Collins v. Ne. Grocery, LLC

24-2339-cv
Collins v. Ne. Grocery, LLC
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM 2024
ARGUED: MARCH 10, 2025
D ECIDED: AUGUST 18, 2025
No. 24-2339-cv
GAIL C OLLINS, DEAN D E V ITO, MICHAEL L AMOUREUX , S COTT L OBDELL ,
individually, on behalf of the Northeast Grocery, Inc. 401(k) Savings Plan
and on behalf of all similarly situated participants and beneficiaries of the
Plan,
Plaintiffs-Appellants,
v.
N ORTHEAST GROCERY , INC., THE ADMINISTRATIVE COMMITTEE OF THE
N ORTHEAST GROCERY , INC. 401( K ) S AVINGS PLAN, J OHN AND J ANE
D OES 1-30, in their capacities as Members of the Administrative
Committee,
Defendants-Appellees.*
________
* The Clerk of Court is respectfully directed to amend the caption as set
forth above.

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2 No. 24-2339-cv
Appeal from the United States District Court
for the Northern District of New York.
________
Before: WALKER , WESLEY , and B IANCO, Circuit Judges.
________
Former grocery store employees who are participants in an
employer-sponsored defined contribution retirement benefit plan
brought a putative class action under the Employee Retirement
Income Security Act of 1974 (“ERISA”), as amended, 29 U.S.C. § 1001
et seq., on behalf of the Northeast Grocery 401(k) Plan (the “Plan”) and
similarly situated Plan participants, against various fiduciaries of the
Plan. The district court (Hurd, J.) dismissed for lack of Article III
standing aspects of Plaintiffs’ claims that the Plan mismanaged
workers’ retirement savings by failing to follow a prudent process for
administering the Plan and by failing to act in the exclusive interest
of Plan participants.
In this opinion we address Plaintiffs’ challenge to the district
court’s dismissal of their claims for lack of standing. We address the
district court’s dismissal of Plaintiffs’ remaining claims for failure to
state a claim and its denial of leave to amend in a summary order
issued simultaneously with this opinion.
Participants in a defined contribution benefit plan governed by
ERISA must plausibly plead a constitutionally-cognizable individual
injury to establish that they have Article III standing to obtain
monetary relief for alleged ERISA violations. We agree with the
district court that Plaintiffs here lack Article III standing because they
did not allege that they suffered any financial loss affecting their
individual retirement accounts arising from Defendants’ allegedly
imprudent share class selection and failure to investigate the

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3 No. 24-2339-cv
availability of alternative funds, or from Defendants’ alleged breach
of fiduciary duty in providing indirect compensation to the Plan’s
recordkeeper. Plaintiffs had not directed their retirement
contributions into the allegedly imprudently or disloyally managed
investment options and thus did not allege any individual injury
arising from Defendants’ management of those options. Moreover,
because Plaintiffs did not plausibly allege that they personally
suffered any injury, they also lack class standing to assert their share-
class claim, alternative fund claim, and indirect compensation claims
on behalf of the class.
For the reasons set forth below and in the summary order, we
AFFIRM IN PART and VACATE IN PART the judgment of the
district court and remand for further proceedings consistent with this
opinion and the summary order.
________
P AUL J. S HARMAN, The Sharman Law Firm LLC,
Alpharetta, Georgia, for Plaintiffs-Appellants.
E RIKA N. D. S TANAT , Harter Secrest & Emery LLP,
Rochester, New York (Michael-Anthony Jaoude,
Harter Secrest & Emery LLP, Buffalo, New York,
on the brief), for Defendants-Appellees.
________
J OHN M. WALKER , J R ., Circuit Judge:
Former grocery store employees who are participants in an
employer-sponsored defined contribution retirement benefit plan
brought a putative class action under the Employee Retirement
Income Security Act of 1974 (“ERISA”), as amended, 29 U.S.C. § 1001
et seq., on behalf of the Northeast Grocery 401(k) Plan (the “Plan”) and

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4 No. 24-2339-cv
similarly situated Plan participants, against various fiduciaries of the
Plan. The district court (Hurd, J.) dismissed for lack of Article III
standing aspects of Plaintiffs’ claims that the Plan mismanaged
workers’ retirement savings by failing to follow a prudent process for
administering the Plan and by failing to act in the exclusive interest
of Plan participants.
In this opinion we address Plaintiffs’ challenge to the district
court’s dismissal of their claims for lack of standing. We address the
district court’s dismissal of Plaintiffs’ remaining claims for failure to
state a claim and its denial of leave to amend in a summary order
issued simultaneously with this opinion.
Participants in a defined contribution benefit plan governed by
ERISA must plausibly plead a constitutionally-cognizable individual
injury to establish that they have Article III standing to obtain
monetary relief for alleged ERISA violations. We agree with the
district court that Plaintiffs here lack Article III standing because they
did not allege that they suffered any financial loss affecting their
individual retirement accounts arising from Defendants’ allegedly
imprudent share class selection and failure to investigate the
availability of alternative funds, or from Defendants’ alleged breach
of fiduciary duty in providing indirect compensation to the Plan’s
recordkeeper. Plaintiffs had not directed their retirement
contributions into the allegedly imprudently or disloyally managed
investment options and thus did not allege any individual injury
arising from Defendants’ management of those options. Moreover,
because Plaintiffs did not plausibly allege that they personally
suffered any injury, they also lack class standing to assert their share-
class claim, alternative fund claim, and indirect compensation claims
on behalf of the class.

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5 No. 24-2339-cv
For the reasons set forth below and in the summary order, we
AFFIRM the judgment of the district court.
BACKGROUND1
Plaintiffs are four former employees of Tops Market and Price
Chopper Supermarkets and participants in the Northeast Grocery
401(k) Savings Plan (the “Plan”), an employee pension benefit plan
covered by ERISA, 29 U.S.C. § 1001 et seq. Plaintiffs assert that the
Plan’s fiduciaries mismanaged the Plan and violated ERISA. They
brought this action on behalf of themselves, the Plan, and a proposed
class of participants and beneficiaries of the Plan as of January 1, 2018.
Plaintiffs sought, inter alia, disgorgement and injunctive relief,
including the replacement of some of the Plan’s fiduciaries.
Defendants are fiduciaries of the Plan: the Plan’s sponsor,
Northeast Grocery, Inc. (the post-merger parent company of Tops
Market and Price Chopper Supermarkets); the Plan’s administrator,
the Administrative Committee of The Northeast Grocery 401(k)
Savings Plan (the “Committee”); and the Committee’s members, John
and Jane Does 1-30, in their capacity as fiduciaries of the Plan
(collectively, “Defendants”).
The Plan is a defined contribution plan, which means that it
“provides for an individual account for each participant and for
benefits based solely upon the amount contributed to the participant’s
account, and any income, expenses, gains and losses, and any
forfeitures of accounts of other participants which may be allocated
to such participant’s account.” 29 U.S.C. § 1002(34). Put differently,
participants in such a plan “maintain individual investment
accounts,” for which the accounts’ value “is determined by the market
1 We draw our presentation of the facts from Plaintiffs’ complaint.

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6 No. 24-2339-cv
performance of employee and employer contributions, less
expenses.” Cunningham v. Cornell Univ., 86 F.4th 961, 969 (2d Cir.
2023) (quoting Tibble v. Edison Int’l, 575 U.S. 523, 525 (2015)), rev'd and
remanded on other grounds, 145 S. Ct. 1020 (2025). The Plan’s
administrators select for plan participants a menu of investment
options, from which the participants themselves choose where to
invest their retirement contributions. Id.
Here, the Plan provided participants with a menu of twenty-
eight pre-selected investment options. Plaintiff Gail Collins invested
her retirement contributions in the Wells Fargo Stable Return Fund,
Lord Abbett Multi-Asset Balanced Fund, Dreyfus Strategic Value
Fund, and T. Rowe Price Blue Chip Growth I Fund. Plaintiff Scott
Lobdell invested his retirement contributions in the MFS Value R6
Fund, the T. Rowe Price Blue Chip Growth I Fund, and the American
Funds NewPrsp R6 Fund. Plaintiffs Dean DeVito and Michael
Lamoureux invested their Plan assets in “one or more of the funds”
discussed in the complaint, though the complaint did not specify
which ones. Compl. ¶¶ 16, 18, App’x 10.
Plaintiffs sought relief for Defendants’ allegedly imprudent
and disloyal management of the Plan under 29 U.S.C. §§ 1132(a)(2)
and (a)(3).2 Their complaint principally alleged that Defendants
2 Section 1132(a)(2) provides that a plan participant or beneficiary may
bring a civil action to obtain “appropriate relief under section 1109 of this
title.” 29 U.S.C. § 1132(a)(2). Section 1109 provides: “Any person who is a
fiduciary with respect to a plan who breaches any of the responsibilities,
obligations, or duties imposed upon fiduciaries by this subchapter shall be
personally liable to make good to such plan any losses to the plan resulting
from each such breach, and to restore to such plan any profits of such
fiduciary which have been made through use of assets of the plan by the

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7 No. 24-2339-cv
failed to establish a prudent process to select and monitor the Plan’s
investments, performance, and fees by failing to investigate the
availability of lower-cost, equally or better performing share classes
and alternative funds; monitor the performance of fund managers;
monitor and control the performance and related trust costs of the
Plan’s investment adviser; and monitor and control recordkeeper
fees. Plaintiffs also asserted that Defendants failed to act in the
exclusive interest of plan participants by seeking “open-ended
investment company revenue-sharing dollars” for their own benefit.
Compl. ¶ 123, App’x 31. The seven-count complaint asserted claims
for breaches of ERISA’s duties of prudence and loyalty, in violation
of 29 U.S.C. § 1104(a)(1); co-fiduciary liability under § 1105; breach of
ERISA’s duty to monitor3; engaging in prohibited transactions, in
violation of §§ 1106(a)-(b); and breach of fiduciary duty by omission.
fiduciary, and shall be subject to such other equitable or remedial relief as
the court may deem appropriate, including removal of such fiduciary.” Id.
§ 1109(a). Although ERISA “does not provide a remedy for individual
injuries distinct from plan injuries,” it does “authorize recovery for
fiduciary breaches that impair the value of plan assets in a participant’s
individual account.” LaRue v. DeWolff, Boberg & Assocs., Inc., 552 U.S. 248,
256 (2008).
Section 1132(a)(3) provides that a plan participant or beneficiary may
bring a civil action “(A) to enjoin any act or practice which violates any
provision of this subchapter or the terms of the plan, or (B) to obtain other
appropriate equitable relief (i) to redress such violations or (ii) to enforce
any provisions of this subchapter or the terms of the plan.” 29 U.S.C.
§ 1132(a)(3).
3 ERISA does not expressly require that plan fiduciaries who appoint
other plan fiduciaries monitor those appointed fiduciaries (here, that

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8 No. 24-2339-cv
The district court granted Defendants’ motion to dismiss the
complaint. It held that Plaintiffs failed to establish that they had
Article III standing to bring claims alleging fiduciary breaches arising
from Defendants’ share class selection, failure to investigate the
availability of alternative funds, and revenue sharing. In particular,
the court found that Plaintiffs had not alleged any constitutionally-
cognizable injury in connection with the specific investment options
criticized in the complaint in which Plaintiffs did not invest. By
contrast, it held that Plaintiffs had standing to allege fiduciary
breaches arising from Defendants’ failure to monitor the performance
of the portfolio managers of three funds, the Plan’s investment
manager’s performance and costs, and the Plan’s direct compensation
of its recordkeeper.
The district court then dismissed the remaining claims for
which Plaintiffs had standing for failure to state a claim and
dismissed the complaint with prejudice, denying Plaintiffs leave to
amend.
In addressing the standing factors, the district court observed
that “[t]he Second Circuit has not definitively resolved the issue of
whether and to what extent participants of a defined contribution
plan must demonstrate individual harm in order to bring claims
concerning funds that they did not personally invest in.” App’x 68
Northeast Grocery, as the Plan’s sponsor, monitor members of the
Committee). We have nonetheless recognized that a plaintiff may assert a
“derivative” claim against the appointing fiduciary for its failure to monitor
the appointed fiduciaries in an underlying breach of a fiduciary duty.
Rinehart v. Lehman Bros. Holdings Inc., 817 F.3d 56, 68 (2d Cir. 2016) (per
curiam) (holding that plaintiffs “cannot maintain a claim for breach of the
duty to monitor [against appointing defendants] absent an underlying
breach of the duties imposed under ERISA” by appointed defendants).

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9 No. 24-2339-cv
(citing Garthwait v. Eversource Energy Co., 3:20-CV-00902(JCH), 2022
WL 1657469, at *7 (D. Conn. May 25, 2022)). This observation
prompted this opinion.
LEGAL STANDARD
We review de novo a district court’s determination on
standing. Am. Psychiatric Ass’n v. Anthem Health Plans, Inc., 821 F.3d
352, 357 (2d Cir. 2016). When standing is challenged on the face of the
pleadings, as here, we “accept as true all material allegations of the
complaint, and must construe the complaint in favor of the
complaining party.” Id. (quotation marks omitted). Factual
allegations of standing must be plausible and nonconclusory to
survive a motion to dismiss. Amidax Trading Grp. v. S.W.I.F.T. SCRL,
671 F.3d 140, 145–46 (2d Cir. 2011) (per curiam) (applying the
pleading standards of Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007), to a motion to dismiss for
lack of standing under Fed. R. Civ. P. 12(b)(1)).
DISCUSSION
Plaintiffs must establish for each claim that they have what we
previously called “statutory standing,” a “statutory cause of action to
sue a defendant over the defendant’s violation of federal law,”
TransUnion LLC v. Ramirez, 594 U.S. 413, 426 (2021);4 constitutional, or
4 We retired the appellation “statutory standing” because “statutory
standing in fact is not a standing issue, but simply a question of whether
the particular plaintiff has a cause of action under the statute.” Am.
Psychiatric Ass’n, 821 F.3d at 359 (quotation marks omitted)). We recognize
the defunct term here solely to help clarify apparent confusion regarding
the various forms of standing in the context of defined contribution plan

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10 No. 24-2339-cv
Article III, standing (a constitutionally-cognizable injury arising from
the defendant’s breach of the statutorily imposed duty); and, because
this is a putative class action, “class standing” (standing to bring class
claims on behalf of absent class members). Am. Psychiatric Ass’n, 821
F.3d at 358-59 (discussing constitutional standing); NECA-IBEW
Health & Welfare Fund v. Goldman Sachs & Co. (“NECA”), 693 F.3d 145,
158 & n.9 (2d Cir. 2012) (discussing class standing); Ret. Bd. of the
Policemen's Annuity & Ben. Fund of the City of Chicago v. Bank of N.Y.
Mellon (“Ret. Bd.”), 775 F.3d 154, 160-61 (2d Cir. 2014) (same).
There is no dispute that ERISA gives Plaintiffs a cause of action
to sue Defendants . ERISA is a “comprehensive federal statute” that
regulates employee benefit plans, as well as the fiduciaries who act
on behalf of plan participants and beneficiaries. Haley v. Tchrs. Ins. &
Annuity Ass'n of Am., 54 F.4th 115, 119 (2d Cir. 2022). To achieve its
goal of “protect[ing] . . . individual pension rights,” H.R. Rep. No. 93-
533, at 1 (1974), ERISA imposes “standards of conduct, responsibility,
and obligation[s]” on plan fiduciaries, Pilot Life Ins. Co. v. Dedeaux, 481
U.S. 41, 44 (1987) (quoting 29 U.S.C. § 1001(b)). These standards are
among “the highest known to the law.” Flanigan v. Gen. Elec. Co., 242
F.3d 78, 86 (2d Cir. 2001) (quotation marks omitted). ERISA creates a
private right of action for plan participants such as Plaintiffs to sue
for relief for an alleged ERISA violation. See 29 U.S.C. § 1132(a).
Plaintiffs, who are Plan participants, allege various ERISA violations.
But this “does not necessarily provide constitutional standing,” Cent.
States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed
Care, L.L.C., 433 F.3d 181, 199 (2d Cir. 2005) (quotation marks
omitted), or class standing.
participants’ ERISA claims. In acknowledging the term, we do not intend
to bring it out of retirement.

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11 No. 24-2339-cv
Here, Plaintiffs lack both Article III and class standing to assert
several of their claims because they did not plead that they suffered
any individual harm arising from Defendants’ allegedly imprudent
and/or disloyal management of investment options in which they did
not personally invest or any plan-wide harm affecting their
individual accounts. Similarly, they failed to plead any individual
harm arising from Defendants’ compensation of the Plan’s
recordkeeper via revenue sharing fees for funds in which Plaintiffs
did not personally invest.
We address Plaintiffs’ individual standing and class standing
in turn, accepting the district court’s invitation to clarify our
standards applicable to the standing of a defined contribution plan
plaintiff individually and on behalf of a putative class.
I. Individual Standing
Article III of the Constitution “confines the federal judicial
power to the resolution of ‘Cases’ and ‘Controversies.’” TransUnion
LLC, 594 U.S. at 423 (quoting U.S. Const. art. III, § 2). To establish that
they have the requisite “personal stake” in each of their claims,
Plaintiffs must allege that they suffered an injury that: (1) is “concrete,
particularized, and actual or imminent”; (2) was likely caused by the
acts or omissions of the defendant; and (3) will likely be redressed by
the requested judicial relief. Id. (quotation marks omitted). “If the
plaintiff does not claim to have suffered an injury that the defendant
caused and the court can remedy, there is no case or controversy for
the federal court to resolve.” Id. (internal quotation marks and
citation omitted).
Our precedent demonstrates that defined contribution plan
participants seeking to obtain monetary relief for alleged ERISA
violations must allege a non-speculative financial loss actually

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12 No. 24-2339-cv
affecting, or imminently threatening to affect, their individual
retirement accounts. See Cent. States Se., 433 F.3d at 200 (“Obtaining
restitution or disgorgement under ERISA requires that a plaintiff
satisfy the strictures of constitutional standing by demonstrating
individual loss.” (internal quotation marks omitted) (alteration
accepted)); Kendall v. Emps. Ret. Plan of Avon Prods., 561 F.3d 112, 121-
22 & n.15 (2d Cir. 2009) (affirming dismissal for lack of standing for
plaintiff’s failure to allege “an identifiable and quantifiable injury”
that was “specific to her”), abrogated in part on other grounds as
recognized in Am. Psychiatric Ass’n, 821 F.3d at 359; Taveras v. UBS AG,
612 F. App’x 27, 29 (2d Cir. 2015) (summary order) (affirming
dismissal for lack of standing where plaintiff alleged “injury to [the]
plan but not individualized injury to the plan participant”); see also
Thole v. U.S. Bank, 590 U.S. 538, 541 (2020) (affirming dismissal of
defined benefit plan participants’ claim for lack of standing where
plaintiffs failed to demonstrate actual or threatened individual
financial loss arising from defendants’ alleged ERISA violations).
For some of their claims, Plaintiffs satisfactorily alleged that all
Plan participants were harmed by Defendants’ purported fiduciary
breaches (failure to monitor the performance and compensation of the
Plan’s investment manager, and compensation of the Plan’s
recordkeeper) or that specific plaintiffs were harmed in a manner that
also injured other plan participants (failure to monitor the portfolio
managers of three funds, in one of which plaintiffs Collins and Lobell
invested their retirement assets). For others, however, Plaintiffs failed
to allege that their benefits were or would imminently be affected by
the performance of, or by fees associated with, investment options in
which they did not personally invest. Further, they failed to allege
individual harm from the allegedly flawed processes resulting in the
retention of the criticized investment options or the retention of

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13 No. 24-2339-cv
Committee members who retained the criticized funds. Plaintiffs’
conclusory allegations of plan-wide mismanagement did not
plausibly allege that Defendants’ purported misconduct affected all
plan participants, including them. Accordingly, the district court
correctly dismissed on Article III standing grounds Plaintiffs’ claims
for (1) breach of the duty of prudence based on a failure to investigate
the availability of alternative share classes; (2) breach of the duty of
prudence based on a failure to investigate the availability of
alternative funds; (3) breach of the duty of prudence based on
Defendants’ failure to monitor indirect recordkeeper costs; and
(4) breach of the duty of loyalty regarding funds with revenue
sharing. We address each claim in turn.
A. Failure to Investigate the Availability of Alternative Share
Classes
The complaint asserted that the Committee acted imprudently
by failing to investigate the availability of lower-cost and equally or
better performing share classes. The existence of less expensive and
equal and/or better performing share classes for a particular fund may
support an inference that a fiduciary acted in violation of ERISA by
imprudently selecting and/or failing to properly monitor and remove
the more expensive share class. See Sacerdote v. N.Y. Univ., 9 F.4th 95,
108-10 (2d Cir. 2021). Plaintiffs, however, lack Article III standing to
press their share-class claim. See Spokeo, Inc. v. Robins, 578 U.S. 330,
341 (2016) (rejecting the proposition that “a plaintiff automatically
satisfies the injury-in-fact requirement whenever a statute grants a
person a statutory right and purports to authorize that person to sue
to vindicate that right”); TransUnion, 594 U.S. at 426-27.
Plaintiffs did not allege that they suffered any individual injury
arising from Defendants’ failure to investigate the availability of

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14 No. 24-2339-cv
lower-cost and equally or better performing share classes. The
complaint identified three investment options whereby the
Committee, despite the availability of better alternatives, allegedly
chose more expensive share classes: the T. Rowe Price Retirement
Trust “A” target date series, the Loomis Sayles Small Cap Value Fund,
and the Loomis Sayles Small Cap Growth Fund. But the complaint
did not allege that any Plaintiff invested in any of these imprudent
funds. Nor did it allege, in a non-conclusory fashion, that any
Plaintiff invested in any other fund for which lower-cost and equal-
or-better-performing share classes were available. ERISA “does not
confer a right to every plan participant to sue the plan fiduciary for
alleged ERISA violations without a showing that they were injured
by the alleged breach of the duty,” which Plaintiffs failed to do here.
Kendall, 561 F.3d at 120.
Plaintiffs argue that they pled facts from which the district
court should have drawn an inference that Defendants’ alleged
imprudence injured them. They reason as follows: by mishandling
the specified funds, Defendants demonstrated that the management
of all funds was flawed and, inferentially, that all accounts were
injured. See Compl. ¶ 58, App’x 19 (asserting with regard to Plaintiffs’
alternative funds claim that “[a] reasonable inference is that if the
Committee’s plan-wide decision-making was flawed” as to certain
investment options, “that same flawed decision-making affected
every other choice made for the limited participant menu of 28
offerings”); see also Pls.’ Br. 11-14 (arguing same as to their other
claims). This conclusory assertion does not demonstrate that
Plaintiffs suffered “an invasion of [their] legally protected interest”
that affected them in a “personal and individual way,” as the
constitution requires. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
& n.1 (1992). We decline Plaintiffs’ invitation to speculate that there

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15 No. 24-2339-cv
were injuries to their own investment accounts based on the alleged
retention of more expensive share classes in three of twenty-eight
investment options, in which no Plaintiff chose to invest his or her
retirement assets, and their similar invitation to speculate about
harms that they did not plead with respect to their other claims.
B. Failure to Investigate the Availability of Lower-Cost,
Better Performing Alternative Funds
Next, the complaint asserted that the Committee imprudently
failed to investigate the availability of lower-cost, better performing
alternative funds. It identified two allegedly expensive and/or
underperforming investment options resulting in millions of dollars
of lost opportunity costs to Plan participants: the Loomis Sayles Small
Cap Value Fund and the Fidelity Freedom 2030 Fund. The existence
of lower-cost, better performing alternative funds, when combined
with other circumstantial evidence of imprudence, may support an
inference that a fiduciary breached its duty of prudence by failing to
monitor investments and remove imprudent options. See Pension
Benefit Guar. Corp. ex rel. St. Vincent Cath. Med. Ctrs. Ret. Plan v. Morgan
Stanley Inv. Mgmt. Inc., 712 F.3d 705, 721 (2d Cir. 2013). Plaintiffs’
statutory cause of action to assert an alternative fund-based
imprudence claim, however, did not confer Article III standing.
Again, Plaintiffs did not allege any personal injury arising from the
Committee’s allegedly imprudent retention of the two lower-
performing, higher-cost funds. No Plaintiff invested in either fund,
and the complaint did not allege in a non-conclusory fashion that any
of the funds in which Plaintiffs did invest suffered the same defects.

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16 No. 24-2339-cv
C. Failure to Monitor Indirect Recordkeeping Fees
The complaint further alleged that the Committee acted
imprudently by permitting the Plan’s recordkeeper, Fidelity
Management (“Fidelity”), to receive excessive compensation through
funds with a revenue sharing scheme that indirectly compensated
Fidelity. Allegations of excessive fees in relation to the services
rendered may raise an inference of imprudence, see Singh v. Deloitte
LLP, 123 F.4th 88, 93-95 (2d Cir. 2024), but, again, Plaintiffs’ statutory
standing did not establish that they also had Article III standing to
press their revenue sharing-based imprudence claim.
Plaintiffs did not plead that they were individually harmed by
Defendants’ failure to monitor the revenue sharing scheme. Plaintiffs
identified only one fund, the Victory Small Company Fund, as an
investment option for which a percentage of the plan’s assets were
improperly “diverted” to Fidelity. Compl. ¶¶ 92, 107, App’x 25, 29.
The complaint, however, did not allege that any Plaintiff invested in
that fund or, in a non-conclusory fashion, that any Plaintiff invested
in any other fund with revenue sharing. It thus did not allege any
injury to any Plaintiff arising from the failure to monitor the use of
revenue sharing.
D. Breach of the Duty of Loyalty
The complaint also alleged that the Committee breached its
duty of loyalty by including certain excessively costly funds with
revenue sharing that benefited the Committee at the expense of Plan
participants. Plaintiffs identified two higher-cost funds allegedly
selected for disloyal reasons: the Blackrock Total Return Fund and the
Dodge & Cox International Fund. Because Plaintiffs did not allege
that they invested in either fund, or in any other specific high-cost

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17 No. 24-2339-cv
fund with revenue sharing, Plaintiffs did not allege any injury to
themselves arising from the allegedly disloyally-selected investment
options.
E. Standing Generally
Finally, we address Plaintiffs’ erroneous contention that the
fact that they have standing as to some of their claims means that they
have standing to bring all of their claims. Standing is “not dispensed
in gross.” TransUnion, 594 U.S. at 431. To withstand a motion to
dismiss for lack of standing, Plaintiffs must demonstrate that one or
more of the individual plaintiffs can press each of their claims for each
form of relief sought. Id. They have not.
II. Plaintiffs’ Class Standing
Plaintiffs, who are suing on behalf of a proposed class, also did
not plausibly allege that they had “class standing” to proceed with
the claims for which they lack Article III standing. Again, to establish
“class standing,” a showing of individual injury is required.
We agree with Plaintiffs and the district court that members of
a defined contribution plan who chose certain investment options
may in certain circumstances bring claims on behalf of other
participants that chose entirely different investment options.
Plaintiffs, however, may only challenge, on behalf of the class,
Defendants’ “general practices which affect all participants,”
including Plaintiffs, Pls. Br. at 9 (emphasis added), or Defendants’
practices that are sufficiently similar to the practices causing, or
imminently threatening to cause, harm to Plaintiffs’ individual
retirement benefits. This is because our class standing test permits
Plaintiffs to assert claims on behalf of absent class members only if
they plausibly alleged “(1) that [they] personally ha[ve] suffered

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18 No. 24-2339-cv
some actual injury as a result of the [purportedly] illegal conduct of
the defendant, and (2) that such conduct implicates the same set of
concerns as the conduct alleged to have caused injury to other
members of the putative class by the same defendants.” NECA, 693
F.3d at 162 (ellipsis, internal quotation marks, and citations omitted).
For the reasons described above, Plaintiffs failed the first step of our
class standing test because they did not plausibly plead that they
suffered any individual injury in connection with the identified
claims.
Plaintiffs’ theory of standing is inconsonant with our class
standing test, which was designed to ensure that a named plaintiff
may “properly assert claims” on behalf of absent class members
because his litigation incentives “are sufficiently aligned with those
of the absent class members.” Ret. Bd., 775 F.3d at 161. Alignment
occurs when the proof that a named plaintiff develops for his
individual claims tends to prove the class claims. See id. at 161-62. We
cannot conclude that Plaintiffs’ claims implicate the “same set of
concerns” as absent class members’ claims because, without any
showing of an individual injury, we cannot find that Plaintiffs have
any proof of their own claims, let alone that proof supporting their
claims would tend to prove the class claims. See NECA, 693 F.3d at
162-63 (reasoning that even if a named plaintiff’s injury may “flow
from” the same source as other class members’ injuries, we cannot
conclude that the respective injuries “implicate[ ] the same set of
concerns” if they have “the potential to be very different” and might
well “turn on very different proof”).
Plaintiffs, as some district courts have done, would sidestep the
failure to plead any actual injury by extending our decision in Long
Island Head Start Child Development Services, Inc. v. Economic
Opportunity Commission of Nassau County (“Head Start”) to hold that a

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19 No. 24-2339-cv
defined contribution plan participant has standing to obtain
monetary relief when he alleges an injury to the Plan as a whole,
whether or not that participant has demonstrated an individual loss.
710 F.3d 57 (2d Cir. 2013). Head Start stated in a footnote that
participants in an employee welfare benefit plan who “asserted their
claims in a derivative capacity” had standing to “recover for injuries
to the Plan caused by the Administrators’ breach of their fiduciary
duties.” Id. at 67 n.5. Relying on that footnote, Plaintiffs argue that
they have standing to bring claims on behalf of the Plan because “the
fact that only some of the[ ] alleged losses manifested themselves in
[Plaintiffs’] individual accounts does not deprive [them] of standing
to seek redress on behalf of the Plan for the broader injuries the Plan
incurred.” Pls.’ Br. at 13. We think Plaintiffs read Head Start too
broadly.
Head Start is not precedent for the proposition that Plaintiffs
have Article III standing absent individualized financial harm. Its
facts preclude such a reading. The Head Start plaintiffs suffered a
financial injury: the defendants’ misconduct rendered the plan unable
to satisfy a judgment for the plaintiffs of more than $700,000. See 710
F.3d at 63.
Head Start also cannot stand for that proposition as a matter of
logic. Losses to defined contribution plan participants’ individual
accounts arising from an ERISA violation are losses to the plan,
because all assets in a plan, including contributions allocated to
individual accounts for bookkeeping purposes, are plan assets. See 29
U.S.C. § 1002(34); LaRue v. DeWolff, Boberg & Assocs., Inc., 552 U.S. 248,
262 (2008) (Thomas, J., concurring). But that logic does not always
work in reverse. Losses to plan assets arising from an ERISA violation
are not necessarily losses to an individual participant, vesting that
participant with a personal stake in a case or controversy. See Taveras,

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20 No. 24-2339-cv
612 F. App’x at 29 (rejecting plaintiff’s similar theory of standing
because “[i]t was possible that the [plan] lost value while [her]
individual account did not”).
Finally, ERISA plaintiffs cannot rectify a deficient showing of
an injury-in-fact by asserting that they have standing as
representatives of the plan. See Thole, 590 U.S. at 543 (holding that
plaintiffs lacked Article III standing to sue as representatives of a plan
because they had not alleged any concrete and particularized injuries
attributable to the alleged mismanagement). “[I]n order to claim the
interests of others, [Plaintiffs] themselves still must have suffered an
injury in fact, thus giving them a sufficiently concrete interest in the
outcome of the issue in dispute.” Id. at 543 (quotation marks omitted).
CONCLUSION
For the foregoing reasons and for the reasons set forth in the
summary order issued simultaneously with this opinion, we AFFIRM
IN PART and VACATE IN PART the judgment of the district court
and remand for further proceedings consistent with this opinion and
the summary order.

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