Bowden v. Cnf Inc. ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS A. PAULSEN, 
Plaintiff,
EDWARD L. FRAZEE; CHESTER
MADISON,
Plaintiffs,
LLOYD MICHAEL O’CONNELL, III,
individually and on behalf of a
class of all other persons similarly
situated,
Plaintiff,
and
No. 07-15142
ROBERT M. BOWDEN,
Plaintiff-Appellant,  D.C. No.
CV-03-03960-JW
ROBERT J. NEWELL,
Plaintiff-Appellant,
v.
CNF INC.; CNF SERVICE COMPANY
INC.; ADMINISTRATIVE
COMMITTEE OF THE CONSOLIDATED
FREIGHTWAYS CORPORATION PENSION
PLAN; STEPHEN D. RICHARDS; JAMES
R. TENER; ROBERT E. WRIGHTSON;
TOWERS, PERRIN, FORSTER &
CROSBY, INC.; PENSION BENEFIT
GUARANTY CORPORATION,
Defendants-Appellees.

3579
3580 BOWDEN v. CNF INC.
THOMAS A. PAULSEN; ROBERT M. 
BOWDEN; EDWARD L. FRAZEE;
ROBERT J. NEWELL; LLOYD MICHAEL
O’CONNELL, III, individually and
on behalf of a class of all other
persons similarly situated; CHESTER
MADISON,
Plaintiffs-Appellants,
No. 07-15389
v.
CNF INC.; CNF SERVICE COMPANY  D.C. No.
CV-03-03960-JW
INC.; ADMINISTRATIVE
OPINION
COMMITTEE OF THE CONSOLIDATED
FREIGHTWAYS CORPORATION PENSION
PLAN; STEPHEN D. RICHARDS; JAMES
R. TENER; ROBERT E. WRIGHTSON;
TOWERS, PERRIN, FORSTER &
CROSBY, INC.; PENSION BENEFIT
GUARANTY CORPORATION,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Argued and Submitted
August 11, 2008—San Francisco, California
Filed March 20, 2009
Before: Eugene E. Siler, Jr.*, M. Margaret McKeown, and
Consuelo M. Callahan, Circuit Judges.
*The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge
for the Sixth Circuit, sitting by designation.
BOWDEN v. CNF INC. 3581
Opinion by Judge Callahan
BOWDEN v. CNF INC. 3585
COUNSEL
Teresa S. Renaker, Lewis, Feinberg, Lee, Renaker & Jackson,
P.C., on behalf of plaintiffs-appellants Thomas A. Paulsen,
Robert M. Bowden, Edward L. Frazee, Chester Madison,
Robert Newell, and Lloyd Michael O’Connell III.
David L. Bacon, Thelen Reid Brown Raysman & Steiner
LLP, on behalf of defendants-appellees CNF Inc. and CNF
Service Co., Inc.
Gary S. Tell, O’Melveny & Meyers LLP, on behalf of
defendants-appellees Stephen D. Richards, James R. Tener,
Robert E. Wrightson, and the Administrative Committee of
the Consolidated Freightways Corporation Pension Plan.
Robert E. Mangels and Susan Allison, Jeffer, Mangels, Butler
& Marmano, LLP, on behalf of defendant-appellee Towers,
Perrin, Forster & Crosby, Inc.
Charles L. Finke, on behalf of defendant-appellee Pension
Benefit Guaranty Corporation.
3586 BOWDEN v. CNF INC.
OPINION
CALLAHAN, Circuit Judge:
Plaintiffs-Appellants are former employees (“the Employ-
ees”) of CNF Inc. (“CNF”), a supply chain management com-
pany that underwent a substantial reorganization starting in
1996.1 The Employees allege that as a result of CNF’s reorga-
nization, which included a “spinoff” of an underperforming
division of CNF in which the Employees worked, their retire-
ment benefits were substantially reduced. The spinoff created
a new company, Consolidated Freightways Corporation
(“CFC”). Concurrent with the division spinoff, CNF also spun
off part of the defined benefit pension plan in which the
Employees were participants, and the Employees became
members in a new plan sponsored by CFC. These plans are
governed by the Employee Retirement Income Security Act
of 1974 (“ERISA”). In connection with the plan spinoff, CNF
engaged the actuarial services of Towers, Perrin, Forster &
Crosby, Inc. (“Towers Perrin”) to value the benefit liabilities
to be transferred to the CFC-sponsored plan and associated
assets to be transferred to cover those liabilities. This was
done to certify compliance with the requirement of ERISA
§ 208, 29 U.S.C. § 1058, that each participant in the spun-off
plan would (if the plan then terminated) receive a benefit
immediately after the spinoff equal to or greater than the ben-
efit she would have been entitled to receive immediately
before the spinoff (if the plan had then terminated). Towers
Perrin also provided actuarial services to the new CFC-
sponsored plan and certified for several years after the spinoff
that the new plan was adequately funded.
After the spinoff, CFC declared bankruptcy and “distress
terminated” its pension plan, which was then determined to be
under-funded by roughly $216 million. The termination
1
The defined term “Employees” refers to all Plaintiffs-Appellants in this
case, which includes former employees and retirees.
BOWDEN v. CNF INC. 3587
resulted in a government corporation, the Pension Benefit
Guaranty Corporation (“PBGC”), becoming trustee over the
defunct plan. PBGC pays reduced benefits to participants of
distress-terminated plans from assets pooled from all termi-
nated plans.
The Employees sued CNF, CNF Service Co., the Adminis-
trative Committee of the CFC Pension Plan and its individual
members (“Committee Defendants”) for breaches of their
ERISA-based fiduciary duties in connection with the spinoff.2
The Employees also sued Towers Perrin for professional neg-
ligence under state law in valuing the plan liabilities to be
transferred at spinoff and in repeatedly certifying post-spinoff
that the new plan was adequately funded. Finally, the
Employees sued PBGC, as trustee, for not pursuing claims
against the other defendants in connection with the spinoff.
The district court dismissed all of the Employees’ claims on
various grounds, and this appeal followed.
We affirm the district court in part, reverse it in part, and
remand. We affirm the district court’s dismissal of the
Employees’ ERISA-based claims because the Employees lack
Article III standing to pursue several of those claims, and lack
standing under ERISA to pursue others. We also affirm the
dismissal of the claim against PBGC because PBGC’s non-
enforcement decisions are presumptively immune from judi-
cial review, and the Employees cannot rebut that presumption.
Finally, however, we hold that the Employees might be able
to state a claim for professional negligence against Towers
Perrin under California law and remand for further proceed-
ings on a more developed factual record.
2
For convenience, we refer to these defendants collectively as the “Fi-
duciary Defendants.”
3588 BOWDEN v. CNF INC.
I.
A.
CNF is a supply chain management company that provides
services including trucking and air freight transportation. CNF
operated two trucking units that, over time, began directly
competing with one another: the unionized CF MotorFreight
and non-unionized Con-Way Transportation Services, Inc.
(“Con-Way”). In 1994 and 1995, CF MotorFreight posted
operating income losses in the range of $34.4 to $46.6 million
dollars, while Con-Way posted operating income gains in the
range of $96.5 to $111.2 million dollars. In December 1996,
CNF spun off CF MotorFreight, and created a stand-alone,
unionized trucking company called Consolidated Freightways
Corporation, or CFC.
Before the spinoff, the Employees were in essence partici-
pants in a defined benefit plan sponsored by CNF called the
CNF Inc. Retirement Plan (“CNF Plan”). In connection with
the spinoff, CNF created the Consolidated Freightways Cor-
poration Pension Plan (“CFC Plan”). CNF and CFC entered
into an Employee Benefit Matters Agreement (“EBMA”),
which “provided that CNF employees who became CFC
employees as a result of the corporate spinoff also would
become participants in the CFC Plan and that the CNF Plan
would transfer to the CFC Plan all its obligations owing to
those participants.” Five of the six Employees who were
active CNF employees at the time of the spinoff were trans-
ferred to CFC. The EBMA also transferred the benefits obli-
gations of certain named retirees receiving pension benefits
under the CNF Plan, including plaintiff Frazee, to the CFC
Plan.
The EBMA provided that the CNF would transfer a portion
of the CNF Plan’s liabilities to the CFC Plan; these trans-
ferred portions would be the initial liabilities of the CFC Plan.
It also required CNF to transfer assets to the CFC Plan “equal
BOWDEN v. CNF INC. 3589
to the present value of the CNF Plan accrued benefit liability
for the transferred participants and retirees as of the date of
the plan spinoff.”3
Post-spinoff, the Committee Defendants administered the
CFC Plan. The Committee Defendants consist of the Admin-
istrative Committee of the CFC Plan and CFC’s officers who
served on the committee. The committee’s duties included
retention of an enrolled actuary for the CFC Plan and estab-
lishment of a funding policy for the CFC Plan in consultation
with the actuary.
B.
The Employees allege that Towers Perrin, a consulting
firm, provided actuarial services to the CNF Plan and the CFC
Plan for the benefit of plan participants starting in at least
November 1996.4 On November 1, 1996, CNF filed an IRS
Form 5310-A (Notice of Plan Merger or Consolidation, Spin-
off, or Transfer of Plan Assets or Liabilities), which it was
required to file 30 days before the spinoff. As part of the fil-
ing, “Towers Perrin certified that participants in and benefi-
ciaries of the new CFC Plan would be as well off on a
termination basis in the CFC Plan as in the CNF Plan.”5 In
3
The Employees allege that CNF Service Co., a subsidiary of CNF, pro-
vided plan administration services to the CFC Plan from 1996 to 1999 pur-
suant to a “Transition Services Agreement,” but have not alleged facts
regarding what services CNF Service Co. provided to the CFC Plan. The
record contains this agreement and indicates that CNF Service Co. pro-
vided, in part, “[r]etirement and pension plan administration” services, but
was expressly designated a non-fiduciary with only a ministerial role.
4
It is unclear from the pleadings and the record on appeal exactly which
entity retained Towers Perrin to render services to the CNF Plan and the
CFC Plan. Towers Perrin contends in its Answering Brief that it “rendered
services” to the plan sponsors, CNF and CFC.
5
Form 5310-A requires that the filing party attach an “actuarial state-
ment of valuation” showing compliance with Internal Revenue Code
§ 401(a)(12), which requires that “each participant in the plan would (if
3590 BOWDEN v. CNF INC.
January 1997, Towers Perrin filed an amended Form 5310-A
certifying the transfer based on more optimistic assumptions
about interest rates and expected retirement age, which would
result in a lower amount of assets being transferred at spinoff.
Towers Perrin also provided actuarial services to the CFC
Plan post-spinoff, “including valuing the Plan on an annual
basis.” The Employees allege “that in each year from 1997
through 2001, Towers Perrin determined that the CFC Plan
was fully funded and that CFC had no obligation to contribute
to the Plan.”6 This resulted in CFC making no contributions
to the CFC Plan in these years.
C.
In September 2002, CFC filed petitions for Chapter 11
bankruptcy. In January 2003, CFC informed the CFC Plan
participants that the plan administrator would terminate the
CFC plan in a “distress termination,” effective March 2003,
due to under-funding, and that the plan “would not have suffi-
cient funds to pay all vested accrued benefits to all partici-
pants and beneficiaries” upon termination.7 Specifically, CFC
the plan then terminated) receive a benefit immediately after the . . . trans-
fer which is equal to or greater than the benefit he would have been enti-
tled to receive immediately before the . . . transfer (if the plan had then
terminated).”
Towers Perrin based its actuarial statement of valuation on certain
assumptions, including (1) “future earnings of 6.9% per year,” and (2) “a
graded retirement rate used to calculate the expected retirement age of par-
ticipants transferred to the new CFC Plan.”
6
For years 1997-1999, “Towers Perrin based its conclusions that the
CFC Plan was fully funded on an expected retirement age of 64 and an
assumed rate of return for plan funding of 8.5%.” For years 2000-2001,
Towers Perrin based its adequate funding conclusions “on an expected
retirement age of 62 and an assumed rate of return for plan funding of
8.5%.”
7
A “distress” termination is a voluntary termination event that occurs
when the plan is not sufficiently funded to meet benefit liabilities as of the
date of termination and is thus not eligible for standard termination. 29
U.S.C. § 1341(c).
BOWDEN v. CNF INC. 3591
estimated that “approximately 8% of current retirees would
have their benefit amounts reduced under PBGC’s maximum
monthly benefit limits.”8
PBGC assumed trustee responsibility for the CFC Plan in
June 2003, and “estimated that the [CFC] Plan had approxi-
mately $228 million in assets to cover approximately $504
million in vested accrued benefits.”9 This represents an
approximate 55% shortfall in funding. Under the benefit pay-
ment limits set by PBGC, the Employees suffered dramatic
reductions in their pension benefits. PBGC, however, declined
to file a civil action against CNF, CNF Service Co., the Com-
mittee Defendants, or Towers Perrin.
D.
This case has a complicated and tortured procedural his-
tory, with several amended complaints and motions to dis-
miss. We recount the procedural history here to provide
adequate background for this appeal.
1.
In 2003, the Employees filed a Complaint alleging seven
8
Although the label “current retirees” is ambiguous given the two sets
of plan participants represented by the appellants here, it appears the par-
ties agree that the 8% figure represents the entire class of plan participants
and retirees that saw reduced benefits as a result of the distress termination
of the CFC Plan.
9
Created by ERISA, see 29 U.S.C. §§ 1301-1461, PBGC protects the
retirement incomes from American workers’ private-sector defined benefit
pension plans. PBGC was created “to encourage the continuation and
maintenance of private-sector defined benefit pension plans,” provide
timely and uninterrupted payment of pension benefits, and keep pension
insurance premiums at a minimum. PBGC pays monthly retirement bene-
fits, up to a guaranteed maximum, which is set by law and adjusted annu-
ally. See PBGC Mission Statement, available at http://www.pbgc.gov/
about/about.html#1 (last visited March 13, 2009).
3592 BOWDEN v. CNF INC.
claims for relief: five ERISA-based claims against CNF, CNF
Service Co., and the Committee Defendants (collectively, the
“Fiduciary Defendants”); and two claims for professional
negligence under California law against Towers Perrin. The
district court granted the Defendants’ motions to dismiss.
The district court granted CNF and CNF Service Co.’s
motion to dismiss the entire Complaint without prejudice as
to “all Defendants” on the ground that the Employees lacked
standing to pursue its claims because PBGC “has the sole
power to bring a lawsuit against the Defendants to recover
trust assets.”
It also analyzed claims one through five (the ERISA-based
claims) separately. The Employees’ first claim alleged that
the Fiduciary Defendants breached their fiduciary duties by
(a) failing to provide adequate information to enable Towers
Perrin to formulate reasonable assumptions for its actuarial
valuation; (b) failing to supervise, monitor, and investigate the
basis for Towers Perrin’s actuarial valuation; and (c) failing
to make certain that sufficient assets were transferred to sat-
isfy the accumulated benefit obligation purportedly trans-
ferred to the CFC Plan. The district court dismissed the
Employees’ first claim “with prejudice as to all Defendants”
based on its factual findings that there was no breach of fidu-
ciary duty because, consistent with ERISA § 208, 29 U.S.C.
§ 1058, the CFC Plan participants received a benefit after the
spinoff that was equal to or greater than the benefit they
would have received immediately before the spinoff, and the
CFC Plan “remained properly funded for the next five years
until 2002.”
The Employees’ second claim alleged that CNF breached
its fiduciary duty to all CNF Plan participants “by purporting
to transfer to the CFC Plan the CNF Plan’s obligations to
Plaintiffs and Class members when CNF knew that the CFC
Plan was unlikely to be able to fulfill those obligations due to
. . . inadequate funding at its inception and inability of its
BOWDEN v. CNF INC. 3593
sponsor, CFC, to survive as an independent corporation . . . .”
The district court dismissed the second claim with prejudice
as to CNF because the spinoff was a business decision not
undertaken by CNF in a fiduciary capacity. It also concluded
that “no Defendant violated § 208 of ERISA.”
The Employees’ third claim for relief alleged that the Fidu-
ciary Defendants breached their fiduciary duties to the CFC
Plan and its participants for the same reasons as alleged in the
Employees’ first claim for relief, except that the third claim
related to post-spinoff annual valuations. The district court
dismissed the third claim as to CNF and CNF Service Co.
with prejudice, concluding that neither was a fiduciary of the
CFC plan.10
The Employees’ fourth claim for relief alleged that the
Fiduciary Defendants breached their fiduciary duties by “(a)
failing to establish a funding policy as required by the terms
of the CFC Plan, (b) failing to establish a funding policy that
was reasonable, including requiring that reasonable actuarial
assumptions be used to value the CFC Plan, [and] (c) failing
to follow a reasonable funding policy . . . .” The district court
dismissed this claim with prejudice as to CNF and CNF Ser-
vice Co. on the grounds that: (1) neither had a fiduciary duty
to the CFC Plan to follow a funding policy, and (2) even if
such a duty existed, the court’s factual finding regarding com-
pliance with 29 U.S.C. § 1058 justified dismissal.11
The Employees’ fifth claim alleged that the Fiduciary
Defendants breached their fiduciary duties at the time of the
spinoff by failing to properly notify CNF Plan participants
that their rights under the CNF Plan had been terminated and
assumed by a new plan. The district court dismissed this
10
The district court expressly made no determination with respect to this
claim as alleged against the Committee Defendants.
11
As with the third claim, the district court made no determination with
respect to this claim as alleged against the Committee Defendants.
3594 BOWDEN v. CNF INC.
claim with prejudice “as to all Defendants” on the grounds
that: (1) the Employees failed to name a defendant that had
notification responsibilities; (2) the court’s factual finding
regarding compliance with 29 U.S.C. § 1058 resulted in no
cognizable injury; and (3) alternatively, the claim was barred
by the statute of limitations at ERISA § 413, 29 U.S.C.
§ 1113.
The Employees’ sixth and seventh claims for relief alleged
that Towers Perrin, acting as an actuary to the CNF Plan,
committed professional negligence in (1) valuing the CFC
Plan at the time of spinoff (sixth claim); and (2) in valuing the
CFC Plan in subsequent annual valuations after the spinoff
(seventh claim). The district court dismissed these claims with
prejudice, finding that the Employees were not Towers Per-
rin’s clients and holding that Towers Perrin, as an actuary to
the plan, owed no duty to the Employees under California
law, relying on Bily v. Arthur Young & Co., 834 P.2d 745(Cal. 1992).
2.
The Employees filed a First Amended Complaint that re-
alleged the third and fourth claims for relief under ERISA
against the Committee Defendants, and added the eighth and
ninth claims for professional negligence against Towers Per-
rin under “Oregon, Washington, and Any Other Applicable
State Law (Other Than California)[.]” The district court
granted the motions to dismiss filed by the Committee Defen-
dants and Towers Perrin. The district court dismissed the third
and fourth claims against the Committee Defendants without
prejudice, concluding that the Employees had not stated a
claim for relief under ERISA § 502(a)(2), 29 U.S.C.
§ 1132(a)(2), because they sought relief on behalf of them-
selves and purported class members totaling 8% of the entire
plan, and not on behalf of the entire plan. The court dismissed
the eighth and ninth claims without prejudice on the grounds
BOWDEN v. CNF INC. 3595
that the Employees failed to provide Towers Perrin with ade-
quate notice of which state law it allegedly violated.
3.
The Employees filed a Second Amended Complaint, which
amended the third and fourth claims to clarify the relief
sought under ERISA § 502(a)(2), 29 U.S.C. § 1132(a)(2), and
added alternative allegations and relief sought under ERISA
§ 502(a)(3), 29 U.S.C. § 1132(a)(3). They also amended the
eighth and ninth claims to allege professional negligence
against Towers Perrin under Oregon law, and added six new
claims for professional negligence against Towers Perrin
under the laws of Delaware, Connecticut, and Washington.
The district court dismissed nearly the entire Second
Amended Complaint. It dismissed the ERISA-based claims—
the amended third and fourth claims—with prejudice on the
grounds that: (1) the Employees’ claims under 29 U.S.C.
§ 1132(a)(2) still improperly sought recovery on their own
behalf and not on behalf of the plan as a whole; and (2) the
Employees’ new claims under 29 U.S.C. § 1132(a)(3) sought
money damages, which is not “appropriate equitable relief”
under the statute. In a separate order, the district court applied
California’s choice of law rules, concluded that “the Second
Amended Complaint arguably states a claim for professional
negligence under Oregon law,” and dismissed the Employees’
claims based on Delaware law, Connecticut law, and Wash-
ington law—claims ten through fifteen—with prejudice on
the grounds that those states had no interest in applying their
respective laws to this case. The Employees have not
appealed the dismissal of claims ten through fifteen.
4.
The district court ordered the Employees to file a Third
Amended Complaint for the sole purpose of incorporating its
prior holdings. The Employees complied with that order, and
3596 BOWDEN v. CNF INC.
Towers Perrin subsequently moved to dismiss the remaining
state law claims. The district court granted the motion in part,
holding that under California law: (1) the Oregon-resident
plaintiffs stated viable professional negligence claims to
which Oregon law would apply; but that (2) as a matter of
law, the California-resident plaintiffs could not state claims
under Oregon law because neither California nor Oregon had
an interest in applying Oregon law to them and, therefore,
California law as expressed in Bily applied. Subsequently, the
district court ordered the Employees to file another amended
complaint “joining Trustee PBGC as a party to the litigation”
because PBGC was an indispensable party.
5.
The Employees’ Fourth Amended Complaint added a six-
teenth claim for relief against PBGC, as trustee of the termi-
nated CFC Plan, for breach of fiduciary duty for failing to
bring claims against the other named defendants on behalf of
the CFC Plan. In response, the district court issued an “Order
to Show Cause Why PBGC Should Not Be Dismissed from
the Fourth Amended Complaint and Realigned as a Plaintiff.”
After a hearing, the district court dismissed the Fourth
Amended Complaint with prejudice as to PBGC, holding that
the breach of fiduciary duty claim was not actionable because
“PBGC’s determinations that (1) ERISA did not impose a
requirement that PBGC file suit following the failure of the
CFC Plan and (2) PBGC had no meritorious claims to assert
against Towers on behalf of the plan are entitled to judicial
deference.”
The district court also addressed, sua sponte, the question
of subject matter jurisdiction over the Employees’ state law
claims against Towers Perrin. The court dismissed the
Employees’ remaining state law claims against Towers Perrin,
concluding that (1) the Employees lacked constitutional
standing to sue because any recovery would inure to the bene-
fit of PBGC, thus negating the Employees’ redressable injury;
BOWDEN v. CNF INC. 3597
and (2) the Employees’ claims under Oregon law were pre-
empted because their “attempt to recover directly from Tow-
ers squarely conflicts with the ERISA requirement that any
recovery for a fiduciary breach inures to the benefit of the
pension plan rather than the individual participants.”
The district court entered a Final Judgment dismissing the
entire action. The Employees filed this timely appeal.
II.
We review “de novo the district court’s decision to grant a
motion to dismiss for failure to state a claim, as well as its
interpretation of ERISA.” Bassiri v. Xerox Corp., 463 F.3d
927, 929 (9th Cir. 2006). “Under the notice pleading standard
of the Federal Rules, plaintiffs are only required to give a
‘short and plain statement’ of their claims in the complaint.”
Diaz v. Int’l Longshore & Warehouse Union, Local 13, 474
F.3d 1202, 1205 (9th Cir. 2007) (citing Fed. R. Civ. P. 8(a)).
In assessing motions to dismiss, we accept “all allegations of
material fact in the complaint as true and construe them in the
light most favorable to the non-moving party.” Cedars-Sinai
Med. Ctr. v. Nat’l League of Postmasters of the U.S., 497 F.3d
972, 975 (9th Cir. 2007). We are not, however, required to
accept as true conclusory allegations that are contradicted by
documents referred to in the complaint, and we do not neces-
sarily assume the truth of legal conclusions merely because
they are cast in the form of factual allegations. Id.We review de novo whether a party has standing. Doran v.
7-Eleven, Inc., 524 F.3d 1034, 1039 n.3 (9th Cir. 2008).
The question of whether a duty of due care exists under
California negligence law is a question of law that we review
de novo. See Glenn K. Jackson Inc. v. Roe, 273 F.3d 1192,
1196-97 (9th Cir. 2001); Weiner v. Southcoast Childcare
Ctrs., Inc., 88 P.3d 517, 522 (Cal. 2004). Further, we review
de novo questions of choice of law, Huynh v. Chase Manhat-
3598 BOWDEN v. CNF INC.
tan Bank, 465 F.3d 992, 996 (9th Cir. 2006), and whether
ERISA preempts state law claims. See Cedars-Sinai Med.
Ctr., 497 F.3d at 975.
III.
The Employees’ claims for relief relevant to this appeal fall
into three general categories: (1) claims brought pursuant to
ERISA against the Fiduciary Defendants alleging breaches of
ERISA-imposed fiduciary duties (claims one through five);
(2) state law professional negligence claims against Towers
Perrin (claims six through nine); and (3) a claim for breach of
fiduciary duty under ERISA against PBGC (claim sixteen).
We address these claims in turn.
A.
Whether the Employees may pursue their ERISA-based
claims against the Fiduciary Defendants turns on issues of
standing. There are two aspects of standing that are relevant
here. First, the Employees must satisfy the minimum require-
ments of constitutional standing:
First, the plaintiff must have suffered an “injury in
fact”—an invasion of a legally protected interest
which is (a) concrete and particularized, and (b) “ac-
tual or imminent, not ‘conjectural’ or ‘hypotheti-
cal.’ ” Second, there must be a causal connection
between the injury and the conduct complained of—
the injury has to be “fairly . . . trace[able] to the chal-
lenged action of the defendant, and not . . . th[e]
result [of] the independent action of some third party
not before the court.” Third, it must be “likely,” as
opposed to merely “speculative,” that the injury will
be “redressed by a favorable decision.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)
(internal citations and footnotes omitted).
BOWDEN v. CNF INC. 3599
[1] Second, the Employees must satisfy a standing require-
ment imposed by ERISA. “ERISA provides for a federal
cause of action for civil claims aimed at enforcing the provi-
sions of an ERISA plan.” Reynolds Metals Co. v. Ellis, 202
F.3d 1246, 1247 (9th Cir. 2000) (citing 29 U.S.C.
§ 1132(e)(1)). To state such a claim, “a plaintiff must fall
within one of ERISA’s nine specific civil enforcement provi-
sions, each of which details who may bring suit and what
remedies are available.” Id. (citing 29 U.S.C. §§ 1132(a)(1)-
(9)). As discussed below, the Employees have invoked the
civil enforcement provisions stated in 29 U.S.C.
§§ 1132(a)(2) and (a)(3).
1.
[2] The Employees allege that their claims for breach of
ERISA fiduciary duties numbered one through five seek, in
part, relief pursuant to 29 U.S.C. § 1132(a)(2). Section
1132(a)(2) authorizes a participant or beneficiary to bring a
civil action for appropriate relief under 29 U.S.C. § 1109,
which in turn authorizes a claim for breach of fiduciary duties
by an ERISA fiduciary.12 The Employees’ claims one through
five seek monetary relief for alleged breaches of fiduciary
duties related to the spinoff and post-spinoff breaches.
Although the parties argue over whether the Employees
have sought a proper form of relief under section 1132(a)(2),
which goes to statutory standing under ERISA, we do not
12
Relevant to this appeal, 29 U.S.C. § 1109(a) states:
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 fiduciary, and shall be subject to such other equitable
or remedial relief as the court may deem appropriate, including
removal of such fiduciary.
3600 BOWDEN v. CNF INC.
reach that issue because we hold that the Employees have not
satisfied the requirements of constitutional standing. Specifi-
cally, we conclude that the Employees cannot demonstrate
that it is “likely,” as opposed to merely “speculative,” that any
injury to the CFC Plan participants will be “redressed by a
favorable decision” on their section 1132(a)(2) claims. See
Lujan, 504 U.S. at 560.
[3] We reason as follows. 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 beneficiary. Mass. Mut. Life Ins. Co. v.
Russell, 473 U.S. 134, 140-42 (1985); see also Horan v. Kai-
ser Steel Ret. Plan, 947 F.2d 1412, 1418 (9th Cir. 1991)
(“Any recovery for a violation of section 1109 and 1132(a)(2)
must be on behalf of the plan as a whole, rather than inuring
to individual beneficiaries.”). Therefore, if the Employees
were to recover “make-whole” monetary relief, that recovery
would inure to the benefit of the CFC Plan.13 Here, however,
the CFC Plan was distress terminated and is now under
PBGC’s control. Accordingly, any possible recovery on
behalf of the CFC Plan must go to PBGC because the CFC
Plan does not exist post-termination, or only exists as one of
many terminated plans pooled under the auspices of PBGC
and funded through PBGC’s collective funds. Due to the dis-
tress termination, PBGC pays reduced benefits to plan partici-
pants under the complex priority scheme stated in ERISA
§ 4044(a), 29 U.S.C. §1344(a), and the amount of funds avail-
able for distribution is determined as of the date of termina-
tion. See 29 C.F.R. §§ 4044.3(b), 4044.41(b). ERISA
§ 4044(c) also mandates that a post-termination increase or
13
The Employees have sought at least some relief on behalf of the entire
CFC Plan under 29 U.S.C. § 1109(a), and thus come within the enforce-
ment provision in 29 U.S.C. § 1132(a)(2). In connection with claims one,
three, and four, the Employees requested that the district court “order that
the Fiduciary Defendants, and each of them, make good to the CFC Plan
all losses to the CFC Plan resulting from [their] breaches.”
BOWDEN v. CNF INC. 3601
decrease in the CFC Plan’s assets be credited or suffered by
PBGC. 29 U.S.C. § 1344(c) (“Any increase or decrease in the
value of the assets of a single-employer plan occurring after
the date on which the plan is terminated shall be credited to,
or suffered by, the corporation.”). Because the Employees’
post-termination recovery would be paid to PBGC, and PBGC
is under no obligation to pay any of the Employees any
money above the statutory minimum, the Employees have no
stake in the recovery and cannot satisfy the redressability
requirement of constitutional standing.
Our reasoning is consistent with our decision in Glanton ex.
rel. ALCOA Prescription Drug Plan v. AdvancePCS Inc., 465
F.3d 1123 (9th Cir. 2006), cert. denied, 128 U.S. 126 (2007).
The plaintiffs in Glanton were prescription drug plan partici-
pants who sued a benefits management company pursuant to
ERISA § 502(a)(2), alleging that it breached its ERISA fidu-
ciary duties by secretly keeping the “spread” between what it
charged the plan for drugs and what it paid to drug suppliers.
Plaintiffs claimed that if their lawsuit were to succeed, the
plan’s drug costs would decrease and contributions and co-
payments might also decrease. In Glanton, we held that
although plaintiffs suffered a cognizable injury, it was not
redressable because nothing would force the plan sponsors to
reduce drug prices, contributions, or co-payments. 465 F.3d at
1125-27. We recognized that “ERISA plan beneficiaries may
bring suits on behalf of the plan in a representative capacity,”
but that there “is no redressability, and thus no standing,
where . . . any prospective benefits depend on an independent
actor who retains ‘broad and legitimate discretion the courts
cannot presume either to control or predict.’ ” Id. at 1125
(citations omitted). The Employees are analogous to the plain-
tiffs in Glanton because any recovery, which is payable to
PBGC, would not necessarily compel PBGC to increase the
benefits paid to the Employees, and we cannot presume to
compel such payments.
[4] Our approach recognizes PBGC’s role as an insurer of
guaranteed and non-guaranteed benefits. Upon distress termi-
3602 BOWDEN v. CNF INC.
nation, employers are liable to PBGC for any unfunded bene-
fit liabilities. 29 U.S.C. § 1362(b)(1)(A); United Steelworkers
of Am., AFL-CIO, CLC v. United Eng’g, Inc., 52 F.3d 1386,
1391 (6th Cir. 1995). After recovery from the employer,
PBGC must pay plan participants all guaranteed benefits and
a portion of non-guaranteed benefits based on a statutory for-
mula. See 29 U.S.C. §§ 1322, 1344; United Steelworkers, 52
F.3d at 1391. In a way, then, there is a trade-off in which
PBGC is permitted to receive the excess of non-guaranteed
benefits collected from an employer in return for guaranteeing
certain benefits to the plan participant. Despite the fact that
PBGC could pass along such an additional recovery to the
Employees, the ERISA statute does not compel PBGC to do
so, and we have no mechanism to compel PBGC to pass along
the recovery. Therefore, the independent actor barrier to
standing applies and the Employees have not demonstrated
that it is “likely,” and not merely “speculative,” that their
injury will be redressed by a favorable decision in the district
court.
We pause to consider the Fourth Circuit’s decision in Wil-
mington Shipping Co. v. New England Life Insurance Co.,
496 F.3d 326 (4th Cir. 2007). There, a plan participant in a
terminated plan sued the plan sponsor under 29 U.S.C.
§ 1132(a)(2) for breach of fiduciary duty seeking recovery of
losses to the plan as a result of the breach. Addressing the
issue of constitutional standing, and specifically redressa-
bility, the Fourth Circuit held that the plan participant had
standing to sue on behalf of the plan, notwithstanding that
PBGC served as trustee and that the recovered funds would
go into PBGC’s pooled coffers. Id. at 335-36. It reasoned that
PBGC occupies two roles: (1) guarantor of unpaid, guaran-
teed benefits; and (2) statutory trustee if appointed under
ERISA. See id. at 331-33. The court stated:
PBGC, acting as trustee, must hold plan assets in
trust for the benefit of plan participants and pay all
plan benefits, if possible, in accordance with the stat-
BOWDEN v. CNF INC. 3603
utory order of priorities. See 29 U.S.C.A.
§§ 1342(d)(1)(A)(ii), 1344. Only after the PBGC as
trustee has allocated plan assets and determined that
the plan has insufficient funds to meet its obligations
does the PBGC as guarantor “chip in” from ERISA
funds to cover the unpaid guaranteed benefits.
Id. at 336.14
[5] Under this rationale, PBGC, as trustee, would be obli-
gated to pay non-guaranteed CFC Plan benefits, if possible,
out of the plan assets and any potential recovery in this law-
suit. Not until those assets ran out would PBGC assume its
role as guarantor. However, the authorities cited by the Fourth
Circuit—29 U.S.C. §§ 1342(d)(1)(A)(ii) and 1344—do not
compel or direct such a payment. Moreover, Wilmington Ship-
ping’s requirement that PBGC pay all non-guaranteed bene-
fits to plan participants in a distress terminated plan would
contradict the superior power to pool and disperse assets
given to PBGC in 29 U.S.C. § 1342(a):
Notwithstanding any other provision of this subchap-
ter, the corporation is authorized to pool assets of
terminated plans for purposes of administration,
investment, payment of liabilities of all such termi-
nated plans, and such other purposes as it determines
to be appropriate in the administration of this sub-
chapter.
We decline to adopt the rule from Wilmington Shipping and
hold that PBGC’s role as an independent actor negates redres-
sability, and thus the Employees’ Article III standing to bring
claims pursuant to 29 U.S.C. §§ 1109(a) and 1132(a)(2).
14
We also note that PBGC may actually restore a plan after termination,
but this decision is within PBGC’s discretion. 29 U.S.C. § 1347.
3604 BOWDEN v. CNF INC.
2.
We next address those portions of the Employees’ claims
two through five that allege ERISA-based claims for breach
of fiduciary duties for which the Employees seek relief under
29 U.S.C. § 1132(a)(3). We hold that assuming the Employ-
ees have Article III standing to pursue these claims, they
nonetheless lack statutory standing to bring these claims
under section 1132(a)(3) because they do not seek “appropri-
ate equitable relief” within the meaning of that section.
[6] Relevant to this appeal, section 502(a)(3)(B) of ERISA
permits a participant or beneficiary to bring a civil action “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)(B). Thus,
the complaining party must seek “equitable, rather than legal,
relief.” Reynolds Metals Co., 202 F.3d at 1247. In assessing
whether a claim for “equitable” relief has been properly
brought under ERISA, we look to the “substance of the rem-
edy sought . . . rather than the label placed on that remedy.”
Mathews v. Chevron Corp., 362 F.3d 1172, 1185 (9th Cir.
2004) (citation and internal quotation marks omitted). Further,
“[t]o establish an action for equitable relief under . . . 29
U.S.C. § 1132(a)(3), the defendant must be an ERISA fidu-
ciary acting in its fiduciary capacity and must violate ERISA-
imposed fiduciary obligations.” Id. at 1178 (citations and
internal quotation marks omitted). Unlike 29 U.S.C.
§ 1132(a)(2), which requires that relief sought must be on
behalf of the entire plan, the Supreme Court has held that a
participant or beneficiary has standing pursuant to section
1132(a)(3) to seek individual recovery in the form of “appro-
priate equitable relief.” See Varity Corp. v. Howe, 516 U.S.
489, 509-10 (1996).
The Employees’ complaint requests several forms of relief
in connection with claims two through five. The Employees’
opening brief on appeal, however, asserts that only the fol-
BOWDEN v. CNF INC. 3605
lowing forms of relief are “equitable,” and thus properly
sought under section 1132(a)(3): (1) reinstatement into the
CNF Plan based on the second claim, alleged only against
CNF; and (2) an order on the third and fourth claims that “the
Fiduciary Defendants . . . make good to the CFC Plan all
losses to the CFC Plan” resulting from breaches of fiduciary
duties, i.e., “make-whole monetary relief.” Accordingly, we
address only these forms of purported equitable relief.15
Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We
review only issues which are argued specifically and dis-
tinctly in a party’s opening brief.”).
[7] The Employees’ second claim for relief, which seeks,
in part, reinstatement into the CNF Plan, does not seek relief
provided in 29 U.S.C. § 1132(a)(3) because the relief sought
is not related to a breach of a fiduciary duty by CNF. Rein-
statement into a plan has been recognized as appropriate equi-
table relief under section 1132(a)(3). See generally Varity
Corp., 516 U.S. 489 (holding that section 1132(a)(3) supports
a cause of action for individual beneficiaries who allege that
a plan fiduciary made material misrepresentations about their
benefits.); Mathews, 362 F.3d at 1186 (holding that “instate-
ment” into a plan is an equitable remedy where it would
return the plaintiffs to the position they would have occupied
absent a plan fiduciary’s misrepresentation that induced them
to opt out of an enhanced benefit scheme); Reynolds Metals
Co., 202 F.3d at 1249 (recognizing reinstatement as tradition-
ally equitable relief). However, in order to be eligible for rein-
statement into the CNF Plan, which would return the
Employees to the position they occupied before the spinoff,
the Employees would have to establish that CNF breached a
fiduciary duty in deciding to conduct the plan spinoff. The
Employees cannot do this as they acknowledge that a decision
to spin a plan off, as opposed to implementing the spinoff, is
15
The Employees’ complaint also seeks relief under section 1132(a)(3)
for their fifth claim related to ERISA notification rights, but the Employ-
ees have abandoned this claim by not arguing its merits on appeal.
3606 BOWDEN v. CNF INC.
not a fiduciary act. See Lockheed Corp. v. Spink, 517 U.S.
882, 890-91 (1996) (holding that when plan administrators
adopt, modify, or terminate pension benefit plans, they are not
acting as fiduciaries); Systems Council EM-3 v. AT&T Corp.,
159 F.3d 1376, 1380 (D.C. Cir. 1998) (holding that decision
to spin off division of company was not a fiduciary act); Wal-
ler v. Blue Cross of Cal., 32 F.3d 1337, 1342 (9th Cir. 1994)
(stating that the decision to terminate a plan, as opposed to
implementing that decision, is not a fiduciary act). Therefore,
the spinoff decision does not give rise to a breach of fiduciary
duty that supports reinstatement into the CNF Plan.
[8] We also conclude that the Employees’ third and fourth
claims, which seek “make-whole monetary relief” under 29
U.S.C. § 1132(a)(3), are foreclosed by Supreme Court prece-
dent. The Court has held that the term “equitable relief” in
section 1132(a)(3) “must refer to ‘those categories of relief
that were typically available in equity . . . .’ ” Great-West Life
& Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210 (2002)
(quoting Mertens v. Hewitt Assocs., 508 U.S. 248, 256
(1993)). In Mertens, the Court held that plaintiffs who sued
their pension plan’s actuary for breach of its fiduciary duties
could not seek relief pursuant to section 1132(a)(3) because
their claims sought “monetary relief for all losses their plan
sustained as a result of the alleged breach of fiduciary duties,”
which is the “classic form of legal relief.” 508 U.S. at 255(stating that “[a]lthough they often dance around the word,
what petitioners in fact seek is nothing more than compensa-
tory damages”). Similarly, here, the Employees request that
the Fiduciary Defendants make them “whole in the amounts
by which their pension benefits have been reduced as a result
of these breaches.” As in Mertens, the Employees’ claim for
“make-whole monetary relief” seeks money damages, which
fall outside of the remedy provisions of 29 U.S.C. § 1132(a)(3).16
16
Although the Supreme Court’s grant of certiorari in LaRue v. DeWolff,
Boberg & Associates, Inc. encompassed the question of whether “make-
whole relief” sought in relation to a defined contribution plan is “equita-
ble” within the meaning of 29 U.S.C. § 1132(a)(3), the Court’s opinion did
not address the merits of that question. See 128 S. Ct. 1020, 1023 (2008).
BOWDEN v. CNF INC. 3607
***
[9] We conclude that the district court correctly dismissed
the Employees’ ERISA-based claims. The Employees have
not satisfied the requirements for Article III standing with
respect to their claims brought pursuant to 29 U.S.C.
§ 1132(a)(2). Further, the Employees do not seek appropriate
equitable relief for fiduciary breaches within the meaning of
29 U.S.C. § 1132(a)(3).
B.
We next evaluate whether the Employees have stated a
cognizable claim for professional negligence against Towers
Perrin based on Towers Perrin’s valuation work at the time of
the spinoff and in subsequent years. The Employees’ sixth
and seventh claims allege that Towers Perrin owed them a
duty of ordinary care under California law, and that Towers
Perrin breached that duty.
1.
Under California law, “[t]he threshold element of a cause
of action for negligence is the existence of a duty to use due
care toward the interest of another that enjoys legal protection
against unintentional invasion.” Bily, 834 P.2d at 760-61.
Whether a duty of ordinary care exists is a question of law.
Glenn K. Jackson Inc., 273 F.3d at 1196-97.
[10] California law sharply limits the duty of ordinary care
imposed on a supplier of information to non-clients. In Bily,
the California Supreme Court considered “whether and to
what extent an accountant’s duty of care in the preparation of
an independent audit of a client’s financial statements extends
to persons other than the client.” 834 P.2d at 746. The court
held that “an auditor owes no general duty of care regarding
the conduct of an audit to persons other than the client.”17 Id.17
The Bily court did hold, however, that an auditor may be held liable
for negligent misrepresentations in an audit report to those persons who
3608 BOWDEN v. CNF INC.
at 746; see id. at 768 (“[W]e hold that an auditor’s liability for
general negligence in the conduct of an audit of its client
financial statements is confined to the client, i.e., the person
who contracts for or engages the audit services. Other persons
may not recover on a pure negligence theory.”). In declining
“to permit all merely foreseeable third party users of audit
reports to sue the auditor on a theory of professional negli-
gence,” the Bily court premised its holding on three central
policy concerns:
(1) Given the secondary “watchdog” role of the audi-
tor, the complexity of the professional opinions ren-
dered in audit reports, and the difficult and
potentially tenuous causal relationships between
audit reports and economic losses from investment
and credit decisions, the auditor exposed to negli-
gence claims from all foreseeable third parties faces
potential liability far out of proportion to its fault; (2)
the generally more sophisticated class of plaintiffs in
auditor liability cases . . . permits the effective use
of contract rather than tort liability to control and
adjust the relevant risks through “private ordering”;
and (3) the asserted advantages of more accurate
auditing and more efficient loss spreading relied
upon by those who advocate a pure foreseeability
approach are unlikely to occur; indeed, dislocations
of resources, including increased expense and
decreased availability of auditing services in some
sectors of the economy, are more probable conse-
quences of expanded liability.
Id. at 761.
act in reliance on those misrepresentations. See 834 P.2d at 746, 768-73.
This holding from Bily is not at issue here because the Employees have
not alleged that Towers Perrin is liable for negligent misrepresentation.
BOWDEN v. CNF INC. 3609
[11] We noted in Glenn K. Jackson Inc. that “California
and federal courts have applied the Bily rationale to other sup-
pliers and evaluators of information.” 273 F.3d at 1199 (hold-
ing that accounting firm hired by client to audit law firm’s
bills to client owed no duty to the law firm).18 We have con-
cluded that the limitations imposed by Bily “apply widely to
those who supply or evaluate information to limit their liabil-
ity to even foreseeable third parties who have an interest in
their work product.” Id. at 1199.
We hold that Towers Perrin does not owe a general duty to
the non-client Employees in the context of this case because
two of the policy concerns at issue in Bily weigh against
imposing a duty of ordinary care. First, imposing such a duty
could lead to potential liability for an actuary that is far out
of proportion with its fault. The actuarial work performed at
the time of a spinoff and afterward involves the derivation of
funding conclusions based on assumptions about the expected
retirement age of plan participants and projected rates of
return for plan funding. As was the case with the auditors in
Bily, the work of an actuary at issue here involves a “profes-
sional opinion based on numerous and complex factors” and
cannot be “checked against uniform standards of indisputable
accuracy.” 843 P.2d at 763 (stating that “an audit report is not
18
See also Quelimane Co. v. Stewart Title Guar. Co., 960 P.2d 513,
532-33 (Cal. 1998) (holding that title insurer owed no duty of ordinary
care to non-clients, commenting that “[i]n the business arena it would be
unprecedented to impose a duty on one actor to operate its business in a
manner that would ensure the financial success of transactions between
third parties”); Cabanas v. Gloodt Assoc., 942 F. Supp. 1295, 1308-10
(E.D.Cal. 1996) (holding that appraiser owed no duty of ordinary care to
third party related to investigation, drafting, and distribution of appraisal),
affirmed at 141 F.3d 1174 (9th Cir. Mar. 3, 1998) (unpublished); Sanchez
v. Lindsey Morden Claims Servs., Inc., 84 Cal. Rptr. 2d 799, 801-03 (Ct.
App. 1999) (holding that insurer-retained claims adjuster owed no duty to
insured); cf. Soderberg v. McKinney, 52 Cal. Rptr. 2d 635, 640 (Ct. App.
1996) (stating, in the context of negligent misrepresentation claim, that
“[w]hile Bily involved the liability of accountants (or auditors), we see no
reason why its discussion should be limited to that group of profession-
als”).
3610 BOWDEN v. CNF INC.
a simple statement of verifiable fact . . . , like the weight of
the load of beans”).
Second, the probability of increased expense and decreased
availability of actuarial services outweighs the possible
advantages of imposing a negligence duty on an actuary in
connection with a spinoff, such as more accurate valuations
and more efficient loss spreading. See id. at 765-66. The
imposition of a duty of ordinary care—with resulting potential
liability exposure in the hundreds of millions of dollars—
would have the probable effect of decreasing the availability
of actuarial services; increasing the cost of actuarial services
generally; increasing clients’ indemnification obligations to
retained actuaries; and increasing insurance costs for both
actuaries and clients. These factors weigh against the proba-
bility that increased liability exposure would increase the
accuracy of actuarial services, especially when such services
do not involve precise, verifiable science.
[12] For these reasons, we decline to impose a duty of ordi-
nary care on actuaries in connection with spinoff-related valu-
ation work absent a California statute or supporting case law.
Finding such a duty as a general matter would be inconsistent
with the decisions of the California Supreme Court interpret-
ing California law.
[13] However, our inquiry into whether Towers Perrin
owed a duty of ordinary care to the Employees does not end
here. Despite the Bily court’s holding that an auditor’s liabil-
ity for general negligence is confined to the client, it recog-
nized the possibility that intended third party beneficiaries
could recover for an auditor’s professional negligence:
In theory, there is an additional class of persons who
may be the practical and legal equivalent of “cli-
ents.” It is possible the audit engagement contract
might expressly identify a particular third party or
parties so as to make them express third party bene-
BOWDEN v. CNF INC. 3611
ficiaries of the contract. Third party beneficiaries
may under appropriate circumstances possess the
rights of parties to the contract.
Id. at 767 & n.16 (citations omitted); see also Glenn K. Jack-
son Inc., 273 F.3d at 1199-1200 (recognizing the third party
beneficiary “exception” to the Bily rule); Mariani v. Price
Waterhouse, 82 Cal. Rptr. 2d 671, 677 (Ct. App. 1999)
(same). The Bily court stated that it was not presented with a
third party beneficiary issue because “[n]o third party is iden-
tified in the engagement contract.” Bily, 834 P.2d at 767 n.16.
Although Bily might be read to require that a third party bene-
ficiary’s name appear in the engagement agreement in order
to give rise to a duty, id., California decisions pre-dating Bily
indicate that “[i]t is not necessary that an express beneficiary
be specifically identified in the relevant contract; he or she
may enforce it if he or she is a member of a class for whose
benefit the contract was created.” Outdoor Servs., Inc. v.
Pabagold, Inc., 230 Cal. Rptr. 73, 76 (Ct. App. 1986); see
also Mariani, 82 Cal. Rptr. 2d at 679 (noting that despite
Bily’s use of the term “express” third party beneficiaries, “it
does not appear Bily meant to create a new category of specif-
ically designated beneficiaries, whether for tort or breach of
contract purposes”).
We reverse the district court’s dismissal of claims six and
seven based on the intended third party beneficiary exception
to the general rule announced in Bily. The Employees have
alleged that Towers Perrin “provided actuarial services to the
CNF Plan and the CFC Plan for the benefit of Plan partici-
pants, including Plaintiffs, from at least November 1996 for-
ward . . . .” They have also alleged that they were “intended
beneficiaries of the professional services rendered” by Towers
Perrin. Towers Perrin filed its motion to dismiss before the
parties conducted discovery, and Towers Perrin’s engagement
agreement is not in the record. In the present procedural pos-
ture, we take the Employees’ allegations as true. Cedars-Sinai
Med. Ctr., 497 F.3d at 975. Given Bily’s recognition that
3612 BOWDEN v. CNF INC.
intended third party beneficiaries might be able to recover
from an auditor, combined with the Employees’ allegations
regarding the benefits Towers Perrin purportedly intended to
provide to the plan beneficiaries at the time of the spinoff and
post-spinoff, we conclude that the Employees’ sixth and sev-
enth claims potentially state a claim upon which relief might
be granted.19 The Employees might be unable to ultimately
prevail on a third party beneficiary theory, but we cannot con-
clude that they have not brought themselves within the third
party beneficiary exception insofar as a motion to dismiss is
concerned.
[14] We hold that Towers Perrin does not generally owe a
duty of ordinary care to the Employees, who are not Towers
Perrin’s clients. However, we hold that Towers Perrin may
owe a duty to the Employees if they can be considered
intended third party beneficiaries of Towers Perrin’s service
agreement. Because the record on appeal is insufficient to
allow us to evaluate whether the Employees are indeed
intended third party beneficiaries, we remand this question to
the district court so that it may make the determination on a
more complete factual record.
2.
Because we disagree with the Employees’ broad reading of
Towers Perrin’s tort duties under California law, we must also
19
Towers Perrin argues that the Employees’ claims fail in part because
“there are no allegations here to demonstrate that any agreement between
Towers Perrin and the pension plan was expressly intended to benefit
Plaintiffs.” This argument is unpersuasive given the procedural posture of
this case. No evidence in the record suggests that the Employees had
access to the Towers Perrin engagement agreement or related documents,
and it is the very purpose of discovery to establish the contents of that
agreement. Moreover, as noted, if the context of the agreement clearly
reveals that the participants were intended third party beneficiaries, the
fact that they are not specifically mentioned in the agreement might not
be dispositive.
BOWDEN v. CNF INC. 3613
consider the Employees’ eighth and ninth claims for relief,
which allege that Towers Perrin also breached its duty of ordi-
nary care under Oregon law. We need not address the merits
of these claims because, applying California’s choice of law
principles, we hold that California law applies to the Employ-
ees’ negligence claims against Towers Perrin.
In a federal question action that involves supplemental
jurisdiction over state law claims, we apply the choice of law
rules of the forum state—here, California. See Patton v. Cox,
276 F.3d 493, 495 (9th Cir. 2002) (“When a federal court sits
in diversity, it must look to the forum state’s choice of law
rules to determine the controlling substantive law.”); Bass v.
First Pac. Networks, Inc., 219 F.3d 1052, 1055 n.2 (9th Cir.
2000) (“[A] federal court exercising supplemental jurisdiction
over state law claims is bound to apply the law of the forum
state to the same extent as if it were exercising its diversity
jurisdiction.”).
Under California’s choice of law rules, California will
apply its own rule of decision unless a party invokes the law
of a foreign state that “will further the interest of the foreign
state and therefore that it is an appropriate one for the forum
to apply to the case before it.” Hurtado v. Superior Court, 522
P.2d 666, 670 (Cal. 1974). California courts employ a “gov-
ernmental interest analysis” to assess whether California law
or non-forum law should apply:
To determine the correct choice of law, we apply a
three-step analysis. First, we determine whether the
two concerned states have different laws. Second,
we consider whether each state has an interest in
having its law applied to this case. Finally, if the
laws are different and each state has an interest in
having its own law applied, we apply the law of the
state whose interests would be more impaired if its
policy were subordinated to the policy of the other
state.
3614 BOWDEN v. CNF INC.
Havlicek v. Coast-to-Coast Analytical Servs., 46 Cal. Rptr. 2d
696, 699 (Ct. App. 1995) (citations and internal quotations
omitted).
Here, the choice of law inquiry ends at step one of the gov-
ernmental interest analysis because California law and Ore-
gon law do not differ. As stated above, California law
generally states that the duty of ordinary care owed by a sup-
plier of information (e.g., accountant, auditor, etc.) does not
run to non-clients. See Bily, 834 P.2d at 767. However, Cali-
fornia law recognizes an exception to the general rule, that
such a supplier of information does owe a duty to intended
third party beneficiaries. See id. at 767 n.16.
Similarly, under Oregon law, “a negligence claim for the
recovery of economic losses caused by another must be predi-
cated on some duty of the negligent actor to the injured party
beyond the common law duty to exercise reasonable care to
prevent foreseeable harm.” Onita Pac. Corp. v. Trs. of Bron-
son, 843 P.2d 890, 896 (Or. 1992) (footnote omitted). The
Oregon Supreme Court has held, however, that in a negli-
gence action to recover economic losses, “nongratuitous sup-
pliers of information owe a duty to their clients or employers
or to intended third-party beneficiaries of their contractual,
professional, or employment relationship to exercise reason-
able care to avoid misrepresenting facts.” Id. at 899.
[15] Based on the foregoing, we conclude that there is no
conflict between California law and Oregon law regarding an
information supplier’s duty to third-party, non-client users of
information. Both states’ laws dictate that, as a general matter,
an ordinary negligence duty does not run from a provider of
information to a non-client. Both states’ laws, however, make
an exception for intended third-party beneficiaries. Because
the Employees have not demonstrated a conflict between the
states’ respective laws, we hold that the law of the forum—
California law—applies to the Employees’ negligence claims
against Towers Perrin. Accordingly, we affirm the district
BOWDEN v. CNF INC. 3615
court’s dismissal of the Employees’ eighth and ninth claims
for relief.
3.
We next consider Towers Perrin’s assertion that even if
California law provides for a claim by intended third party
beneficiaries, it is preempted by ERISA. There are two
strands of ERISA preemption: (1) “express” preemption
under ERISA § 514(a), 29 U.S.C. § 1144(a); and (2) preemp-
tion due to a “conflict” with ERISA’s exclusive remedial
scheme set forth in 29 U.S.C. § 1132(a), notwithstanding the
lack of express preemption. Cleghorn v. Blue Shield of Cal.,
408 F.3d 1222, 1225 (9th Cir. 2005). We address both types
of preemption and conclude that ERISA does not preempt the
Employees’ state law claims.
a.
[16] ERISA’s preemption provision, 29 U.S.C. § 1144(a),
expressly preempts “any and all State laws insofar as they
may now or hereafter relate to any employee benefit plan
. . . .” See also Cleghorn, 408 F.3d at 1225. The Supreme
Court has criticized the “unhelpful text” of this ERISA pre-
emption provision, Cal. Div. of Labor Standards Enforcement
v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 324 (1997)
(“Dillingham”), and we have similarly remarked that the “re-
late to” language has been the source of great confusion and
multiple and slightly differing analyses. Abraham v. Norcal
Waste Sys., Inc., 265 F.3d 811, 819 (9th Cir. 2001), cert
denied, 535 U.S. 1015 (2002) and 537 U.S. 1071 (2002).20 In
any event, the Supreme Court has instructed that a law relates
20
Although the phrase “relate to” has been construed broadly, the Court
has narrowed the applicability of 29 U.S.C. § 1144(a) in more recent
years. Abraham, 265 F.3d at 820 (citing N.Y. State Conference of Blue
Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645 (1995)
(“Travelers”)).
3616 BOWDEN v. CNF INC.
to an employee benefit plan if it has either a “connection
with” or “reference to” such a plan. Ingersoll-Rand Co. v.
McClendon, 498 U.S. 133, 139 (1990). This is a two-part
inquiry. Dillingham, 519 U.S. at 324.
[17] We first address the “reference to” preemption inquiry.
“To determine whether a law has a forbidden ‘reference to’
ERISA plans, we ask whether (1) the law ‘acts immediately
and exclusively upon ERISA plans,’ or (2) ‘the existence of
ERISA plans is essential to the law’s operation.’ ” Golden
Gate Rest. Ass’n v. City & County of San Francisco, 546 F.3d
639, 657 (9th Cir. 2008) (quoting Dillingham, 519 U.S. at
325). In Abraham v. Norcal Waste Sys., Inc., we held that the
plaintiffs’ claim of negligence based on state law was not pre-
empted under the “reference to” step of the preemption analy-
sis, explaining that “the relevant state law certainly does not
act immediately and exclusively on an ERISA plan, nor is
such a plan essential to the operation of the law.” 265 F.3d at
820; see also Ariz. State Carpenters Pension Trust Fund v.
Citibank, 125 F.3d 715, 724 n.4 (9th Cir. 1997) (holding that
state law negligence claims were not preempted under the “re-
fers to” prong). Our case law directs a conclusion that the
Employees’ state law negligence claims are not preempted
under the “reference to” prong of the preemption test. The
Employees’ professional negligence claims are based on com-
mon law negligence principles and California Civil Code
§§ 1708 and 1714(a). These laws do not act “immediately and
exclusively” on ERISA plans, and the existence of an ERISA
plan is not essential to these laws’ operation.
Turning to preemption under the “connection with” lan-
guage, we note that the Supreme Court has not provided a
succinct definition of, or analytical framework for, evaluating
the phrase “connection with.” See Rutledge v. Seyfarth, Shaw,
Fairweather & Geraldson, 201 F.3d 1212, 1216 (9th Cir.
2000), cert. denied 531 U.S. 992 (2000). Instead, “to deter-
mine whether a state law has the forbidden connection, we
look both to the objectives of the ERISA statute as a guide to
BOWDEN v. CNF INC. 3617
the scope of the state law that Congress understood would
survive, as well as to the nature of the effect of the state law
on ERISA plans.” Dillingham, 519 U.S. at 325 (internal cita-
tions and quotation marks omitted); see also Golden Gate
Rest. Ass’n, 546 F.3d at 654 (employing a “ ‘holistic analysis
guided by congressional intent’ ” (citation omitted)). We have
recognized that “ ‘[t]he basic thrust of the pre-emption clause
[is] to avoid a multiplicity of regulation in order to permit the
nationally uniform administration of employee benefit
plans.’ ” Rutledge, 201 F.3d at 1216 (quoting Travelers, 514
U.S. at 657) (modification in original). We have also noted
that “the Court has established a presumption that Congress
did not intend ERISA to preempt areas of ‘traditional state
regulation’ that are ‘quite remote from the areas with which
ERISA is expressly concerned — reporting, disclosure, fidu-
ciary responsibility, and the like.’ ” Id. (quoting Dillingham,
519 U.S. at 330).
[18] We have employed a “relationship test” in analyzing
“connection with” preemption, under which a state law claim
is preempted when the claim bears on an ERISA-regulated
relationship, e.g., the relationship between plan and plan
member, between plan and employer, between employer and
employee. Providence Health Plan v. McDowell, 385 F.3d
1168, 1172 (9th Cir. 2004); see also Gen. Am. Life Ins. Co.
v. Castonguay, 984 F.2d 1518, 1521 (9th Cir. 1993) (“The
key to distinguishing between what ERISA preempts and
what it does not lies . . . in recognizing that the statute com-
prehensively regulates certain relationships: for instance, the
relationship between plan and plan member, between plan and
employer, between employer and employee (to the extent an
employee benefit plan is involved), and between plan and
trustee.”); Abraham, 265 F.3d at 820-21 (same); accord
Gerosa v. Savasta & Co., 329 F.3d 317, 324 (2d Cir. 2003).
[19] Under the relationship test, the Employees’ state law
claims do not encroach on ERISA-regulated relationships.
The duty giving rise to the negligence claim runs from a third-
3618 BOWDEN v. CNF INC.
party actuary, i.e., a non-fiduciary service provider, to the
plan participants as intended third party beneficiaries of the
actuary’s service contract. The Employees’ claims against
Towers Perrin do not interfere with relationships between the
plans and a participant, between the plans and CNF or CFC,
or between those companies and their employees. At most
they might interfere with a relationship between the plan and
its third-party service provider. But as we stated in Cas-
tonguay, “ERISA doesn’t purport to regulate those relation-
ships where a plan operates just like any other commercial
entity—for instance, the relationship between the plan and its
own employees, or the plan and its insurers or creditors, or the
plan and the landlords from whom it leases office space.” 984
F.2d at 1522.21 Here, ERISA does not regulate the relationship
at issue and, therefore, there is no express preemption under
the “connection with” prong. Moreover, there is no indication
that the negligence would result in a multiplicity of regula-
tion, Congress’s chief concern in enacting the ERISA pre-
emption statute.
[20] Towers Perrin’s reliance on United Steelworkers of
America, AFL-CIO, CLC v. United Engineering, Inc., 52 F.3d
1386, is unpersuasive. In United Steelworkers, the Sixth Cir-
cuit held that plan participants in a distress-terminated plan
where PBGC was the designated trustee could not bring a
direct claim against the plan sponsor under the Labor Man-
agement Relations Act to recover non-guaranteed pension
benefits because that claim was preempted by ERISA. First,
United Steelworkers is inapposite because it involved dis-
placement of federal common law, which is analyzed under
a different framework than the question of preemption of state
21
See also Ariz. State Carpenters, 125 F.3d. at 724 (state law negligence
claim against bank not preempted); Gerosa, 329 F.3d at 328-30 (state law
professional malpractice claim against actuary not preempted); Coyne &
Delany Co. v. Selman, 98 F.3d 1457, 1470-71 (4th Cir.1996) (state law
professional malpractice claim against insurance professionals not pre-
empted because, in part, it is rooted in a field of traditional state regula-
tion).
BOWDEN v. CNF INC. 3619
law claims under 29 U.S.C. § 1144(a). See id. at 1393. Sec-
ond, as the district court noted here, United Steelworkers is
distinguishable because the plaintiffs there brought their
claims against the plan sponsor, not a third-party service pro-
vider. Although a state law negligence claim such as this one
might encroach on an ERISA-regulated relationship were it
made against a plan sponsor, it does not encroach on any
actuary-participant relationship governed by ERISA when
asserted against a non-fiduciary actuary.
b.
Having determined that the Employees’ state law negli-
gence claims are not expressly preempted under ERISA, we
next address Towers Perrin’s argument that the Employees’
negligence claims are “conflict preempted” by ERISA’s
exclusive civil enforcement scheme.
“ERISA section 502(a) contains a comprehensive scheme
of civil remedies to enforce ERISA’s provisions.” Cleghorn,
408 F.3d at 1225. “A state cause of action that would fall
within the scope of this scheme of remedies is preempted as
conflicting with the intended exclusivity of the ERISA reme-
dial scheme, even if those causes of action would not neces-
sarily be preempted by section 514(a).” Id. (citing Aetna
Health Inc. v. Davila, 542 U.S. 200, 214 n.4 (2004)). In
Ingersoll-Rand Co., the Supreme Court held that a plan par-
ticipant’s state law claim for wrongful discharge was conflict
preempted because that claim fell “squarely within the ambit
of ERISA § 510” and ERISA § 502(a) provided a remedy for
violations of section 510. 498 U.S. at 142-45(“Unquestionably, the Texas cause of action purports to pro-
vide a remedy for the violation of a right expressly guaranteed
by § 510 and exclusively enforced by § 502(a).”). The Court
also noted that “it is no answer to a pre-emption argument that
a particular plaintiff is not seeking recovery of pension bene-
fits.” Id. at 145.
3620 BOWDEN v. CNF INC.
As discussed above, ERISA’s civil enforcement provision
outlines a participant’s possible claims, which include “(1) an
action to recover benefits due under the plan, ERISA
§ 502(a)(1)(B); (2) an action for breach of fiduciary duties,
ERISA § 502(a)(2); and (3) a suit to enjoin violations of
ERISA or the Plan, or to obtain other equitable relief.” Bast
v. Prudential Ins. Co. of Am., 150 F.3d 1003, 1008 (9th Cir.
1998). Here, the Employees sued Towers Perrin under state
law for damages as a result of its professional negligence in
valuing the benefit liabilities of the prospective CFC Plan;
certifying that the CFC Plan would deliver benefits to the
CFC Plan participants equal to or greater than were due under
the CNF Plan as is required by ERISA § 208, 29 U.S.C.
§ 1058; and annually certifying adequate funding of the CFC
Plan. It is true that ERISA’s adequate funding requirement
provides the standard by which Towers Perrin’s valuation and
certifications would be judged with respect to the state law
negligence claims. However, the Employees’ negligence
claim against Towers Perrin does not seek damages based on
a breach of fiduciary duty and does not seek to enjoin Towers
Perrin in any way. One could, however, analogize the
Employees’ claim as one “to recover benefits due . . . under
the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). If so, then
the claim would likely be conflict preempted because ERISA
would provide both a cause of action and an enforcement
remedy. However, the Employees are not suing for benefits
based on plan language—they are suing for state law negli-
gence damages.22
Towers Perrin argues that the Employees’ claims would
interfere with the statutory scheme in Title IV of ERISA,
22
The district court concluded that the Employees’ claims were pre-
empted because they conflicted with ERISA § 409(a), 29 U.S.C.
§ 1109(a), which does not permit individual plan participants to sue for
breach of fiduciary duty unless the benefit inures to the entire plan. This
conclusion is erroneous because the Employees did not sue Towers Perrin
based on a breach of fiduciary duty under 29 U.S.C. § 1109(a); they never
alleged that Towers Perrin was an ERISA fiduciary.
BOWDEN v. CNF INC. 3621
which governs PBGC’s payment of reduced benefits to plan
participants of plans that have been distress terminated. See
29 U.S.C. § 1344(a). As the Fiduciary Defendants argued
with respect to Article III standing on the Employees’
ERISA-based claims, Towers Perrin argues that recovery
from Towers Perrin on state law negligence claims would
result in an increase in the value of plan assets under section
4044(c) and would alter, and thus interfere with, the priorit-
ized payment scheme under section 4044(a).
[21] This argument is unpersuasive. The Employees are
suing Towers Perrin for tort damages payable to the class of
aggrieved plaintiffs based on a duty owed them by Towers
Perrin under state law, not for damages for breach of fiduciary
duty payable to the plan (and thus PBGC).23 Moreover, in this
case the class the Employees seek to represent all participants
whose benefits were reduced under PBGC’s trusteeship.
Therefore, there is no encroachment on the section 4044(a)
allocation scheme. The Employees’ negligence claims are not
conflict preempted, and, as discussed above, are not expressly
preempted.
C.
Finally, we address the Employees’ sixteenth claim for
relief, which alleges that PBGC breached its fiduciary duties
under 29 U.S.C. §§ 1132(a)(2) and (a)(3) by choosing not to
pursue claims against the Fiduciary Defendants or Towers
23
For similar reasons, we reject Towers Perrin’s argument that the
Employees lack a redressable injury, and thus constitutional standing, to
sue them for negligence damages. If the district court determines that
Towers Perrin owes a duty to the Employees under the third party
intended beneficiary rationale discussed above, that negligence claim
would be based on a duty that runs from Towers Perrin directly to the CFC
Plan participants. There is also no statutory mechanism through which a
tort recovery by individual plaintiffs would inure to the benefit of PBGC.
Therefore, the Employees would have a stake in the recovery as victims
of an alleged tort and, therefore, Article III standing.
3622 BOWDEN v. CNF INC.
Perrin. Based on the presumption in Heckler v. Chaney, 470
U.S. 821 (1985), we hold that PBGC’s discretionary decision
not to pursue such claims is not subject to judicial review.
[22] In Heckler, the United States Supreme Court held that
a government agency’s discretionary decision not to pursue an
enforcement action should be presumed immune from judicial
review under the Administrative Procedures Act. See 470
U.S. at 832. The Court’s decision was animated by the “gen-
eral unsuitability for judicial review of agency decisions to
refuse enforcement,” which the Court explained:
[A]n agency decision not to enforce often involves
a complicated balancing of a number of factors
which are peculiarly within its expertise. Thus, the
agency must not only assess whether a violation has
occurred, but whether agency resources are best
spent on this violation or another, whether the
agency is likely to succeed if it acts, whether the par-
ticular enforcement action requested best fits the
agency’s overall policies, and, indeed, whether the
agency has enough resources to undertake the action
at all. An agency generally cannot act against each
technical violation of the statute it is charged with
enforcing. The agency is far better equipped than the
courts to deal with the many variables involved in
the proper ordering of its priorities.
470 U.S. at 831-32. This jurisdictional bar applies where
“ ‘statutes are drawn in such broad terms that in a given case
there is no law to apply.’ ” Pac. Gas & Elec. Co. v. FERC,
464 F.3d 861, 867 (9th Cir. 2006) (quoting Heckler, 470 U.S.
at 830); see also Port of Seattle, Wash. v. FERC, 499 F.3d
1016, 1027 (9th Cir. 2007) (“[T]he concern is that courts
should not intrude upon an agency’s prerogative to pick and
choose its priorities, and allocate its resources accordingly, by
demanding that an agency prosecute or enforce.”). “[T]he pre-
sumption may be rebutted where the substantive statute has
BOWDEN v. CNF INC. 3623
provided guidelines for the agency to follow in exercising its
enforcement powers.” Heckler, 470 U.S. at 832-33.
This presumption often arises in the context of a challenge
to agency action under the APA. See, e.g., Franklin v. Massa-
chusetts, 505 U.S. 788, 818-19 (1992); Serrato v. Clark, 486
F.3d 560, 568 (9th Cir. 2007). As a result, the Employees sug-
gests that the presumption does not apply to claims not
brought under the APA. However, as we stated in Sierra Club
v. Whitman, “[t]he presumption . . . has a long history and . . .
is not limited to cases brought under the APA.” 268 F.3d 898,
902 (9th Cir. 2001) (holding that a challenge to the EPA
Administrator’s decision not to initiate enforcement brought
under 33 U.S.C. § 1365 was not subject to review, and recog-
nizing that the Heckler presumption was based on the Court’s
review of four non-APA cases).
[23] Turning to the applicability of the Heckler presump-
tion here, PBGC retains discretion to sue on behalf of a
distress-terminated plan. When PBGC is acting as trustee to
a distress terminated plan, it “has the power . . . to commence,
prosecute, or defend on behalf of the plan any suit or proceed-
ing involving the plan.” 29 U.S.C. § 1342(d)(1)(B)(iv). Noth-
ing in ERISA expressly compels PBGC to pursue claims on
the terminated plan’s behalf.
Also favoring application of the jurisdictional bar is the
breadth of 29 U.S.C. § 1342(d)(1)(B)(iv)—from which PBGC
derives the power to sue—and the lack of standards by which
a court may review PBGC’s decision not to sue on behalf of
the plan. There is no “meaningful standard” against which to
judge PBGC’s decision not to act. See, e.g., Port of Seattle,
499 F.3d at 1027.
[24] PBGC’s unique role in the ERISA statutory scheme
further justifies application of the presumption against judicial
review. PBGC’s decision regarding whether to sue on behalf
of a plan involves the “complicated balancing” of all five fac-
3624 BOWDEN v. CNF INC.
tors identified in Heckler. PBGC must evaluate whether an
ERISA violation has occurred, whether its limited resources
are best spent on pursuing claims based on one violation or
another, whether it is likely to succeed if it acts, whether the
particular lawsuit best fits the agency’s overall policies, and
whether it has enough resources to undertake the action at all.24
See Heckler, 470 U.S. at 831-32.
[25] PBGC must weigh additional considerations that are
within the ambit of its peculiar expertise. PBGC has a broad
set of agency purposes, not all of which conclusively favor
suing each time it has an arguable claim. Its purposes are “(1)
to encourage the continuation and maintenance of voluntary
private pension plans for the benefit of their participants, (2)
to provide for the timely and uninterrupted payment of pen-
sion benefits to participants and beneficiaries under plans . . .
, and (3) to maintain premiums established by [PBGC] . . . at
the lowest level consistent with [statutory obligations].” 29
U.S.C. §§ 1302(a)(1)-(3) (alterations added). Further, PBGC
derives its funding from Congressionally-authorized and plan
sponsor-paid insurance premiums, investment income, pooled
assets from terminated plans for which it acts as trustee, and
recoveries from former sponsors of terminated plans. See 29
U.S.C. §§ 1305, 1342(a). Taken together, PBGC must balance
its statutory duties to all stakeholders, including premium
payers, participants and beneficiaries in ongoing plans, and
those in all of its terminated plans.
[26] The preceding leads us to the conclusion that the
Heckler presumption applies to PBGC’s decision not to pur-
sue claims on behalf of the CFC Plan, and we further con-
clude that no ERISA provision rebuts the presumption. As
stated, PBGC “has the power . . . to commence, prosecute, or
defend on behalf of the plan any suit or proceeding involving
the plan.” 29 U.S.C. § 1342(d)(1)(B)(iv). The Employees
24
PBGC’s brief on appeal states that its deficit at the time of this appeal
was over $18 billion dollars.
BOWDEN v. CNF INC. 3625
have not pointed to a section of ERISA that either compels
PBGC to pursue claims against plan fiduciaries or provides
guidelines for PBGC to follow in exercising its power to sue.
The Employees argue that the application of the presump-
tion does not extend to claims against the PBGC for breach
of fiduciary duty under 29 U.S.C. § 1132(a)(2), found in Title
I of the ERISA statute. However, PBGC’s role as a fiduciary
to plan participants is expressly limited by 29 U.S.C.
§ 1342(d)(3), which indicates that a trustee is not a fiduciary
to the extent that the requirements of Title IV, in which the
trustee’s discretionary power to sue is found, are inconsistent
with the requirements of Title I. Further, the fiduciary duty
standard stated in 29 U.S.C. § 1104(a) is expressly subject to
the provisions of 29 U.S.C. §§ 1342, which defines the trust-
ee’s powers. Therefore, although PBGC might be sued for an
alleged breach of a fiduciary duty owed to a plan participant,
the relevant duties are limited by Title IV of ERISA, and it
does not follow that PBGC may be sued for its decision not
to pursue an action against a third party.
[27] PBGC’s discretionary decision not to pursue claims
against the Fiduciary Defendants and Towers Perrin comes
within the Heckler presumption against judicial review, and
nothing in ERISA rebuts the presumption. Accordingly, we
hold that the PBGC’s decision is immune from judicial
review and affirm the dismissal of the Employees’ sixteenth
claim for relief.
IV.
The Employees lack Article III standing to bring their
ERISA claims seeking relief under 29 U.S.C. § 1132(a)(2)
against the Fiduciary Defendants because it is not likely that
their injury would be redressed if they were to prevail on
these claims. Further, the Employees’ claims seeking relief
pursuant to 29 U.S.C. § 1132(a)(3) do not seek appropriate
equitable relief. Therefore, the district court properly dis-
3626 BOWDEN v. CNF INC.
missed claims one through five. Although California law does
not generally impose a duty of ordinary care on Towers Perrin
to the Employees, who are not its clients, Towers Perrin is
obligated to act with ordinary care toward the intended third
party beneficiaries of its contracts. Because we cannot assess
whether the Employees are intended third party beneficiaries
of Towers Perrin’s engagement agreement based on the pres-
ent record, we reinstate claims six and seven and remand to
the district court for further proceedings. Regarding the six-
teenth claim for relief, PBGC’s discretionary decision not to
pursue claims against the Fiduciary Defendants or Towers
Perrin is not subject to review because of the complicated bal-
ancing of policies and interests PBGC must engage in to
determine whether such enforcement action is proper, a task
which is within PBGC’s peculiar expertise. Accordingly, the
decision of the district court is AFFIRMED in part,
REVERSED in part, and REMANDED.
Each party shall bear its own costs on appeal.