and the legality of the merger. The parties agreed
that their attorneys and actuaries would further investigate the
PIUMPF merger. On September 26, 2001, PIUMPF’s actuary
reported that the merger was feasible, and Crown’s counsel
requested more information from PIUMPF’s counsel. That
same day, Crown’s board of directors met and reviewed bids
for annuities, and learned that a “reversion” to the company
of remaining assets in the plan would be possible if it termi-
nated twelve of the pension plans through the purchase of an
14638 BECK v. PACE INT’L UNION
annuity.3 The board also learned about the proposed PIUMPF
merger, and agreed to compare it to the annuity options once
it received final bids.

On October 1, 2001, PIUMPF’s counsel sent Crown’s
counsel a draft merger agreement. On October 4, Crown’s
counsel stated at a hearing in the bankruptcy court that it was
looking into the possibility of a merger with PIUMPF. At this
hearing, counsel represented that “before an action is taken as
to these pension plans,” the court would be notified. On Octo-
ber 8, PIUMPF’s counsel sent Crown more information about
the financial stability and legality of the merger.

Crown’s board met on October 9, 2001, to review the final
annuity bids with the understanding that they would expire
within twenty-four hours. The bankruptcy court determined
that the board did not seek a waiver of this deadline. At the
time of the meeting, the board faced a forty-five day timetable
for dissolving Crown, and Crown had $10,000 or less in the
bank. The board did not consider the PIUMPF merger at this
meeting, and it did not ask its actuary to analyze the proposed
merger. Minutes of the October 9 meeting reflect that PBGC
had agreed to release Crown under an annuitization of the
pension plans, but not in a merger. The bankruptcy court
found that the board did not pursue a release from PBGC for
a merger with PIUMPF. The board decided to purchase an
annuity as a means of terminating the twelve merged pension
plans (the Merged Plan) through Hartford Life Insurance
Company, on the basis of Hartford’s financial stability and a
projected maximum reversion of nearly $5 million to Crown.
Crown deposited over $84 million with Hartford the next day.
3
The twelve plans were identified because they were “overfunded” and
would therefore yield a surplus after the annuity had been purchased.
Crown merged these twelve plans into one “Merged Plan” in order to pur-
chase the annuity. The remaining five pension plans covering hourly
workers were to remain the responsibility of Georgia Pacific Company,
the successor to a prior plan sponsor.
 BECK v. PACE INT’L UNION 14639
Appellees Edward Miller and Jeffrey Macek, on behalf of
themselves and other similarly situated plan participants, and
PACE, on behalf of its members and former member plan
participants, filed suit in bankruptcy court. The plaintiffs
alleged that Crown breached its fiduciary duties under ERISA
by failing to “perform a diligent investigation into the
PIUMPF [merger] proposal,” and by failing to discharge its
duties “solely in the interest of the participants and beneficia-
ries.” After rendering oral findings of facts and conclusions of
law, the bankruptcy court granted a preliminary injunction,
ordering all cash assets remaining in the pension plan to be
placed in an interest-bearing account, and that no reversion of
assets to Crown could occur, pending the court’s final deci-
sion on the allocation of the assets. The bankruptcy court also
ordered the parties to report on the feasibility of distributing
the reversion “for the benefit of the pension plan partici-
pants.” Although the plaintiffs asked the bankruptcy court to
void the annuity transaction with Hartford, the court declined
to do so and allowed Crown to complete the termination pro-
cess.

The parties stipulated to having the bankruptcy court’s
findings of fact and conclusions of law deemed a final ruling
on the merits, and submitted a joint report setting forth a pro-
cedure for distribution of the residual assets for the benefit of
the plan participants. The bankruptcy court entered an order
approving the distribution of the assets to the plan partici-
pants. As noted, the court left the preliminary injunction in
effect pending implementation of the distribution. Although
no final judgment was entered, in light of the parties’ stipula-
tion we treat the district’s order granting the preliminary
injunction as the final judgment.

On appeal to the district court, Crown argued that neither
appellees Miller and Macek nor PACE had standing and that
it was neither subject to fiduciary obligations in terminating
the plan, nor did it breach such duties. The district court held
that appellees Miller and Macek had standing as plan partici-
14640 BECK v. PACE INT’L UNION
pants to enforce Crown’s fiduciary obligations, but dismissed
PACE for lack of standing, because it was not an enumerated
party under ERISA.4 The district court affirmed the bank-
ruptcy court’s determination that Crown breached its fidu-
ciary duties as well as the preliminary injunction granted by
the bankruptcy court.

II. Breach of Fiduciary Duties under ERISA

The parties do not dispute that the decision to terminate a
pension plan is a business decision not subject to ERISA’s
fiduciary obligations, see Cunha v. Ward Foods, Inc., 804
F.2d 1418, 1432-33 (9th Cir. 1986), and Amalgamated Cloth-
ing and Textile Workers Union, AFL-CIO v. Murdock, 861
F.2d 1406, 1419 (9th Cir. 1988), whereas the implementation
of a decision to terminate is discretionary in nature and sub-
ject to ERISA’s fiduciary obligations. See Waller v. Blue
Cross of Cal., 32 F.3d 1337, 1342-44 (9th Cir. 1994). Crown
does not challenge the bankruptcy court’s finding that it failed
fully to investigate the PIUMPF merger option. Instead,
Crown argues that both ERISA and the terms of the pension
plan prohibit merger into a multiemployer plan as a means of
termination; thus its decision to terminate, rather than to
merge, was discretionary and not subject to fiduciary obliga-
tions. The merits of Miller and Macek’s claim that Crown
breached its fiduciary duties therefore turn on whether merger
into a multiemployer plan is a permissible means of imple-
menting a decision to terminate.

A. Standard of Review

We review the bankruptcy court’s decision directly and
therefore review de novo the district court’s decision on
appeal from the bankruptcy court. Cellular 101, Inc. v. Chan-
4
Crown now concedes that appellees Miller and Macek have standing.
We address the issue of cross-appellant PACE’s standing in Section III of
this opinion.
 BECK v. PACE INT’L UNION 14641
nel Communications, Inc. (In re Cellular 101, Inc.), 377 F.3d
1092, 1095 (9th Cir. 2004); Neilson v. United States (In re
Olshan), 356 F.3d 1078, 1083 (9th Cir. 2004). We apply the
same standard of review applied by the district court, and
review the bankruptcy court’s legal conclusions de novo, and
its findings of fact for clear error. Olshan, 356 F.3d at 1083.

B. Permissibility of Merger under the Terms of the
Pension Plan

[1] Before the district court and in this appeal, Crown has
argued that the terms of its pension plan do not permit a
merger as a means of termination. Crown failed to raise this
argument before the bankruptcy court. As a general rule, we
do not consider issues argued for the first time on appeal. Citi-
bank (S.D.), W.A. v. Eashai (In re Eashai), 87 F.3d 1082,
1085 n.2 (9th Cir. 1996). This rule applies to appeals from
bankruptcy proceedings. In re Southland Supply, Inc., 657
F.2d 1076, 1079 (9th Cir. 1981). We conclude that none of
our recognized exceptions to this rule applies to this case. Cf.
Cold Mountain v. Garber, 375 F.3d 884, 891 (9th Cir. 2004);
Eashai, 87 F.3d at 1085 n.2. We therefore deem this argument
waived.

C. Permissibility of Merger as a Means of
Termination under ERISA

The bankruptcy court did not explicitly determine whether
ERISA permits merger into a multiemployer plan as a means
of terminating a single employer plan. Instead, the court
assumed that this was permissible, finding “[t]he decision
whether to annuitize the plans or merge them into PIUMPF
was . . . a discretionary act” subject to fiduciary duties.
Because the bankruptcy court’s interpretation of ERISA is a
question of law, our review is de novo. Mathews v. Chevron
Corp., 362 F.3d 1172, 1178 (9th Cir. 2004); Olshan, 356 F.3d
at 1083.
14642 BECK v. PACE INT’L UNION
[2] As Crown argues, ERISA § 4041(a)(1), 29 U.S.C.
§ 1341(a)(1), provides that the exclusive means of terminating
a single-employer pension plan are: 1) institution of termina-
tion proceedings by the corporation under 29 U.S.C. § 1342;
2) standard termination under § 1341(b); and 3) distress ter-
mination under § 1341(c). The termination effected in this
case was a standard termination. A standard termination
requires that, “when the final distribution of assets occurs, the
plan is sufficient for benefit liabilities.” 29 U.S.C.
§ 1341(b)(1)(D). So long as the PBGC does not issue a notice
of noncompliance, the plan administrator must distribute the
assets. Id. § 1341(b)(2)(D); 29 C.F.R. §§ 4041.21(a),
4041.28(a), (c).

[3] ERISA § 4041(b)(3), 29 U.S.C. § 1341(b)(3), sets forth
the method for “final distribution of assets” for standard ter-
minations. The assets are to be allocated according to the pri-
orities listed in 29 U.S.C. § 1344. Next, the statutory section
at issue in this case states:

In distributing such assets, the plan administrator
shall—

(i) purchase irrevocable commitments from an
insurer to provide all benefit liabilities under the
plan, or

(ii) in accordance with the provisions of the plan
and any applicable regulations, otherwise fully pro-
vide all benefit liabilities under the plan.

§ 1341(b)(3)(A) (emphasis added). Thus, ERISA explicitly
provides for alternative means of terminating a pension plan.
The implementing regulations are consistent:

The plan administrator must, in accordance with all
applicable requirements under the Code and ERISA,
distribute plan assets in satisfaction of all plan bene-
 BECK v. PACE INT’L UNION 14643
fits by purchase of an irrevocable commitment from
an insurer or in another permitted form.

29 C.F.R. § 4041.28(c)(1) (emphasis added). Thus, the pur-
chase of an irrevocable commitment from an insurer is not a
requirement; other methods of termination are permitted as
long as they are sufficient to cover plan liabilities.

[4] Crown emphasizes that ERISA § 4041, 29 U.S.C.
§ 1341, and ERISA § 4232, 29 U.S.C. § 1412, which controls
transfers between multiemployer and single-employer plans,
are two “wholly separate sections of the statute,” neither of
which expressly permits mergers as a means of termination.
Yet, as the district court persuasively reasoned, both 29
U.S.C. §§ 1341 and 1412 are included within ERISA Title IV,
which covers the topic of “Plan Termination Insurance.” Sec-
tion 1412 falls under Subtitle E of Title IV, “Special Provi-
sions for Multiemployer Plans.” It would have been logical
for Congress to place § 1412 within Title IV of ERISA
because, as appellees Miller and Macek argue, one practical
effect of a merger or complete transfer is that at least one pen-
sion plan will cease to exist.

[5] Crown cites Brotherhood of Railroad Trainmen v. Bal-
timore & Ohio Railroad Co., 331 U.S. 519, 528-29 (1947),
and Scarborough v. Office of Personnel Management, 723
F.2d 801, 811 (11th Cir. 1984), for the proposition that a stat-
ute’s titles and headings cannot “limit the plain meaning of
the text.” Those cases, however, dealt with unambiguous stat-
utory language. By contrast, where the statutory language is
ambiguous, titles and headings may be used to clarify the
meaning of statutory text. See Natural Res. Def. Council v.
EPA, 915 F.2d 1314, 1321 (9th Cir. 1990). Here, the statutory
language is unclear: whether Congress intended to permit
mergers into multiemployer plans as a means of termination
under 29 U.S.C. § 1341(b)(3)(A) is uncertain. Consideration
of the placement of titles and headings clarifies the statutory
14644 BECK v. PACE INT’L UNION
text and supports the conclusion that mergers are a permissi-
ble means of termination.

Crown also argues that 29 U.S.C. § 1412(f)(3), which
involves transfers between or mergers of multiemployer and
single-employer plans, supports its argument that terminations
are distinct from transfers between single and multiemployer
plans. Section 1412(f)(3) states:

No transfer to which this section applies, in connec-
tion with a termination described in section
1341a(a)(2) of this title, shall be effective unless the
transfer meets such requirements as may be estab-
lished by the corporation to prevent an increase in
the risk of loss to the corporation.

Section 1341a refers to terminations of multiemployer plans.
The text of § 1412(f)(3) implies that a transfer between a sin-
gle and multiemployer plan can be “in connection with a ter-
mination” (albeit the termination of a multiemployer plan).
Thus, § 1412(f)(3) fails to support Crown’s argument that ter-
mination and merger into a multiemployer plan are mutually-
exclusive actions.

Finally, Crown argues that a merger into a multiemployer
plan does not constitute a “distribution” under 29 U.S.C.
§ 1341(b)(3). The terms “distribution” or “distribute” are not
expressly defined in either ERISA or its implementing regula-
tions. See 29 U.S.C. §§ 1002, 1301; 29 C.F.R. § 4041.2. Dic-
tionary definitions of “distribute” include: “to divide among
several or many: deal out; apportion esp. to members of a
group or over a period of time: allot”; “dispense, administer”;
and “to give out or deliver esp. to the members of a group.”
WEBSTER’S THIRD NEW INT’L DICTIONARY (1993). These defini-
tions do not support the exclusion of mergers into multiem-
ployer plans as a means of termination. As appellees Miller
and Macek argue, the purchase of irrevocable commitments
from an insurer to provide all benefit liabilities under the plan,
 BECK v. PACE INT’L UNION 14645
pursuant to 29 U.S.C. § 1341(b)(3), such as the annuity to be
provided by Hartford Life in this case, does not appear to sat-
isfy the distribution requirement any more than would a
merger into a multiemployer plan. Both scenarios would
involve a series of payments to plan beneficiaries over time,
rather than a lump-sum payment at the time of termination.

[5] In sum, the text of ERISA § 4041 and its implementing
regulations is ambiguous at best and neither explicitly nor
implicitly prohibits merger into a multiemployer plan as a
means of termination of a pension plan. As the district court
determined, § 1341(b)(3) provides for alternative means of
termination, so long as they are consistent with the plan provi-
sions, applicable regulations and “otherwise fully provide all
benefit liabilities under the plan.” We hold that neither the
statute nor its implementing regulations preclude mergers into
multiemployer plans as a method of providing such benefit
liabilities. We therefore affirm the district court’s ruling on
this issue.

D. Merits of Breach of Fiduciary Duty Claim

Applying the test for a preliminary injunction, the bank-
ruptcy court found serious questions as to whether Crown
breached its fiduciary duties to plan participants by failing
fully to investigate the proposed PIUMPF merger. As previ-
ously noted, because the parties stipulated to having the bank-
ruptcy court’s findings of fact and conclusions of law deemed
a final ruling on the merits, we review the merits determina-
tion de novo. Stratosphere Litig. L.L.C. v. Grand Casinos,
Inc., 298 F.3d 1137, 1142 (9th Cir. 2002). Crown has never
argued that it fairly considered the PIUMPF proposal, instead
staking its defense on the argument that merger into a mul-
tiemployer plan is an impermissible means of termination.

[6] ERISA requires fiduciaries to discharge their duties
“solely in the interest of the participants and beneficiaries”
and for the exclusive purposes of “(i) providing benefits to
14646 BECK v. PACE INT’L UNION
participants and their beneficiaries; and (ii) defraying reason-
able expenses of administering the plan.” 29 U.S.C.
§ 1104(a)(1)(A). ERISA’s “exclusive benefit” rule provides
that, except in certain circumstances,

the assets of a plan shall never inure to the benefit
of any employer and shall be held for the exclusive
purposes of providing benefits to participants in the
plan and their beneficiaries and defraying reasonable
expenses of administering the plan.

§ 1103(c)(1); Resolution Trust Corp. v. Fin. Insts. Ret. Fund,
71 F.3d 1553, 1556-58 (10th Cir. 1995). Corporate officers
and directors often “serve in a dual fiduciary capacity,” with
simultaneous duties running both to pensioners, in their
capacity as plan trustees, and to shareholders, as directors of
the corporation. See Friend v. Sanwa Bank Cal., 35 F.3d 466,
468-69 (9th Cir. 1994); Donovan v. Bierwith, 680 F.2d 263,
271 (2d Cir. 1982). Conflicts of interest created by these dual
roles can lead to violations of ERISA’s loyalty requirements.
Pilkington PLC v. Perelman, 72 F.3d 1396, 1401-02 (9th Cir.
1995). We have stressed that where such conflicts arise, “de-
cisions must be made with an eye single to the interests of the
participants and beneficiaries.” Id. at 1402 (quoting Donovan,
680 F.2d at 271). Furthermore, “fiduciaries may need to step
aside, at least temporarily, from the management of assets
where they face potentially conflicting interests.” Id. at 1402
(quoting Leigh v. Engle, 727 F.2d 113, 125 (7th Cir. 1984));
see also Waller, 32 F.3d at 1341-44 (holding that plaintiff
stated an ERISA claim for breach of fiduciary duty where it
alleged fiduciary imprudently based the choice of an annuity
provider on the size of a potential reversion).

The bankruptcy court found “that there are serious ques-
tions whether the conduct of Crown’s officers and Board of
Directors was directed more at fulfilling their fiduciary obli-
gations to the creditors of an insolvent corporation than at ful-
 BECK v. PACE INT’L UNION 14647
filling their fiduciary obligations to the corporation’s
pensioners.” The court applied the standard set forth in Leigh:

Where it might be possible to question the fidu-
ciaries’ loyalty, they are obliged at a minimum to
engage in an intensive and scrupulous independent
investigation of their options to insure that they act
in the best interests of the plan beneficiaries.

727 F.2d at 125-26. The bankruptcy court determined that,
whether motivated by the possibility of a reversion, Crown’s
“desperate financial circumstances,” or the certainty of
obtaining a release from the PBGC under an annuity option,
Crown failed to make the requisite “intensive and scrupulous”
investigation of investment options, including the proposed
PIUMPF merger.

[7] Crown’s fiduciary obligation was to assure the payment
of the promised defined benefits with as little risk of nonpay-
ment as possible, not to use the fund’s total assets to the bene-
ficiaries’ optimum benefit. See generally Hughes Aircraft Co.
v. Jacobson, 525 U.S. 432, 440 (1999) (“Since a decline in the
value of a plan’s assets does not alter accrued benefits, mem-
bers similarly have no entitlement to share in a plan’s surplus
. . . .”); cf. Collins v. Pension & Ins. Comm. of the S. Cal.
Rock Prods. & Ready Mixed Concrete Ass’ns, 144 F.3d 1279,
1282 (9th Cir. 1998) (“ERISA does not create an exclusive
duty to maximize pecuniary benefits.”). The bankruptcy court
alluded to this limited obligation in stating that “[h]ad there
been no prospect of a merger with another plan, then the
Board’s course of conduct almost surely would have passed
muster.” As the ERISA statute provides for reversions, see 29
U.S.C. § 1344, it can be permissible, depending on the gov-
erning plan’s terms, for trustees to choose a termination
option that provides for a reversion as long as the process
employed is for the exclusive purpose of acting in the benefi-
ciaries’ interest. In making a decision among possible termi-
nation schemes, however, the reversion should not be taken
14648 BECK v. PACE INT’L UNION
into account, even to a minor extent, pursuant to the “eye sin-
gle” principle of fiduciary responsibility to the beneficiaries.
See Pilkington, 72 F.3d at 1401-02.

In Pilkington, plaintiffs alleged that pension trustees
breached their fiduciary duty by choosing an annuity provider
on the basis of the size of the potential reversion. Id. at 1401-
02. Defendants chose the lowest bidder, which resulted in the
largest reversion, and the annuity provider defaulted shortly
thereafter. Id. at 1397-98. In response to the defendants’ argu-
ment that they chose an AAA or A+ rated annuity, we stated
that “a mere ratings scan” does not satisfy a pension trustee’s
fiduciary duties. Id. at 1401. On the basis of “strong evidence
that reversion maximization figured prominently” in the
choice and that the trustees’ “motivation may have deviated
from that mandated by ERISA,” we reversed a grant of sum-
mary judgment in favor of defendant trustees. Id.

As in Pilkington, the possibility of a reversion appears to
have featured in the minds of the Crown trustees. The bank-
ruptcy court, relying on Pilkington, stated that “the prospect
of a reversion” was one of several possible factors that, indi-
vidually or combined, “strongly suggests that the officers and
directors of Crown did not make the ‘intensive and scrupulous
investigation of the plan’s investment options’ that the cir-
cumstances required particularly given their dual fiduciary
capacity.” The court concluded that “once the merger option
was raised, the Board had a fiduciary duty to fully explore it
and determine which option was truly in the beneficiaries’
best interests. The fact that the company was out of cash and
had a timetable for plan confirmation should have played no
part in the determination.

[8] We agree with the bankruptcy court that there is evi-
dence that the fiduciaries’ “motivation may have deviated”
from the “eye single” focus on the interests of plan beneficia-
ries, as mandated by ERISA. See id. at 1401-02 (quoting Don-
ovan, 680 F.2d at 271). The risk to fund assets resulted from
 BECK v. PACE INT’L UNION 14649
Crown’s focus on an improper set of interests. See Leigh, 727
F.2d at 125 (stating that “[u]nder the section 404(a) duty of
loyalty, the central question is whether the fiduciaries acted
solely in the interests of the beneficiaries and for the exclusive
purpose of providing them with benefits.”). The bankruptcy
court found evidence of divided loyalties and that Crown
failed adequately to discharge its duties through thorough
investigation. We conclude that the bankruptcy court did not
err in determining that Crown breached its fiduciary duties by
failing exclusively to prioritize the interests of plan partici-
pants and beneficiaries and failing to make the “intensive and
scrupulous investigation of the plan’s investment options.”
See Leigh, 727 F.2d at 125-26. We therefore affirm the dis-
trict court’s determination on this issue.

III. Standing

The district court held that PACE lacked standing on the
ground that ERISA § 502(a), 29 U.S.C. § 1132(a), confers
exclusive enforcement authority on plan participants, benefi-
ciaries, fiduciaries, employers, states, and the Secretary of
Labor. It further held that PACE lacked standing under
ERISA § 4070, 29 U.S.C. § 1370(a), which confers standing
on unions to enforce the termination procedures of ERISA,
because its complaint did not allege that Crown violated the
termination provisions of ERISA § 4041, 29 U.S.C. § 1341.5
We review the district court’s determination of standing de
novo. Porter v. Jones, 319 F.3d 483, 489 (9th Cir. 2003).
5
Although Crown did not raise the issue of PACE’s standing before the
bankruptcy court, the district court addressed the issue on jurisdictional
grounds, citing Pershing Park Villas Homeowners Association v. United
Pacific Insurance Company, 219 F.3d 895, 899 (9th Cir. 2000) (noting
that “[b]ecause issues of constitutional standing are jurisdictional, they
must be addressed whenever raised,” whereas “objections to nonconstitu-
tional standing not properly raised before the district court” may be
waived), and Curtis v. Nevada Bonding Corporation, 53 F.3d 1023, 1027
(9th Cir. 1995) (reiterating that “a plaintiff’s standing under [ ]
§ 1132(a)(1) is a prerequisite to ERISA jurisdiction.”).
14650 BECK v. PACE INT’L UNION
On cross-appeal, PACE argues that, in light of liberal
notice pleading rules, the district court should have construed
its complaint broadly to include allegations that Crown vio-
lated the termination provisions of ERISA § 4041. Alterna-
tively, PACE requests leave to amend its complaint to include
such allegations.

Crown does not contest the district court’s determination
that plaintiffs Miller and Macek have standing. Crown con-
tends that we need not address whether PACE has standing
because the appeal will proceed regardless of whether PACE
is a party. See Sys. Council EM-3 v. AT&T Corp., 159 F.3d
1376, 1378-79 (D.C. Cir. 1998) (declining to decide whether
union had standing to bring ERISA claims in light of plan
beneficiaries’ standing) (citing Craig v. Boren, 429 U.S. 190,
192-93 (1976)). As an entity that collectively bargains for
pension rights, however, PACE has institutional resources and
experience to enforce ERISA, and it may be in a better posi-
tion to protect the rights of all of its members. We conclude
that, despite the fact that this litigation may proceed on the
basis of Miller and Macek’s standing, the presence or absence
of PACE as a party remains a relevant issue.

[9] Pursuant to ERISA § 4070, 29 U.S.C. § 1370, unions
have standing to seek equitable relief for violations of ERISA
§§ 4041, 4042, 4062-64, and 4069, 29 U.S.C. §§ 1341, 1342,
1362-64, 1369, which relate to termination procedures. The
district court held that because PACE’s complaint failed to
state claims under ERISA §§ 4041, 4042, 4062-64, or 4069
for improper termination by Crown, and because the issue in
this action is whether Crown breached its fiduciary duties,
PACE did not have standing under § 4070.

[10] PACE’s first amended complaint did not explicitly
allege violations of the termination procedures. Instead, it
focused on Crown’s breaches of fiduciary duty in failing ade-
quately to consider the PIUMPF merger. PACE argues that
there is a fiduciary duty overlay that permeates ERISA, and
 BECK v. PACE INT’L UNION 14651
thus § 4070 provides a union with standing to enforce a
breach of such duties in the context of plan termination.
PACE requests that we grant it leave to amend its complaint
to allege violations of ERISA’s termination procedures, thus
bringing it within the grant of standing for unions in § 4070.
Because both parties should have the opportunity to address
this issue, we remand to the bankruptcy court so that it may
consider in the first instance PACE’s request to file an
amended complaint and its new theory of standing. See
United Union of Roofers, Waterproofers and Allied Trades
No. 40 v. Ins. Corp. of Am., 919 F.2d 1398, 1402 (9th Cir.
1990) (remanding for determination of union’s new theory of
standing).

IV. Conclusion

[11] We hold that merger into a multiemployer plan is a
permissible means of terminating a pension plan under
ERISA. We further hold that the bankruptcy court did not err
in concluding that the Crown board breached its fiduciary
duties by failing adequately to consider the PIUMPF merger
and in order to prioritize the interests of plan participants and
beneficiaries. We therefore affirm the district court’s ruling
on these issues. Finally, we vacate the district court’s determi-
nation that PACE lacks standing, grant PACE’s request for
leave to amend its complaint to better articulate the basis for
its standing, and remand the standing issue to the district court
with instructions to remand to the bankruptcy court.6
6
The appellees/cross-appellant have filed two requests for judicial
notice in this court. In the first request, filed on February 16, 2004,
appellees/cross-appellant ask that we take judicial notice of Crown’s
motion for order authorizing the Liquidating Trustee to pay an adjustment
premium to the Hartford Life Insurance Company, the bankruptcy court’s
order granting this motion, and appellees/cross-appellant’s notice of
appeal. In the second request, filed on June 7, 2004, appellees/cross-
appellant request that we take judicial notice of PACE’s First Amended
Petition to Compel Arbitration and Complaint for Breach of the Terms of
Collective Bargaining Agreements, filed in the bankruptcy court on Octo-
14652 BECK v. PACE INT’L UNION
AFFIRMED in part; VACATED in part; and
REMANDED.

ber 2, 2002, and the transcript of a January 22, 2003 petition to compel
arbitration. Appellees/cross-appellant have not adequately explained why
these documents are relevant or on what grounds this court should take
judicial notice of them. We therefore deny these requests.