I Nre : Quest Diagnostics Erisa Litigation Lawanda Lasha House Johnson ,… v. Quest Diagnostics Inc .

UNITED S TATES C OURT OF APPEALS FOR THE THIRD CIRCUIT
No. 24-2866
I N RE : QUEST D IAGNOSTICS ERISA L ITIGATION
L AWANDA LASHA HOUSE JOHNSON , individually &
as representative of a class of similarly situated persons,
& on behalf of the Profit Sharing Plan of Quest Diagnostics,
Inc.; R EBECCA A. RICE; SHALAMAR CURTIS ,
Appellants
v.
Q UEST D IAGNOSTICS INC .; PROFIT SHARING PLAN OF Q UEST
D IAGNOSTICS I NC . BENEFITS A DMINISTRATION COMMITTEE ;
PROFIT SHARING PLAN OF QUEST D IAGNOSTICS I NC .
I NVESTMENT COMMITTEE
_____________________________
On Appeal from the U.S. District Court, D.N.J.
Judge Julien X. Neals, No. 2:20-cv-07936
Before: BIBAS , PORTER, and BOVE , Circuit Judges
Argued: Jan. 28, 2026; Filed: June 22, 2026
_____________________________
O PINION OF THE COURT
B IBAS , Circuit Judge. Sometimes, even a good process pro-
duces disappointing results. Quest Diagnostics offers its em-
ployees a 401(k) retirement plan. Plaintiffs, Quest employees

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who took part in its 401(k) Plan, claim that two of the Plan’s
investment options were so bad that offering them violated
Quest’s fiduciary duty under the Employee Retirement Income
Security Act (ERISA).
But at summary judgment, their theory falters. Plaintiffs
argue that when the Funds failed to meet performance bench-
marks, the Plan’s managers should have removed those Funds
from the available investment options. But ERISA is mostly
concerned with process, not outcomes. And the Quest fiduci-
aries followed a sound process, collaborating with an outside
investment advisor and meeting with the managers of the chal-
lenged Funds. Nor do fiduciaries need crystal balls. A fund’s
poor performance alone does not mandate drastic or sudden
action. So we will AFFIRM the District Court’s summary judg-
ment for Quest.
I. QUEST’S RETIREMENT FUNDS EARNED SUBPAR RETURNS
Quest Diagnostics provides clinical lab testing and related
services. Its employees may contribute to a 401(k) plan to save
for retirement. Those plans are defined-contribution retirement
plans: Each employee salts away part of his earnings. The
plan’s managers set a menu of investment options, from which
each employee can choose to invest some of his earnings.
Under ERISA, 401(k) plan administrators are fiduciaries of
plan participants. See 29 U.S.C. § 1104(a). To fulfill its fiduci-
ary duties, Quest’s Investment Committee met quarterly and
hired two investment advisors, Mercer Investment Consulting
and AON Investment Consulting. The Committee also pre-
pared Investment Policy Statements, which set out a frame-
work for judging investments’ performance and listed factors

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that Quest would consider in adding or dropping investment
options from its menu. “No single factor” was to be dispositive.
App. 5664.
Still, plaintiffs were dissatisfied with the Committee’s judg-
ment, pointing to the performance of their Quest 401(k)s. So
they filed this class-action lawsuit, accusing the Plan and its
managers of breaching their fiduciary duty to the Plan’s partic-
ipants. They challenged the managers’ decision to keep offer-
ing two investment options: the Fidelity Freedom Funds and
the Invesco Global Real Estate Fund. The Invesco Fund is an
actively managed mutual fund that primarily holds real estate
investment trusts and the like. The Freedom Funds are actively
managed target-date funds. (A target-date fund contains a
blend of assets that changes over time, becoming more con-
servative as investors approach and pass the fund’s target retire-
ment date. They can be “to-retirement,” meaning designed for
retirees to take out their funds at retirement, or “through-
retirement,” designed for retirees to stay invested after they
stop working.) Each Fund targets a particular retirement date
so that investors can choose what fits their goals.
According to plaintiffs, Quest breached its fiduciary duty
by keeping the Freedom Funds and Invesco Fund on the Plan’s
menu of options. They allege that the actively managed Free-
dom Funds performed worse than passively managed alterna-
tives, and that the Invesco Fund also underperformed compa-
rable funds. The Freedom Funds were also inherently riskier
and allegedly gave managers discretion to over-expose inves-
tors to stocks, causing them to underperform passive alterna-
tives during the 2020 stock-market dip. And the Committee’s
“imprudent choice” to keep offering the Freedom Funds, they

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allege, was “[e]xacerbat[ed]” by making them the default in-
vestment (for investors who did not choose another invest-
ment). App. 64 ¶ 30. Separately, plaintiffs claim that the Com-
mittee’s policy statements obligated it to remove both options
from the menu. They also challenged the Freedom Funds’ costs
below, though they no longer do so.
Plaintiffs’ complaint comprised three counts. Count One
claimed that, by continuing to offer the Freedom and Invesco
Funds, Quest violated its fiduciary duty under 29 U.S.C.
§ 1104(a). Count Two claimed that the same action violated the
fiduciaries’ duty to monitor the Plan adequately under
§§ 1105(a) and 1109(a). Alternatively, Count Three claimed
that even if Quest and its committees were not fiduciaries, they
were liable for knowing breach of trust.
The District Court denied Quest’s motion to dismiss but,
after discovery, granted it summary judgment. The court found
no breach of fiduciary duty because Quest had hired an invest-
ment advisor, actively monitored its investment menu, gotten
annual training on its fiduciary duties, and taken follow-up
steps about the Freedom and Invesco Funds. Because there was
no breach of fiduciary duty, the failure-to-monitor and knowing-
breach-of-trust counts likewise failed. We review that holding
de novo, viewing facts and drawing inferences in plaintiffs’
favor. Tundo v. County of Passaic, 923 F.3d 283, 286–87 (3d
Cir. 2019).
II. QUEST DID NOT BREACH ITS ERISA DUTIES
ERISA’s rules governing fiduciaries are “derived from the
common law of trusts.” Tibble v. Edison Int’l, 575 U.S. 523,
528 (2015) (internal quotation marks omitted). So when

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ERISA does not speak directly to an issue, courts borrow from
trust law. Id. at 528–29. Like trustees, ERISA fiduciaries
“ha[ve] a continuing duty to monitor … investments and remove
imprudent ones.” Id. at 529. Quest does not dispute that it and
its committees are ERISA fiduciaries, and it does not invoke
ERISA’s safe harbor, § 1104(c), to absolve them of fiduciary
duties. So the question is whether Quest fulfilled its fiduciary
duties under ERISA. It did.
ERISA sets out a general standard of prudence. An ERISA
fiduciary must “discharge his duties with respect to a plan …
with the care, skill, prudence, and diligence under the circum-
stances then prevailing that a prudent man acting in a like capac-
ity and familiar with such matters would use in the conduct of
an enterprise of a like character and with like aims.”
§ 1104(a)(1)(B). Department of Labor regulations further define
this duty, requiring “appropriate consideration [of] those facts
and circumstances that … the fiduciary knows or should know
are relevant to the particular investment,” including “the role
the investment … plays” in the plan’s overall menu. 29 C.F.R.
§ 2550.404a-1(b)(1)(i).
The two leading Supreme Court cases on imprudent con-
duct offer little guidance: Both were on motions to dismiss, both
alleged excessive fees, and both were remanded to let lower
courts reanalyze prudence anew. Tibble, 575 U.S. at 525–26,
531; Hughes v. Nw. Univ., 595 U.S. 170, 175, 177 (2022). Still,
Hughes did stress that our analysis must be “context specific”
and that “courts must give due regard to the range of reasonable
judgments a fiduciary may make based on her experience and
expertise.” 595 U.S. at 177 (internal quotation marks omitted).
So “categorical rule[s]” are disfavored. Id. at 173.

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Following that guidance, we have separated out two steps:
First, if the fiduciary’s process was prudent, that ends the inquiry
and plaintiffs lose. See Renfro v. Unisys Corp., 671 F.3d 314,
322 (3d Cir. 2011). Second, if the process was imprudent, we
ask whether a “hypothetical prudent investor” would have
“made the same decision anyway.” Id. (internal quotation
marks omitted). If he would, those plaintiffs lose. Id. But if he
would not, plaintiffs might recover.
Plaintiffs’ breach-of-duty claim fails at the first step because
Quest’s process was prudent. Their alternative theory of breach
(based on the policy statements) also fails. Passing references
to an expert opinion and Department of Labor guidance make
no difference. And the lack of a breach torpedoes the failure-
to-monitor claim as well as the knowing-breach-of-trust claim.
A. Quest’s process was prudent
Only one of our precedents has considered when summary
judgment is proper on a prudence claim for an ERISA fiduci-
ary. In that case, we asked whether the plan’s managers had
“conduct[ed] an independent investigation into the merits of a
particular investment.” In re Unisys Sav. Plan Litig., 74 F.3d
420, 435 (3d Cir. 1996). That meant the fiduciaries had “to
review the data a consultant gathers, to assess its significance
and to supplement it where necessary.” Id. We also rejected the
idea that managers may reflexively rely on financial advice
(like credit ratings), noting that reliance may well be imprudent
if it is neither “justified [nor] informed.” Id. at 436; see also
Restatement (Third) of Trusts § 93, cmt. c (2012) (treating
“[r]eliance on relevant professional advice” not as “a complete
defense” but as “significant evidence of the prudence of the

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trustee’s action”). Nor does merely meeting with an investment
advisor and asking some questions immunize a fiduciary from
liability. See Unisys, 74 F.3d at 436. Rather, the fiduciary’s
interaction with the advisor must be prudent considering “ the
circumstances … prevailing” when the fiduciary acts. 29
U.S.C. § 1104(a)(1)(B).
Though prudence is not reducible to a mechanical checklist,
three considerations that informed Unisys also help us rate
Quest’s performance: (1) Did the fiduciaries review their advi-
sors’ data and seek more if needed? (2) Did they analyze and
understand the bases for the opinions on which they relied?
And (3) did they otherwise use a process that was reasonable
under the circumstances? Here, Quest did all three.
1. Quest reviewed its advisor’s data and sought more
where needed. Quest’s Investment Committee met quarterly to
review the funds and got annual relevant training. And it hired
Mercer for investment advice, including about the Freedom
and Invesco Funds.
(a) Freedom Funds. Mercer drafted reports from 2014 to
2016 discussing the Freedom Funds’ performance. Though
Mercer noted concerns about the underlying funds, it “d[id] not
find strong evidence to replace” them. App. 7600.
Quest reflected critically on Mercer’s findings. In 2016, the
Committee commissioned Mercer to compare the Freedom
Funds with alternative target-date funds. Mercer viewed the
Freedom Funds positively based on their “[i]mpressive glide
path methodology” (meaning how Fidelity changed a fund’s
investment as it approached its target retirement date) and
higher stock allocation (starting in 2014). App. 7583. (Though

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a higher stock allocation can be risky, it can also yield more
gains during bull markets.) It also liked the Funds’ “tactical
component” that let them “take advantage of value opportuni-
ties between asset classes.” Id. It did not worry about the 2014
change in glide path because models showed that the change
gave the Funds “greater upside potential” yet made “[v]irtually
no difference in expected and worst case project[ions]” because
Quest’s participants “tend[ed] to leave their money … in the
target date funds after they retired.” App. 7600 (first two quo-
tations), 5895 (third one). This made sense. The Funds gave
participants a higher exposure to equities (more upside). And
the risks posed by the higher stock allocation—particularly the
risk that stock prices fell close to a participant’s retirement
date—were mitigated by the participants’ tendency not to draw
from their retirement savings right when they left the work-
force. In Mercer’s (and the Committee’s) view, that tendency
reduced the risk of the Funds’ more aggressive stock allocation
even as participants approached retirement.
The Committee did more due diligence than that. It met
with Fidelity (the Funds’ manager) to discuss the Freedom
Funds. It weighed the merits of active versus passive funds and
funds with different glide paths. And in 2019, it asked Mercer
to reanalyze target-date fund options. It did not mindlessly fol-
low Mercer, but did its own homework.
Even so, plaintiffs retort that Quest was too slow to react.
They stress that the Freedom Funds underperformed from 2013
through 2015 and changed their glide path in 2014. Their com-
plaint compared the Freedom Funds with passively managed
funds, which performed better during that same time. But as
two other circuit decisions—one of which was about the same

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Freedom Funds, litigated by the same plaintiffs’ firm—explained,
active and passive index funds are “apples and oranges.” Smith
v. CommonSpirit Health, 37 F.4th 1160, 1166 (6th Cir. 2022)
(Sutton, C.J.). The two types of funds are not materially iden-
tical investments and are not fungible; instead, they reflect two
different investment strategies. Id.; Meiners v. Wells Fargo &
Co., 898 F.3d 820, 823 & n.2 (8th Cir. 2018). Perhaps because
the argument failed elsewhere, plaintiffs abandoned that inapt
comparison to passive index funds at summary judgment and
on appeal. Now they argue that the Freedom Funds were
ranked in the bottom half of target-date funds from mid-2013
through mid-2014, so they were a bad choice in and of them-
selves.
But short-term underperformance does not prove long-term
imprudence. One cannot just “point[ ] to another investment
that has performed better in a five-year snapshot of the lifespan
of a fund that is supposed to grow for fifty years” to show that
fund was an unreasonable investment. Smith, 37 F.4th at 1166,
quoted with approval in Pizarro v. Home Depot, Inc., 111 F.4th
1165, 1180 (11th Cir. 2024). So long as a plan fiduciary ana-
lyzes that underperformance and evaluates the fund’s underly-
ing strategy, there may be sound reasons to hold on to the fund
during a period of weaker returns. The key question is whether
the fiduciary did that analysis. Even if an investment’s under-
performance alone could ever show that a fiduciary’s process
was imprudent, the underperformance would have to be severe
and sustained enough to warrant that conclusion.
Here, the Funds’ underperformance was hardly egregious.
As of mid-2014, six of the thirteen Freedom Funds matched or
outperformed their benchmarks over three years. By the end of

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2014, the Funds ranked at the median among target-date funds.
And from mid-2014 through late 2015, almost all of them out-
performed or matched their indices across at least one
timespan. So it was not obvious that they were bad invest-
ments. Minor underperformance, like that in 2013 and 2014,
does not demand immediate change, especially when the goal
is long-term growth. Plaintiffs are right that there were proba-
bly “other investment options in the same asset class as the
Freedom Funds that had better prospects.” Appellants’ Br. 36.
But again, pointing to other, stronger options is not enough—
ERISA fiduciaries need not pick the best investment to satisfy
their duty of prudence. See Smith, 37 F.4th at 1166. Requiring
fiduciaries to cut every below-average fund would create
chaos.
Rather, we must scrutinize the Committee’s process, because
applying the duty of prudence is “largely a process-based
inquiry.” Id.; accord Sweda v. Univ. of Pa., 923 F.3d 320, 329
(3d Cir. 2019), abrogated in part by Hughes, 595 U.S. at 170.
Plaintiffs hammer Quest’s failure to heed Mercer, but to no
avail. Even if the Committee did not fully discuss Mercer’s rec-
ommendation to consider switching to better target-date funds,
that imperfection would not be enough to show imprudence.
Plus, under Unisys, blindly following Mercer’s view might it-
self violate the Committee’s fiduciary duties. Fiduciaries may
not simply defer to advisors; they must analyze the bases of
advice themselves and look for credible supporting data.
Unisys, 74 F.3d at 435–36. Moreover, Mercer never recom-
mended removing the Funds; it just recommended investigat-
ing them, and Quest did that.

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Finally, plaintiffs dredge up an isolated email from a Fidel-
ity representative noting that “the committee does not typically
review my materials.” App. 5868. Though that is a bad fact for
Quest, it is just “a scintilla of evidence,” not enough to create
a genuine issue of material fact about prudence and defeat sum-
mary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
252 (1986). In short, the Committee did enough to review and
question the Freedom Funds data prepared by its advisor.
(b) Invesco Fund. Quest likewise did enough to scrutinize
the Invesco Fund. Because the Committee was troubled by its
underperformance, in 2017 it put that Fund on an internal
watch list. Then it met with Invesco’s representatives, reviewed
the Fund’s performance, and considered alternative real-estate
funds. After doing that factfinding, the Committee retained that
Fund. In 2019, the Committee reconsidered that Fund, review-
ing Mercer’s report on global real-estate-fund alternatives.
Based on Mercer’s research, it kept that Fund on the watch list
but did not remove it from the menu. In short, Quest’s inquiry
supports the prudence of its process.
2. Quest understood Mercer’s methodology and the bases
underlying its opinions. A second question from Unisys asks
whether Quest knew that Mercer’s recommendations were
“supported” by “credible data” when they took those recom-
mendations. 74 F.3d at 435–36. They were, and Quest knew it.
Unlike the imprudent fiduciary in Unisys, Quest could articu-
late why the opinions that it relied on made sense.
(a) Freedom Funds. Quest understood the Freedom Funds’
benefits and risks. The Committee knew that Fidelity had
changed their glide path and that they had underperformed. In

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its 2016 presentation, Mercer explained to Quest why it recom-
mended keeping the Funds despite those issues. Even though
it had misgivings about “the quality of the underlying funds,”
Mercer liked Fidelity’s “[i]mpressive resources” and glide path
methodology that continued to adjust allocations after the tar-
get retirement date. App. 7600. Quest knew that its participants
typically left their money in the Plan after they retired, reduc-
ing the risks associated with the Funds’ more aggressive stock
allocation. So Quest was fully aware of how and why Mercer
recommended keeping the Freedom Funds.
(b) Invesco Fund. There is no real evidence that Quest was
ignorant of Mercer’s methodology. The Committee understood
that the Invesco Fund was more conservative than some other
real-estate funds, giving the Plan “downside protection” but
also causing underperformance during bull markets. App.
6749. True, two committee members could not recall the meth-
odology’s specifics at their depositions. Cf. Unisys, 74 F.3d at
435 (requiring further consideration when the fiduciaries could
not remember whether it considered a critical issue). But those
depositions came six to eight years after the fact. That natural
forgetfulness is not enough to create a genuine issue of material
fact about whether the Committee collectively understood
Mercer’s methodology at the time.

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3. Quest otherwise followed generally accepted practices
of plan management. In addition to hiring and meeting regu-
larly with an investment advisor, the Committee repeatedly
revised the Plan’s menu. In 2014, it replaced one fund with a
less expensive one and put another on a watch list. In 2016, it
changed money-market funds. In 2017, as discussed, it put the
Invesco Fund on a watch list. And in 2018, it replaced several
mutual funds and put one on the watch list. Each of these actions
shows that the Committee was following accepted practices in
managing the Plan.
Resisting this conclusion, plaintiffs cite their expert (Dris-
coll)’s report. Although an expert report can provide evidence
of imprudence, this report fails. Driscoll argues (like plaintiffs
here) that the Funds had to be removed because they had un-
derperformed over the short term. Yet we have explained why
that is wrong on the law, and expert reports that rest on legally
flawed bases cannot defeat summary judgment. See Brooke
Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S.
209, 242–43 (1993). And Driscoll nowhere rebuts the main
reason the Committee kept the Invesco Fund: as “downside
protection.” App. 6749.
* * *
Quest’s process was sound. The Committee wisely hired an
outside advisor but remained actively involved, meeting with
fund sponsors and having Mercer review specific investments,
including the challenged Funds. The Committee did its duty,
following a prudent process.

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B. Quest properly considered the policy statements’
non-binding factors
Not so fast, plaintiffs say. ERISA fiduciaries must “dis-
charge [their] duties … in accordance with the documents and
instruments governing the plan insofar as such documents and
instruments are consistent with” ERISA. 29 U.S.C.
§ 1104(a)(1)(D). Plaintiffs claim that this provision makes the
Plan’s Investment Policy Statements binding.
That argument is novel in this circuit. We have never held
that violating a policy statement breaches a fiduciary duty.
Plaintiffs cite cases from two other circuits that supposedly did.
Appellants’ Br. 28 (citing Cal. Ironworkers Field Pension Tr. v.
Loomis Sayles & Co., 259 F.3d 1036, 1042 (9th Cir. 2001) &
Dardaganis v. Grace Cap. Inc., 889 F.2d 1237, 1241–42 (2d
Cir. 1989)). But the Ninth Circuit did not reach the question,
for it affirmed a district-court finding that the fiduciaries had
not violated the plan’s guidelines. 259 F.3d at 1043. And even
if the Second Circuit allows it, another circuit has expressly
doubted that these policy statements are binding. See Tussey v.
ABB, Inc., 746 F.3d 327, 334 n.5 (8th Cir. 2014). But we need
not decide the question. Even if Quest’s policy statements are
covered by § 1104(a)(1)(D), they gave the Committee discre-
tion to deviate from them, so Quest never violated them.
The policy statements were full of permissive language. For
instance, they provided that the Committee “may” place an invest-
ment on a watch list or remove it from the menu. App. 5667. And
though they listed “common factors that may cause the Invest-
ment Committee to lose confidence in a fund,” they also under-
scored that “[n]o single factor” is dispositive. App. 5664, 5667.

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Though we have no law directly on point, background prin-
ciples of trust law favor deferring to trustees’ judgment calls.
“Trust principles make a deferential standard of review appro-
priate when a[n ERISA] trustee exercises discretionary pow-
ers.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111
(1989). True, Firestone addressed a plan’s benefit-eligibility
determinations and ultimately found the policy documents
there did not grant discretion. See id. But the rationale just
quoted fits well here. Just as a “trustee is not under a duty to
make or retain investments that are made merely permissive by
trust provision,” so too an ERISA fiduciary need not treat a
policy statement’s permissive language as binding. Restate-
ment (Third) of Trusts § 91, cmt. f (2007).
“[W]here discretion is conferred upon the trustee with re-
spect to the exercise of a power,” as here, “its exercise is not
subject to control by the court except to prevent an abuse by
the trustee of his discretion.” Firestone, 489 U.S. at 111 (quot-
ing Restatement (Second) of Trusts § 187 (1959)). We see no
abuse of discretion here. The Committee considered the Free-
dom Funds’ increased stock allocation and through-retirement
glide path. It also considered the Freedom Funds’ underperfor-
mance and alternatives, investigating active versus passive index
funds as well as funds with various glide paths. It likewise con-
sidered alternatives to the Invesco Fund but had a good reason
to keep it on the menu because of the protection it offered dur-
ing bear markets. Quest did not abuse its discretion.
C. We need not address two other issues
Plaintiffs’ expert (Driscoll) argues that because the Free-
dom Funds are the default investments, the Plan should have

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paid closer attention to them. But plaintiffs’ opening brief does
not raise this as a standalone argument, mentioning it only in
passing while making other arguments. Plaintiffs also drop a
footnote discussing other Department of Labor guidance about
target-date funds. Yet an argument raised only in a footnote is
wasted ink. In re: Asbestos Prods. Liab. Litig. (No. VI), 873
F.3d 232, 237 (3d Cir. 2017). And even plaintiffs’ expert
acknowledges that this guidance does not bind plan managers.
D. Plaintiffs’ two other claims fail also
As the District Court noted, without a breach of the duty of
prudence, there can be no failure to monitor. See Mator v.
Wesco Distrib., Inc., 102 F.4th 172, 191 (3d Cir. 2024). And
Count Three is a fallback claim in case any of the defendants
is not an ERISA fiduciary. But no one disputes that Quest and
its committees are fiduciaries, plus this claim also fails because
there was no breach of the duty of prudence. So all three counts
stand or fall together. Because we will affirm the summary
judgment for Quest on Count One, we will also affirm it on
Counts Two and Three.
* * * * *
ERISA, like trust law, does not hold trustees liable for poor
performance alone. Courts review process first. A fiduciary is
prudent if it hires an advisor, critically examines its recommen-
dations and data, and follows up when needed. Quest did just
that. Even if the Funds kept on its menu were not the best, they
were not the worst either, and the Committee’s process was
sensible. Because ERISA mandates prudence, not perfection,
we will AFFIRM.

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Counsel for Appellants
Alec Berin [Argued]
James E. Miller
James C. Shah
MILLER SHAH
Counsel for Appellees
James D. Nelson
Jeremy P. Blumenfeld
Melissa D. Hill [Argued]
Gina F. McGuire
Tyler J. Hill
M ORGAN L EWIS & BOCKIUS

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