Steve Harris v. Amgen, Inc. ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVE HARRIS; DENNIS F. RAMOS, 
On Behalf of Themselves and All
Others Similarly Situated,
Plaintiffs-Appellants,
v.
AMGEN, INC.; FRANK J. BIONDI, JR.; No. 08-55389
JERRY D. CHOATE; FRANK C. D.C. No.
HERRINGER; GILBERT S. OMENN;  2:07-cv-05442-PSG-
DAVID BALTIMORE; JUDITH C. PLA
PELHAM; KEVIN W. SHARER;
OPINION
FREDERICK W. GLUCK; LEONARD D.
SCHAEFFER; ROBERT A. BRADWAY;
RETIREMENT BENEFITS
COMMITTEE OF THE BOARD OF
DIRECTORS OF AMGEN,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted
May 8, 2009—Pasadena, California
Filed July 14, 2009
Before: Betty B. Fletcher, Raymond C. Fisher, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Gould
8819
8822 HARRIS v. AMGEN, INC.
COUNSEL
Francis M. Gregorek, Betsy C. Manifold, Rachele R. Rickert,
and Mark C. Rifkin (argued), Wolf Haldenstein Adler Free-
man & Herz LLP, San Diego, California, and Thomas J.
McKenna, Gainey & McKenna, New York, New York, for
the plaintiffs-appellants.
Steven O. Kramer, John Nadolenco, Mack Anderson, Robert
P. Davis (argued), and Michele L. Odorizzi, Mayer Brown
LLP, Los Angeles, California, for the defendants-appellees.
OPINION
GOULD, Circuit Judge:
Steve Harris and Dennis F. Ramos (collectively, “Plain-
tiffs”) sued Amgen, Inc. (“Amgen”) and several Amgen direc-
tors and officers, alleging that the defendants breached their
fiduciary duties under the Employee Retirement Income
Security Act (“ERISA”) in their operation of two ERISA
retirement plans. The district court dismissed Harris’s claims
on the ground that he lacked standing as an ERISA plan “par-
ticipant” because he had withdrawn all of his assets from his
plan. It also dismissed Ramos’s claims, reasoning that
although Ramos had standing, he did not allege any claims
against defendants who were fiduciaries under the plan. The
HARRIS v. AMGEN, INC. 8823
district court then denied Plaintiffs leave to amend their com-
plaint.
We reverse the dismissal of Plaintiffs’ complaint. We hold
that Harris has standing as an ERISA plan participant to seek
relief under ERISA § 502(a)(2), codified at 29 U.S.C.
§ 1132(a)(2), despite having withdrawn all of his assets from
his plan. We also conclude that the district court improperly
denied Plaintiffs leave to amend their complaint to add more
factual allegations where necessary and to identify proper
fiduciaries of the Plaintiffs’ ERISA plans.
I
Amgen is a publicly traded biotechnology company that
operates Amgen Manufacturing, Ltd. (“Amgen Manufactur-
ing”) as a wholly owned subsidiary. Employees of Amgen are
entitled to participate in the Amgen Retirement and Savings
Plan (the “Amgen Plan”), and Amgen Manufacturing employ-
ees may participate in the Retirement and Savings Plan for
Amgen Manufacturing, Ltd. (the “Manufacturing Plan”).
Each Plan is a “defined contribution plan,” defined as “a pen-
sion plan which provides for an individual account for each
participant and for benefits based solely upon the amount con-
tributed to the participant’s account.” 29 U.S.C. § 1002(34).1
Amgen is a “named fiduciary” only of the Amgen Plan,2
and Amgen Manufacturing is a named fiduciary only of the
Manufacturing Plan. The Amgen Plan allows the Amgen
Board of Directors (the “Board”) to delegate management and
administration of the Plan to a “Fiduciary Committee.” Dur-
1
A defined contribution plan is distinct from a “defined benefit plan,”
which, with exceptions not relevant here, “means a pension plan other
than an individual account plan.” 29 U.S.C. § 1002(35).
2
A named fiduciary is “a fiduciary who is named in the plan instrument”
or by an authorized employer or employee organization. 29 U.S.C.
§ 1102(a)(2).
8824 HARRIS v. AMGEN, INC.
ing the time relevant to this appeal, fiduciary responsibilities
for both Plans were delegated to the Fiduciary Committee.
Steve Harris worked at Amgen until January 2007 and par-
ticipated in the Amgen Plan. His Amgen Plan holdings some-
times included Amgen stock. Harris withdrew his assets from
his Amgen Plan account in July 2007. Dennis F. Ramos
worked at Amgen Manufacturing until March 2007, partici-
pating in the Manufacturing Plan. His Manufacturing Plan
holdings also sometimes included Amgen Stock. Ramos still
has assets in the Manufacturing Plan.
In August 2007 Harris and Ramos filed a class action com-
plaint (the “Complaint”), alleging that during a 22-month
class period the defendants breached their fiduciary duties by
allowing the Plans to purchase and hold Amgen stock while
knowing that the stock price was artificially inflated because
of improper off-label drug marketing and sales. The Com-
plaint asserts that the Amgen stock price declined signifi-
cantly once the off-label activity became public, and Harris
and Ramos claim that the defendants are liable for the result-
ing losses suffered by the class members. The Complaint
sought relief under ERISA § 502(a)(2) (“Section 502(a)(2)”),
codified at 29 U.S.C. § 1132(a)(2), which authorizes a suit by
a plan participant “for appropriate relief” against a plan fidu-
ciary for breach of fiduciary duty.
The Complaint names as defendants Amgen, Amgen’s
chief financial officer, and nine Amgen Board members (col-
lectively, “Defendants”). Neither Amgen Manufacturing nor
the Fiduciary Committee is named as a defendant. However,
the Complaint does assert claims against a “Retirement Bene-
fits Committee of the Board of Directors of Amgen,” which
it claims has fiduciary responsibilities over both Plans.
Defendants filed a motion to dismiss for lack of subject
matter jurisdiction under Federal Rule of Civil Procedure
(“Rule”) 12(b)(1), and for failure to state a claim under Rule
HARRIS v. AMGEN, INC. 8825
12(b)(6). The district court granted the motion and dismissed
with prejudice all of Harris’s claims, concluding that Harris
did not have statutory standing as a “participant” in the
Amgen Plan because he had already cashed out of his Plan
account. The district court determined that Ramos had stand-
ing because he still had assets in the Manufacturing Plan, but
it dismissed with prejudice all of Ramos’s claims on the
ground that neither Amgen, the alleged retirement committee,
nor the named defendants were fiduciaries of the Manufactur-
ing Plan.
The district court also denied Plaintiffs’ request for leave to
amend their Complaint. The district court reasoned that Harris
could not cure his lack of standing through amendment and
that Ramos did not “have a viable claim against the named
defendants.” The district court expressly made “no determina-
tion as to whether Plaintiffs have a viable claim against
Amgen Manufacturing or the members of the Fiduciary Com-
mittee.” Harris and Ramos appeal the dismissal of their claims
and the denial of leave to amend.
II
A
We first consider whether the district court properly deter-
mined that Harris lacked standing under Section 502(a)(2)
because he had withdrawn his assets from the Amgen Plan.
We review questions of standing under ERISA de novo. Stew-
art v. Thorpe Holding Co. Profit Sharing Plan, 207 F.3d
1143, 1148 (9th Cir. 2000).3
3
Although the district court dismissed Harris’s claims for lack of subject
matter jurisdiction, a dismissal for lack of statutory standing is properly
viewed as a dismissal for failure to state a claim. See Vaughn v. Bay Envtl.
Mgmt., Inc., 567 F.3d 1021, 1024 (9th Cir. 2009). However, “[b]ecause we
review dismissals under both Rule 12(b)(1) and Rule 12(b)(6) de novo, the
district court’s error [in characterization] does not affect the result in this
case.” Id. (citation omitted).
8826 HARRIS v. AMGEN, INC.
[1] “To establish standing to sue under ERISA, [plaintiffs]
must show that they are plan ‘participants.’ ” Poore v. Simp-
son Paper Co., 566 F.3d 922, 925 (9th Cir. 2009). Plaintiffs
seek relief under Section 502(a)(2), which grants standing to
a plan participant to bring an action against a defendant who
breaches a fiduciary duty with respect to that plan. See 29
U.S.C. § 1132(a)(2). An ERISA plan participant is “any
employee or former employee of an employer . . . who is or
may become eligible to receive a benefit of any type from an
employee benefit plan which covers employees of such
employer . . . .” 29 U.S.C. § 1002(7). This definition encom-
passes “former employees who have . . . a colorable claim to
vested benefits.” Firestone Tire & Rubber Co. v. Bruch, 489
U.S. 101, 117 (1989) (internal quotation omitted). “In con-
trast, former employees do not have standing if a successful
suit would result in a damage award that was not for benefits
due under the plan.” Vaughn v. Bay Envtl. Mgmt., Inc., 567
F.3d 1021, 1025 (9th Cir. 2009) (citing Kuntz v. Reese, 785
F.2d 1410, 1411 (9th Cir. 1986) (per curiam)).
The district court relied on Kuntz in concluding that Harris
was not a “participant” in the Amgen Plan. In Kuntz, we held
that a plaintiff who alleges that a former employer misrepre-
sented the benefits due under a defined benefit ERISA plan
does not have standing if that plaintiff already received all
benefits that were due before filing suit and seeks only a dam-
age award. Kuntz, 785 F.2d at 1411. The district court rea-
soned that because Harris had cashed out of the Amgen Plan,
any recovery he receives would be a damage recovery, and he
would not have prevailed in a “suit for benefits,” Firestone,
489 U.S. at 117, because “a damage claim is not a plan bene-
fit.” Kuntz, 785 F.2d at 1411.
[2] When it dismissed Harris’s claims, the district court did
not have the benefit of the reasoning and holding in our sub-
sequent decision in Vaughn, in which we distinguished Kuntz
and held that “former employees who have received a full dis-
tribution of their account balances under a defined contribu-
HARRIS v. AMGEN, INC. 8827
tion pension plan have standing as plan participants under
ERISA to recover losses occasioned by a breach of fiduciary
duty that allegedly reduced the amount of their benefits.”
Vaughn, 567 F.3d at 1030. In Vaughn the plaintiff sued fidu-
ciaries of his employer’s defined contribution ERISA plans,
alleging that the fiduciaries breached their fiduciary duties
with respect to the plans when they did not take certain
actions despite knowing the plans would be terminated. The
plaintiff claimed that “he has not received all of the benefits
due to him under the Plans . . . . because his accounts con-
tained less than they would have if the fiduciaries had not
breached their duty of prudent investment.” Id. at 1026.
The district court in Vaughn had granted the defendants’
motion to dismiss based on Kuntz, but on the appeal we dis-
tinguished Kuntz because there the plaintiffs had “conceded
that they had received all of the benefits due to them under the
plan [and] alleged only that they would not have participated
in the plan but-for the defendant’s misrepresentations about
the amount of benefits they would receive.” Id. We held in
Vaughn that “[b]ecause [the plaintiff] alleges that he did not
receive everything that was due to him under the Plan, he has
standing, even under Kuntz.” Id. We also noted that every
other circuit to have considered this issue has held that a
defined contribution plan plaintiff has ERISA standing. See
id. at 1023 & n.1 (citing cases).
[3] Despite the marked similarity between this case and
Vaughn, Defendants contend that we should distinguish
Vaughn on two grounds. First, Defendants argue that Vaughn
is not controlling because there the employer terminated the
ERISA plans, but here Harris voluntarily withdrew his assets
from the still existing Amgen Plan. However, our reasoning
in Vaughn does not turn on a distinction between employer
termination and voluntary withdrawal. Also, other circuits
have granted plaintiffs ERISA standing to pursue breach of
fiduciary duty claims even when the plaintiffs had voluntarily
cashed out of their ERISA plans. See, e.g., In re Mutual
8828 HARRIS v. AMGEN, INC.
Funds Inv. Litig., 529 F.3d 207, 210 (4th Cir. 2008);
Harzewski v. Guidant Corp., 489 F.3d 799, 804 (7th Cir.
2007). When employees withdraw their funds from a benefit
plan, but claim that they would have had more to withdraw
absent breach of fiduciary duty by those managing the plan,
it is not difficult to see a common sense loss of benefits in
their plan caused by the alleged fiduciary breach. Relying on
Vaughn, which we conclude is not distinguishable in any
material way, we hold that employees who cash out of a
defined contribution ERISA plan are still “participants” in
that plan, as defined by 29 U.S.C. § 1002(7), regardless of
whether they withdrew their assets voluntarily. Thus the dis-
trict court’s conclusion on standing, reached without the bene-
fit of our subsequently decided Vaughn precedent, must be
reversed. Harris had standing to complain about his retirement
benefits plan.
Second, at oral argument, Defendants conceded that Harris
was a participant in the Amgen Plan, but for the first time
argued that Harris should have statutory standing only under
ERISA § 502(a)(1)(B) (“Section 502(a)(1)(B)”), and not Sec-
tion 502(a)(2).4 Defendants rely on Chief Justice Roberts’s
concurrence in LaRue v. DeWolff, Boberg & Assocs., Inc.,
128 S. Ct. 1020 (2008). In LaRue the Supreme Court held that
an ERISA plan participant may recover monetary losses to his
or her individual plan account due to an alleged fiduciary
breach. Id. at 1026. In his concurrence, which was joined only
by Justice Kennedy, Chief Justice Roberts said that “[i]t is at
least arguable that a claim of this nature properly lies only
under § 502(a)(1)(B) of ERISA,” id., and he concluded that
“other courts in other cases remain free to consider what we
4
Section 502(a)(1)(B) allows a plan participant “to recover benefits due
to him under the terms of his plan.” 29 U.S.C. § 1132(a)(1)(B). By con-
trast, Section 502(a)(2) encompasses claims based on breach of fiduciary
duty and allows for the more expansive recovery of “appropriate relief,”
including disgorgement of profits and equitable remedies. See 29 U.S.C.
§§ 1132(a)(2), 1109.
HARRIS v. AMGEN, INC. 8829
have not—what effect the availability of relief under
§ 502(a)(1)(B) may have on a plan participant’s ability to pro-
ceed under § 502(a)(2),” id. at 1028. Defendants argue that
because Harris could bring a claim under Section
502(a)(1)(B), he lacks standing to bring a claim under Section
502(a)(2).
[4] We reject Defendants’ attempt to create a distinction on
standing between two similar ERISA causes of action.
Although Defendants are correct that in Vaughn a Section
502(a)(1)(B) remedy was unavailable,5 nothing in Vaughn
indicates that its decision depended on the unavailability of
this remedy. Also, at least two circuits that have analyzed
whether a distinction on standing exists between Sections
502(a)(1)(B) and 502(a)(2) have concluded that “[t]his dichot-
omy is untenable.” Evans v. Akers, 534 F.3d 65, 72-73 (1st
Cir. 2008) (“The chief difference between an action brought
under § 502(a)(1)(B) and § 502(a)(2) is the proper defendant,
not the proper plaintiff. . . . Bringing the suit under
§ 502(a)(2) does not change the underlying nature of the
plaintiffs’ claim as one for benefits.” (quotation and citation
omitted)); Graden v. Conexant Sys. Inc., 496 F.3d 291, 301
(3d Cir. 2007) (stating that even when plaintiffs “could
demand a full benefit payment from the plan itself under
§ 1132(a)(1)(B) . . . . for most plaintiffs the sensible route is
to use § 1132(a)(2) to get the money in the first instance from
a solvent party liable to make good on the loss, not from the
plan itself”). We agree with the reasoning of the First and
Third Circuits, and we join them in holding that an ERISA
plan participant who no longer has assets in the plan has statu-
tory standing to assert fiduciary duty claims under Section
5
In Vaughn, the ERISA plans at issue “no longer exist[ed] and the alleg-
edly imprudent investments were the result of actions by the trustees and
investment advisors, not the plan administrator. As a result, Vaughn could
not have brought an action under § 502(a)(1)(B) because the proper defen-
dants could not have been named under that subsection.” Vaughn, 567
F.3d at 1029.
8830 HARRIS v. AMGEN, INC.
502(a)(2), even when relief is also available under Section
502(a)(1)(B).
B
Defendants next argue that even if Harris has statutory
standing, we still must dismiss his claims for lack of standing
under Article III of the United States Constitution because
Harris has not sustained an injury that is redressable by a
favorable decision of this court. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992) (holding that Article III
standing requires that “it must be ‘likely,’ as opposed to
merely ‘speculative,’ that the injury will be redressed by a
favorable decision” (quotation omitted)). Defendants contend
that any benefit to Harris is “merely speculative” because any
recovery from Harris’s suit would go to the Amgen Plan, and
plan administrators have discretion in allocating plan assets.
See Paulsen v. CNF Inc., 559 F.3d 1061, 1073 (9th Cir. 2009)
(“The Supreme Court has held that recovery for a violation of
29 U.S.C. § 1109 for breach of fiduciary duty inures to the
benefit of the plan as a whole, and not to an individual benefi-
ciary.” (citing Mass. Mut. Life Ins. Co. v. Russell, 473 U.S.
134, 140-42 (1985))).
[5] Defendants are not the first ERISA defendants to make
this redressability argument, and to our knowledge their
asserted reasoning has been rejected by every circuit to con-
sider the issue with respect to defined contribution plans. See
Evans, 534 F.3d at 74-75 (“[T]he [ERISA] plaintiffs’ allega-
tion of fiduciary mismanagement . . . identifies a concrete
injury that is redressable by a court and falls within the scope
of Article III standing.”); Mutual Funds, 529 F.3d at 210
(“[B]ecause the plans at issue are defined contribution plans,
rather than defined benefit plans, we reject the defendants’
argument that the plaintiffs’ injuries are not redressable and
therefore that they lack Article III standing.”); Harzewski, 489
F.3d at 803 (“Obviously the named plaintiffs have [Article
III] standing to sue . . . because if they win they will obtain
HARRIS v. AMGEN, INC. 8831
a tangible benefit.”). With a favorable ruling, a defined contri-
bution plan plaintiff alleging breach of fiduciary duty claims
under Section 502(a)(2) can gain redress by “su[ing] for an
adjustment in the benefits designed to give him what he
would have received had the formula been honored,”
Harzewski, 489 F.3d at 804-05.
Our previous decisions dismissing ERISA suits for lack of
redressability involved fundamentally different facts. Paulsen
concerned a Section 502(a)(2) suit on a defined benefit plan,
but “the redressability problem that arises in defined benefit
plans does not exist with respect to defined contribution
plans” because in defined contribution plans a successful suit
leads to restoration of individual accounts. Mutual Funds, 529
F.3d at 218; see also Vaughn, 567 F.3d at 1028 n.9
(“[P]recedent from cases involving defined benefit plans is
not automatically applicable in cases involving defined contri-
bution plans.” (citing LaRue, 128 S. Ct. at 1025)). Also, in
Paulsen the plaintiffs’ ERISA plan was “distress terminated”
and had fallen under the management of the Pension Benefit
Guaranty Corporation (“PBGC”) acting as a trustee. Paulsen,
559 F.3d at 1066. We noted that the PBGC was controlled by
a “complex priority scheme” in paying benefits, and it was
under no obligation to pay the plaintiffs any money above a
statutory minimum. Id. at 1073.
In Glanton ex rel. ALCOA Prescription Drug Plan v.
AdvancePCS Inc., 465 F.3d 1123 (9th Cir. 2006), the plain-
tiffs, who were prescription drug plan participants, claimed
that their success in an ERISA lawsuit regarding drug costs
would cause the plan administrators to lower co-payment or
contribution amounts. Id. at 1125. The link between the plain-
tiffs’ claims and possible recovery in Glanton was more atten-
uated than are Harris’s claims here, because the Glanton
plaintiffs relied not directly on fiduciary recovery but on the
assumption that the defendants would voluntarily change co-
payment requirements. See id.
8832 HARRIS v. AMGEN, INC.
[6] We agree with the First, Fourth, and Seventh Circuits
that there is no lack of redressability merely because a plain-
tiff ’s recovery under Section 502(a)(2) might first go to the
defined contribution plan rather than directly to the plaintiff.
We hold that a plaintiff who has cashed out of a defined con-
tribution ERISA plan has standing under Article III to assert
Section 502(a)(2) claims relating to that plan.
[7] In summary, we reject Defendants’ arguments that Har-
ris lacks either statutory or constitutional standing. We follow
our precedent in Vaughn and hold that a former employee
who has voluntarily withdrawn his or her assets from a
defined contribution ERISA plan has statutory standing as a
“participant” of that plan. That employee has standing to
assert claims for breach of fiduciary duty under section
502(a)(2) of ERISA even if claims under Section
§ 502(a)(1)(B) are also available. We also hold that Section
502(a)(2) claims on a defined contribution plan to recover
losses occasioned by a breach of fiduciary duty are redress-
able and meet the constitutional standing requirements of
Article III. Accordingly, we reverse the district court’s dis-
missal of Harris’s claims on standing grounds.
C
[8] Both plaintiffs challenge the district court’s decision to
deny them leave to amend their Complaint. Plaintiffs seek
through amendment to cure any defects in their allegations
against the individual defendants,6 and properly to name the
6
The district court determined that the Complaint made insufficient fac-
tual allegations that the individual defendants were fiduciaries of Ramos’s
ERISA plan. See Pegram v. Herdrich, 530 U.S. 211, 226 (2000) (“In
every case charging breach of ERISA fiduciary duty, then, the threshold
question is . . . whether [the defendant] was acting as a fiduciary (that is,
was performing a fiduciary function) when taking the action subject to
complaint.”). We agree with the district court that the Complaint does not
contain factual allegations against the individual defendants sufficient “to
HARRIS v. AMGEN, INC. 8833
misidentified fiduciaries of the Amgen and Manufacturing
Plans. Dismissal without leave to amend is improper unless it
is “clear” that “the complaint could not be saved by any
amendment.” Lee v. City of Los Angeles, 250 F.3d 668, 692
(9th Cir. 2001) (quotation omitted); see also Chappel v. Lab.
Corp. of Am., 232 F.3d 719, 726 (9th Cir. 2000) (holding that
the district court abused its discretion in denying an ERISA
plaintiff leave to amend because “amendment would allow
[the plaintiff] to state a legally cognizable claim for breach of
fiduciary duty”). We agree with Plaintiffs that the district
court erred by not granting leave to amend.
[9] We do not believe that it can be fairly said that the
Complaint cannot be saved by amendment. The district court
denied Harris leave to amend because it had determined that
Harris lacked standing and thus could not allege a valid claim.
Because we have held that Harris has statutory and constitu-
tional standing, we also conclude that Harris should be
allowed to amend his claims in the Complaint to challenge the
proper defendants and to present any viable claim. Both plain-
tiffs also should be allowed to amend their claims against the
individual defendants because it is not “clear” that Plaintiffs
cannot save their Complaint by adding sufficient factual alle-
gations supporting their claims that the individual defendants
were fiduciaries of the Amgen or Manufacturing Plans. Lee,
250 F.3d at 692.
Plaintiffs’ remaining claims were dismissed because they
misidentified the proper fiduciary defendants. Although Plain-
tiffs did not name the Fiduciary Committee as a defendant,
they did name a Retirement Benefits Committee, which they
raise a right to relief above the speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007); id. (stating that to survive a motion
to dismiss, a plaintiff must provide “more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not do”);
see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009) (holding that the
pleading requirements stated in Twombly apply to “all civil actions”).
8834 HARRIS v. AMGEN, INC.
thought served the same fiduciary functions. Also, Plaintiffs
identified Amgen as the named fiduciary of the Manufactur-
ing Plan, when in fact Amgen Manufacturing is the named
fiduciary of that plan. In both cases, Plaintiffs would have
sued the proper fiduciary but for a misidentification of the
correct defendant, and their claims against Amgen Manufac-
turing and the Fiduciary Committee can be saved by amend-
ment. See Bowles v. Reade, 198 F.3d 752, 758-59 (9th Cir.
1999) (reversing denial of leave to amend when the defendant
to be added by the amendment “knew or should have known
that, but for the mistaken identification, she would be a proper
party defendant in the action”).
[10] We conclude that Plaintiffs are entitled by law to
amend their Complaint to assert claims against the proper
fiduciaries of the Amgen and Manufacturing Plans. A sound
theory of pleading should normally permit at least one amend-
ment of a complex ERISA complaint that has failed to state
a claim where, as here, the Plaintiffs might be expected to
have less than complete information about the defendants’
organization and ERISA responsibilities, where there is no
meaningful evidence of bad faith on the part of the plaintiffs,
and where there is no significant prejudice to the defendants.
We reverse the district court’s denial of leave to amend.
III
Fiduciaries of an ERISA defined contribution plan who
breach their fiduciary duty might cause employees to receive
fewer benefits from their plans than they would have received
absent the breach. This is true even if the employees later
withdraw their assets from the plan. We conclude that former
employees who have voluntarily withdrawn assets from their
ERISA defined contribution plans have statutory and Article
III standing to assert fiduciary claims against Plan fiduciaries
under ERISA § 502(a)(2), regardless of whether a separate
remedy is available under ERISA § 502(a)(1)(B). We also
conclude that any defects in Plaintiffs’ Section 502(a)(2)
HARRIS v. AMGEN, INC. 8835
Complaint possibly can be cured through amendment. We
reverse the district court’s dismissal of Plaintiffs’ Complaint,
and we remand for proceedings consistent with this opinion.
REVERSED and REMANDED.