Milofsky v. American Airlines, Inc.

KING, Chief Judge,

concurring in part and dissenting in part:

I respectfully dissent from the majority’s unprecedented holding that participants in an individual account plan lack standing under § 502(a)(2) of ERISA to recover losses to the plan under § 409 of ERISA for a fiduciary breach unless all plan participants would benefit from the litigation. ERISA governs two types of pension plans: (1) individual account plans such as the 401(k) plan at issue here, and (2) defined benefit plans.1 See 29 U.S.C. *348§ 1002. At the end of 2003, over $ 2.3 trillion in assets were held in individual account plans, representing well over half of all pension plan assets in the United States.2 The majority’s holding means that those participants in individual account plans who are unfortunate enough to be forced to litigate in the Fifth Circuit will be unable to recover monetary losses to the plans caused by fiduciary breaches when fewer than all plan participants would benefit from the litigation, thereby limiting recovery to the equitable relief available under § 502(a)(3) of ERISA. To deprive plan participants in such circumstances of a § 409 remedy for breach of fiduciary duty effectively nullifies Congress’s intent to provide a high level of protection to any and all plan participants from fiduciary abuse. The majority’s holding finds no support in the two cases it cites, and it squarely conflicts with the one other circuit court to have directly addressed this issue.

A. Russell and Matassarin Do Not Support the Majority’s Holding

The majority relies on two cases in support of its holding, Massachusetts Mutual Life Insurance Co. v. Russell, 473 U.S. 134, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985), and Matassarin v. Lynch, 174 F.3d 549 (5th Cir.1999). Both of these cases are distinguishable from the present case, and neither justifies the majority’s conclusions.

In Russell, Doris Russell, a participant in two employee benefits plans covered by ERISA, became disabled and began receiving plan benefits. Russell, 473 U.S. at 136, 105 S.Ct. 3085. On October 17, 1979, her benefits were terminated. Id On November 27, 1979, however, they were reinstated, and her retroactive benefits were paid in full. Id. Russell claimed that the interruption of benefit payments to her forced her disabled husband to cash out his retirement savings, which, in turn, allegedly aggravated her psychological and physical ailments. Id. at 137, 105 S.Ct. 3085. Accordingly, she sued the plans’ fiduciaries for extra-contractual punitive damages, as well as damages for mental and emotional distress, to be paid directly to her. Id. at 136-38, 105 S.Ct. 3085. The Supreme Court held that Russell could not bring her private right of action for compensatory and punitive relief under § 502(a)(2) because: (1) § 502(a)(2) only permits lawsuits where the damages would inure to the benefit of the plan; and (2) ERISA does not authorize the direct recovery of extra-contractual damages by a plan participant. Id. at 140-41, 144-45, 148, 105 S.Ct. 3085.

Russell is distinguishable from the present case. First, Russell requested damages payable directly to her, whereas the plaintiffs in the present case request damages payable to the plan. The majority dismisses this distinction as merely “formalistic,” noting that the damages in the present case would ultimately be distributed to the plaintiffs’ individual plan accounts. Majority Opinion, 343-344, 346-347. Those courts that have confronted similar scenarios, however, have reached the opposite conclusion, holding that fiduciary breach claims can be brought under § 502(a)(2) when the relief would ultimately benefit the individual plan participants, so long as the relief flows directly from the breaching fiduciaries to the plan, rather than from the breaching fiduciaries to the plaintiffs’ personal pocketbooks. See, e.g., Smith v. Sydnor, 184 F.3d 356, 363 (4th Cir.1999) (holding that the plaintiffs’ fiduciary breach claim under § 409 was not precluded even though they ultimately *349stood to benefit and holding that any recovery must be paid directly to the plan and not to individual participants); Rankin v. Rots, 220 F.R.D. 511, 520 (E.D.Mich.2004) (finding standing to sue because any damages for a breach of fiduciary duty would initially go to the plan, even if the damages would ultimately flow to the accounts of plan members); see also Colleen E. Medill, Stock Market Volatility and h01(k) Plans, 34 U. op Mich. J.L. REFORM, 469, 538-39 (2001) [hereinafter Stock Market Volatility] (“The better judicial interpretation ... is to view the relief as flowing to the plan in accord with section 502(a)(2), so long as the monetary award is initially allocated to each participant’s plan account rather than to his personal poeketbook.”).

Russell is also distinguishable from the present case because Doris Russell never alleged that the plan itself lost value, but instead claimed that she personally suffered emotional and physical harm due to the interruption of her benefits. See Russell, 473 U.S. at 136-37, 105 S.Ct. 3085. Conversely, the plaintiffs in the present case have alleged that their individual accounts decreased in value and that, accordingly, the value of the plan’s assets as a whole decreased. Thus, Russell did not involve a diminution in the amount of the plan’s assets, whereas the present case does involve an alleged diminution of the plan’s assets held in trust.

Finally, Russell never reached the conclusion that the majority reaches, i.e., that standing can exist under § 502(a)(2) only if all plan participants would benefit from the litigation.3 Instead, it only held that a single plan participant, seeking individual recovery for extra-contractual damages payable directly to her, could not proceed with her lawsuit under § 502(a)(2). Russell, 473 U.S. at 134, 105 S.Ct. 3085. Accordingly, the majority’s holding goes far beyond the holding of Russell.4

In Matassarin, the plaintiff Patricia Matassarin was, by virtue of a qualified domestic relations order (the “QDRO”) entered into as part of her divorce, a beneficiary in an employee stock ownership plan (the “ESOP”) offered by Great Empire Broadcasting, Inc. Matassarin, 174 F.3d at 556. Matassarin’s account, like that of approximately sixty-seven other plan participants (most were terminated employees), was a segregated account. Id. at 556-57. In May 1995, Great Empire decided to pay lump-sum distributions to the ESOP’s segregated account holders. Id. at 557. In accordance with the terms of the QDRO, Great Empire calculated the *350value of Matassarin’s account by using the stock price for Great Empire shares on the date of Matassarin’s divorce. Id. at 559, 564. Subsequently, Great Empire concluded that Matassarin was not entitled to a distribution of benefits until the date of her ex-husband’s retirement. See id. at 565. Matassarin sued the ESOP’s fiduciaries, alleging, inter alia, that they breached their fiduciary duties under ERISA, that her account balance was miscalculated, and that she was entitled to a distribution of her benefits. See id. at 557, 563-70. The district court granted summary judgment in favor of the defendants, and this court affirmed its decision in all respects. Id. at 571. In doing so, this court stated that Matassarin’s claim that plan fiduciaries had breached their duties by failing to conform the ESOP to the requirements of the tax code, thereby jeopardizing the plan’s tax qualified status, was properly brought under § 502(a)(2) because it involved the interest of the plan as a whole. Id. at 565-66. Nevertheless, the court found that this claim failed because there were no damages. Id. at 566. The court then stated that Matassarin’s remaining fiduciary-breach claims under § 502(a)(2) “concern only her individual account or, at most, those of the sixty-seven Plan participants who were offered lump-sum distributions.” Id. While the court did not explain why this was so, it affirmed the district court’s grant of summary judgment against Matassarin on her § 502(a)(2) claims because she “failed to allege any way in which the defendants’ actions caused a loss to the Plan as a whole as envisioned in § 502(a)(2).” Id. Matassarin, like Russell, is distinguishable from the present case. First, Patricia

Matassarin’s mission, specifically her claim for relief, sought only a distribution of her benefits to her, whereas the plaintiffs in the present case only seek damages that would be paid to the plan and then distributed within it to individual plan accounts. Second, Matassarin, like Russell, did not involve a diminution of the plan’s assets, while the present case does involve the alleged diminution of the plan’s assets held in trust. This follows from the fact that Matassarin never alleged that the total amount of the plan’s assets was reduced by any of the alleged fiduciary breaches, but instead claimed that several plan participants, who were also plan fiduciaries, benefitted by being able to repurchase Great Empire shares at below market value. See id. at 566-70. Third, Matassarin, unlike the plaintiffs in the present case, did not claim that the defendants mishandled plan assets causing damage to the plan as a whole, but rather alleged that various members of the plan treated her differently from other plan members and benefitted at her expense. See Kling v. Fidelity Management Trust Co., 270 F.Supp.2d 121, 126 (D.Mass.2003) (distinguishing Matassarin from a case similar to the present one on the basis that Matassarin involved a plaintiff “who had been treated differently than other participants in the same plan.”). Finally, Matassarin never stated that standing can only exist under § 502(a)(2) if every plan participant would benefit from the litigation. Accordingly, the majority’s holding goes beyond the holding of Matassarin in the same way that it goes beyond the holding of Russell.

B. All Cases That Are Directly on Point Permit Suits by a Subset of Plan Participants Under § 502(a)(2)

"While Russell and Matassarin are distinguishable from the present case, several cases, including one circuit court case, have been decided that are directly on point. In all of these cases, courts that *351have considered whether a subset of plan participants can sue for a fiduciary breach under § 502(a)(2) have held that such suits are permissible, thereby reaching the exact opposite conclusion from that reached by the majority. For instance, the facts of Kuper v. Iovenko, 66 F.3d 1447 (6th Cir.1995), are extremely similar to those of the present case. Kuper, like the present case, involved a delay in transferring assets of an individual account plan to a takeover employer. In Kuper, Quantum Chemical Corporation (“Quantum”), which maintained a benefits plan for its employees with 401(k) and ESOP components, sold one of its divisions to Henkel Corporation. As part of the sale, Quantum and Henkel agreed to a trust-to-trust transfer of the plan assets of those Quantum employees who would, work for Henkel after the sale date. Id. at 1450-51. The transfer took eighteen months, and during this period the price of the Quantum stock held in the ESOP declined nearly eighty percent. Id. According to the plaintiffs (the subset of Quantum plan participants whose plan assets were transferred), the Quan-turn fiduciaries were responsible for the delay and breached their fiduciary duties by not diversifying or liquidating the plaintiffs’ ESOP assets in order to minimize the harm caused by the delay. The defendants responded that the plaintiffs could not sue them for relief under § 409 because the plaintiffs only comprised a subset of the Quantum plan’s participants. The Sixth Circuit disagreed, stating:

We conclude that plaintiffs’ position that a subclass of Plan participants may sue for a breach of fiduciary duty is correct. Defendants’ argument that a breach must harm the entire plan to give rise to liability under [§ 409] would insulate fiduciaries who breach their duty so long as the breach does not harm all of a plan’s participants. Such a result clearly would contravene ERISA’s imposition of a fiduciary duty that has been characterized as “the highest known to law.”

Kuper, 66 F.3d at 1453.5 Similarly, in Kling, the court stated:

[The plaintiff] seeks a remedy for only a subset of the plan participants [under *352§ 502(a)(2)] .... [The plaintiff] does not sue on behalf of the Plan .... That the harm alleged did not affect every single participant does not alter this conclusion. To read such a requirement into § 409 that the harm alleged must affect every plan participant would ... “insulate fiduciaries who breach their duty so long as the breach does not harm all of a plan’s participants.”

Kling, 270 F.Supp.2d at 125-27 (citing Kuper, 66 F.3d at 1453). The Eighth Circuit likewise has noted that it would “not hesitate to construe ‘losses to the plan’ in [§ 409] broadly in order to further the remedial purposes of ERISA-” Physicians HealthChoice, Inc. v. Trs. of Auto. Employee Benefit Tr., 988 F.2d 53, 56 (8th Cir.1993). Additionally, one commentator, arguing that a subset of plan participants should be allowed to bring a fiduciary breach suit under § 502(a)(2), has written:

If the federal court rules that a fiduciary breach affecting fewer than all of the plan’s participants can only be remedied under section 502(a)(3) [and not under section 502(a)(2)], the limited traditional equitable remedies available under this section may leave this subset of participants without any relief at all.... Such a result — a fiduciary breach with no available remedy — nullifies the fiduciary responsibility provisions of ERISA. Such an interpretation sends a clear signal to the employee benefits community that employers may disregard their statutory obligations with impunity. The long-term policy consequence is likely to be a significant undermining of the effectiveness of 401(k) plans in providing retirement income security.

Stock Market Volatility at 538-39.

By permitting suits by a subset of plan participants under § 502(a)(2) for damages payable to the plan to proceed, this court would ensure that plan participants are not left without a remedy when plan fiduciaries harm the plan by breaching their duties.6 For this reason, and because no authority supports the majority’s denial of standing to the plaintiffs, I would find that the plaintiffs have standing to pursue their claims under § 502(a)(2).

C. The District Court Erred by Requiring Exhaustion of Administrative Remedies

Because I would find that the plaintiffs have standing to sue under § 502(a)(2), I must address the district court’s holding that the plaintiffs’ § 502(a)(2) claims should be dismissed for failure to exhaust administrative remedies.7 I find that the plaintiffs, asserting breaches of fiduciary duty rather than making benefits claims, were not required to exhaust administrative remedies before pursuing their § 502(a)(2) claims in federal court.

ERISA does not require the exhaustion of administrative remedies before a plan participant can file a lawsuit. Nevertheless, § 503 of ERISA does require plans to have procedures in place for the review of *353benefits claims brought by plan participants. See 29 U.S.C. § 1133. In line with § 503, this court has held that a plaintiff must exhaust her administrative remedies before bringing a benefits claim in federal court. Chailland v. Brown & Root, Inc., 45 F.3d 947, 950 n. 6 (5th Cir.1995); Denton v. First Nat’l Bank of Waco, Tex., 765 F.2d 1295, 1301-02 (5th Cir.1985). This court has never held, however, that a plan participant must exhaust her administrative remedies before bringing a fiduciary breach claim in federal court, and the rationale for requiring the exhaustion of administrative remedies regarding benefits claims does not apply to fiduciary breach claims.8

When a plan participant files a claim for benefits with a plan pursuant to § 503 of ERISA, the plan reviews her claim and decides whether or not to pay her the benefits, a process that, according to this court, minimizes the number of claims filed in federal court. See Hall v. Nat’l Gypsum Co., 105 F.3d 225, 231 (5th Cir.1997). This court has stated that the common law exhaustion requirement in this circuit “presuppose[s] that the grievance upon which the lawsuit is based arises from some action of a plan covered by ERISA, and that the plan is capable of providing the relief sought by the plaintiff.” Chailland, 45 F.3d at 950. This court has also stated that when the action arises from some entity other than the plan and the plan is incapable of providing relief, exhaustion “would make absolutely no sense and would be a hollow act of utter futility.” Id.

When a plan participant brings a fiduciary breach claim, the plan cannot pay the requested damages to the participant, as it could with a benefits claim, since § 410 of ERISA prohibits a plan from relieving a fiduciary of liability for a breach of her duties. See 29 U.S.C. § 1110. Moreover, ERISA has no procedure for the review of fiduciary breach claims. Accordingly, the district court’s holding means that the plaintiffs can only file their fiduciary breach suit after exhausting a review process that does not exist in order to recover damages that the plan cannot pay. This is precisely the type of “hollow act of utter futility” that this court described in Chail-land. Chailland, 45 F.3d at 950-51. Because an exhaustion requirement of this sort is not required by statute or by case law, and because it would serve no purpose, I would find that the district court erred when it dismissed the plaintiffs’ § 502(a)(2) claims for failure to exhaust administrative remedies.

D. Conclusion

I agree with the majority that the plaintiffs have failed to state a claim against Towers Perrin. But I would hold that the plaintiffs have standing to pursue their fiduciary breach claims under § 502(a)(2) of ERISA. I would also find that the district court erred by dismissing the plaintiffs’ § 502(a)(2) claims for failure to exhaust administrative remedies. Accord*354ingly, I would reverse the judgment of the district court dismissing the plaintiffs’ § 502(a)(2) claims against the defendants other than Towers Perrin.

. Individual account plans provide each plan participant with an individual account, and benefits under such plans are determined by the amount contributed to a participant’s account and by any applicable income, expenses, gains, and losses. See 29 U.S.C. § 1002(34). Examples of individual account plans, which are also referred to as defined contribution plans, are 401 (k) plans, 403(b) plans, employee stock ownership plans, and profit sharing plans. Defined benefit plans are generally defined as pension plans other than individual account plans. See 29 U.S.C. § 1002(35).

. Fed. Res. Bd., Flow of Funds Accounts of the United States: Flow and Outstandings Third Quarter 2004, Fed. Res. Statistical Release Z.l, at 113 (Dec. 9, 2004).

. The majority states in a footnote that there is one limited exception to its holding that standing exists under § 502(a)(2) only if all plan participants stand to benefit: when the suit "seeks to vindicate the rights of the plan as an entity when alleged fiduciary breaches targeted the plan as a whole ...." Majority Opinion, 344 n.16. The majority cites no cases in support of this exception, nor does it explain how a court should determine if an alleged fiduciary breach targeted the plan as a whole. Moreover, the plaintiffs in the present case appear to allege a breach targeted at the plan as a whole when they claim that the defendants "breached their fiduciary duties to the plaintiffs and the Super Saver Plan as a whole by failing to effectuate the timely transfer of plaintiffs' account balances from the BEX Plan as promised in numerous representations to plaintiffs ....’’ Compl. ¶ 34.

. The majority correctly notes that Russell distinguishes between relief for individuals and relief for the plan as a whole. Majority Opinion, 344-345. Russell does not, however, stand for the proposition that the "plan as a whole” is synonymous with "all participants of the plan,” and several courts have rejected this definition of the "plan as a whole.” See Kuper v. Iovenko, 66 F.3d 1447, 1453 (6th Cir.1995); Kling v. Fidelity Management Trust Co., 270 F.Supp.2d at 125-27 (D.Mass.2003); see also Stock Market Volatility at 538-39.

. The majority suggests that Kuper is internally inconsistent because it rejects the concept that the "entire plan” must be harmed but allows the litigation to proceed on the basis that "the plan as a whole” would benefit. Majority Opinion, 345-346. Kuper is not inconsistent. When rejecting the claim that the "entire plan” must be harmed for the litigation to proceed, the court was rejecting the claim that all plan participants, as opposed to a subset of plan participants, must stand to benefit from the litigation in order for it, to proceed. See Kuper, 66 F.3d at 1453-54. Conversely, when the court later stated that allowing the litigation to proceed would "benefit the Plan as a whole[,]” it did not (and could not) mean that every individual plan account benefitted, but instead likely meant that the total plan assets would benefit by allowing the litigation to proceed. The majority also states that Kuper's rejection of the "entire plan” requirement may be dictum because of its holding that the plan met the "plan as a whole” test. Majority Opinion, 345-346. Kuper's rejection of the "entire plan” requirement was not dictum because it was essential to the court’s decision (i.e., had the court accepted the defendants' argument that the litigation could only proceed if all plan participants stood to benefit, it could not have ruled as it did). See Gochicoa v. Johnson, 238 F.3d 278, 287 n. 11 (5th Cir.2000) ("A statement should be considered dictum when it could have been deleted without seriously impairing the analytical foundations of the holding — [and], being peripheral, may not have received the full and careful consideration of the court that uttered it.” (internal quotation marks omitted)); see also McLellan v. Mississippi Power & Light Co., 545 F.2d 919, 925 n. 21 (5th Cir.1977). Accordingly, the Sixth Circuit clearly concluded in Kuper that a subset of plan participants could sue for a breach of fiduciaiy duty under § 502(a)(2) — a conclusion that the majority's holding would prohibit. See Kuper, 66 F.3d at 1453.

. The majority contends that denying standing to the plaintiffs would not foreclose claims by them against the plan’s fiduciaries for violating their duties, since standing could still exist under § 502(a)(3). Majority Opinion, 346-347. However, a plan participant can only sue for equitable relief under § 502(a)(3), whereas a plan participant can sue for monetary relief under § 502(a)(2), See 29 U.S.C. 1109(a); Mertens v. Hewitt Assocs., 508 U.S. 248, 255, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993). Accordingly, as the majority notes, § 502(a)(3) would deny the plaintiffs the particular remedy they desire. Majority Opinion, 346-347.

. The majority does not address this issue because it disposes of the plaintiffs’ § 502(a)(2) claims for a lack of standing.

. In its opinion, the district court cited Simmons v. Willcox, 911 F.2d 1077, 1081 (5th Cir.1990), for the proposition that this circuit has held that exhaustion of administrative remedies is required for fiduciary breach claims. In fact, -in Simmons, this court held that the plaintiff’s "fiduciary breach" claim was actually a disguised benefits claim, and it therefore concluded that the plaintiff could not avoid § 503’s exhaustion requirement by mislabeling it as a fiduciary breach claim. In the present case, the plaintiffs have not requested the distribution of any benefits, but have only raised a pure fiduciary breach claim for damages to the plan. Therefore, because this case does not involve a disguised benefits claim, but instead involves a legitimate fiduciary breach claim, Simmons is inapplicable.