FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRISTOPHER M. SULYMA, and all 

others similarly situated,

Plaintiff-Appellant,

v.

INTEL CORPORATION INVESTMENT 

POLICY COMMITTEE; FINANCE 

COMMITTEE OF THE INTEL 

CORPORATION BOARD OF 

DIRECTORS; INTEL RETIREMENT 

PLANS ADMINISTRATIVE 

COMMITTEE; CHARLENE 

BARSHEFSKY; FRANK D. YEARY;

JAMES D. PLUMMER; REED E.

HUNDT; SUSAN L. DECKER;JOHN J.

DONAHOE; DAVID S. POTTRUCK;

RAVI JACOB; INTEL 401(K) SAVINGS 

PLAN; INTEL RETIREMENT 

CONTRIBUTION PLAN,

Defendants-Appellees.

No. 17-15864

D.C. No.

5:15-cv-04977-

NC

OPINION

Appeal from the United States District Court

for the Northern District of California

Nathanael M. Cousins, Magistrate Judge, Presiding

Argued and Submitted October 18, 2018

San Francisco, California
2 SULYMA V. INTEL CORP. INV. POLICY COMM.

Filed November 28, 2018

Before: J. Clifford Wallace and Susan P. Graber, Circuit 

Judges, and Robert S. Lasnik,* District Judge.

Opinion by Judge Wallace

SUMMARY**

Employee Retirement Income Security Act

The panel reversed the district court’s grant of summary 

judgment in favor of the defendants in an ERISA action on 

the ground that the limitations period had expired. 

A former employee and participant in Intel’s retirement 

plans sued the company for allegedly investing retirement 

funds in violation of ERISA section 1104. The district court 

concluded that the employee had the requisite “actual 

knowledge” to trigger ERISA’s three-year limitations 

period, 29 U.S.C. § 1113(2).

The panel held that a two-step process is followed in 

determining whether a claim is barred by section 1113(2). 

First, the court isolates and defines the underlying violation 

on which the plaintiff’s claim is founded. Second, the court 

inquires whether the plaintiff had “actual knowledge” of the 

alleged breach or violation. The panel held that actual 

 * The Honorable Robert S. Lasnik, United States District Judge for 

the Western District of Washington, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
SULYMA V. INTEL CORP. INV. POLICY COMM. 3

knowledge does not mean that a plaintiff had knowledge that 

the underlying action violated ERISA, nor does it merely 

mean that a plaintiff had knowledge that the underlying 

action occurred. Rather, the defendant must show that the 

plaintiff was actually aware of the nature of the alleged 

breach more than three years before the plaintiff’s action was 

filed. In an ERISA section 1104 case, the plaintiff must have 

been aware that the defendant had acted and that those acts 

were imprudent. Disagreeing with the Sixth Circuit, the 

panel held that the plaintiff must have actual knowledge, 

rather than constructive knowledge.

The panel concluded that disputes of material fact as to 

the plaintiff’s actual knowledge precluded summary 

judgment, and remanded the case to the district court for 

further proceedings.

COUNSEL

Matthew W.H. Wessler (argued), Jonathan E. Taylor, and 

Rachel Bloomekatz, Gupta Wessler PLLC, Washington, 

D.C.; Joseph A. Creitz, Creitz & Serebin LLP, San 

Francisco, California; Ryan T. Jenny and Gregory Y. Porter, 

Bailey & Glasser LLP, Washington, D.C.; R. Joseph Barton, 

Block & Leviton LLP, Washington, D.C.; for PlaintiffAppellant.

John J. Buckley Jr. (argued), Juli Ann Lund, David S. 

Kurtzer-Ellenbogen, and Daniel F. Katz, Williams & 

Connolly LLP, Washington, D.C.; Scott P. Cooper, 

Proskauer Rose LLP, Los Angeles, California; Myron D. 

Rumeld, Proskauer Rose LLP, New York, New York; for 

Defendants-Appellees.
4 SULYMA V. INTEL CORP. INV. POLICY COMM.

OPINION

WALLACE, Circuit Judge:

A former employee and participant in Intel’s retirement 

plans sued the company for allegedly investing retirement 

funds in violation of the Employee Retirement Income 

Security Act (ERISA). Intel moved to dismiss the complaint 

on the ground that the limitations period for his claims had 

expired. The magistrate judge1 converted Intel’s motion to 

dismiss into a motion for summary judgment and entered 

summary judgment in favor of Intel. The employee now 

appeals, arguing that the district court erred by concluding 

he had the requisite “actual knowledge” required by ERISA 

to trigger the limitations period. We have jurisdiction under 

28 U.S.C. § 1291, and we reverse.

I.

Christopher Sulyma worked at Intel between 2010 and 

2012 and participated in two of Intel’s retirement plans, both 

governed by ERISA. The first was the Intel Retirement Plan, 

also known as the Intel Retirement Contribution Plan. The 

second was the Intel 401(k) Savings Plan.

Sulyma’s account performance depended in part on 

investment decisions controlled by Intel, through the 

performance of different Intel “funds.” Sulyma’s Retirement 

Plan account was invested in the Intel Global Diversified 

Fund. Sulyma’s Savings Plan account was invested in the 

Intel Target Date 2045 Fund. The Funds were managed by 

an Intel investment committee responsible for choosing and 

managing the Funds’ asset allocations. The investment 

 1 The parties consented to the jurisdiction of a magistrate judge. See 

28 U.S.C. § 636.
SULYMA V. INTEL CORP. INV. POLICY COMM. 5

committee members were appointed and supervised by a 

finance committee formed by members of the Intel Board of 

Directors. A third administrative committee was responsible 

for disclosing information about the Plans to plan 

participants. This opinion refers to these various groups as 

“Intel” unless the context otherwise requires.

When the Funds were established, they did not include 

significant “alternative investments,” such as hedge funds.

Intel increased the Funds’ alternative investments to reduce 

the investment risk to the funds through greater 

diversification. But the reduction in investment risk came at 

the cost of higher fees and lower performance during periods 

of strong returns in the equity market. When equity markets 

did in fact begin to improve after the Great Recession, the 

Funds’ performances lagged compared to index funds and 

comparable portfolios. Intel disclosed these investment 

decisions to Sulyma through various documents hosted on 

two websites. The documents disclosed both the fact of the 

alternative investments and the basic strategy behind the 

decision to invest in them. For instance, “Fund Fact Sheets” 

created in 2010 disclosed that the 2045 Fund was invested 

more in hedge funds than comparable portfolios, and that it 

was not performing as well as a result. Sulyma accessed 

some of this information on the websites, but he testified that 

he was not actually aware that his retirement accounts were 

invested in alternative investments while working at Intel.

Sulyma alleges that he eventually learned about the 

Funds’ poor performance; he thereafter filed this action 

against Intel on October 29, 2015, raising six claims. His 

first and third claims alleged that the investment committee 

violated 29 U.S.C. § 1104 by imprudently investing in 

alternative investments. His second and fourth claims 

alleged that the administrative committee violated 29 U.S.C. 
6 SULYMA V. INTEL CORP. INV. POLICY COMM.

§ 1104 and 29 C.F.R. § 2250.404a-5(a) by failing to disclose 

adequately information about the alternative investments. 

His fifth claim alleged that the finance committee violated 

29 U.S.C. § 1104 by failing to monitor the investment and 

administrative committees. His sixth claim alleged that all 

defendants were liable for knowing of the other defendants’ 

ERISA violations and failing to remedy them.

Intel moved to dismiss the complaint as time-barred 

under 29 U.S.C. § 1113(2), which provides that an action 

under section 1104 may not be commenced more than “three 

years after the earliest date on which the plaintiff had actual 

knowledge of the breach or violation.” The district court 

converted the motion to dismiss into a motion for summary 

judgment and ordered discovery limited to the statute of 

limitations issue. After discovery, the district court ruled that 

there was no dispute of material fact that Sulyma had actual 

knowledge of the alternative investments more than three 

years before filing this action, and entered summary 

judgment in favor of Intel. Sulyma appeals, arguing that the 

district court applied the wrong standard of “actual 

knowledge” to his imprudent investing and derivative 

liability claims.2

II.

We review a district court’s summary judgment de novo. 

Curley v. City of North Las Vegas, 772 F.3d 629, 631 (9th 

Cir. 2014). “We must determine, viewing the evidence in the 

light most favorable to the nonmoving party, whether there 

 2 The district court also granted summary judgment to Intel on 

Sulyma’s failure-to-disclose claims. Sulyma has not appealed that ruling, 

and therefore we do not address it.
SULYMA V. INTEL CORP. INV. POLICY COMM. 7

are any genuine issues of material fact and whether the 

district court correctly applied the substantive law.” Id.

III.

ERISA imposes “a duty of care with respect to the 

management of existing trust funds, along with liability for 

breach of that duty, upon plan fiduciaries.” Lockheed Corp. 

v. Spink, 517 U.S. 882, 887 (1996). Fiduciaries are required 

to act “solely in the interest of the participants and 

beneficiaries” and must exercise “the care, skill, prudence, 

and diligence . . . that a prudent man acting in a like capacity 

and familiar with such matters would use.” 29 U.S.C.

§ 1104(a)(1). A claim that an ERISA fiduciary has breached 

this prudent investor rule must be brought within six years 

after “the date of the last action which constituted a part of 

the breach or violation,” or within three years after “the 

earliest date on which the plaintiff had actual knowledge of 

the breach or violation.” Id. § 1113.

Sulyma initiated this action on October 29, 2015, and 

Intel has not argued that he did so beyond the six-year 

limitations period. The only issue on appeal is, therefore, 

whether Sulyma had “actual knowledge of the breach or 

violation” beyond the three-year limitations period, i.e., 

before October 29, 2012. Because there has been some 

confusion in our case law over the scope of the “actual 

knowledge” standard, we begin by explaining what it means 

for a plaintiff to have actual knowledge of a breach. We then 

apply that standard to each of Sulyma’s claims.

A.

We follow a two-step test to determine whether a claim 

is barred by section 1113(2). Ziegler v. Conn. Gen. Life Ins. 

Co, 916 F.2d 548, 550 (9th Cir. 1990). First, we “isolate and 
8 SULYMA V. INTEL CORP. INV. POLICY COMM.

define the underlying violation upon which [the] plaintiff’s 

claim is founded.” Id. at 551 (alterations omitted) (quoting 

Meagher v. Int’l Ass’n of Machinists & Aerospace Workers 

Pension Plan, 856 F.2d 1418, 1422 (9th Cir. 1988)). Second, 

we “inquire when [the plaintiff] had ‘actual knowledge’ of 

the alleged breach or violation.” Id. at 552 (emphasis 

omitted) (quoting 29 U.S.C. § 1113(2)). “This inquiry into 

[the] plaintiff[’s] actual knowledge is entirely factual, 

requiring examination of the record. Identifying the breach 

may end the analysis in cases where the breach coincides 

with an ERISA plaintiff’s actual knowledge of the breach.” 

Id.

ERISA does not define “knowledge” or “actual 

knowledge.” See 29 U.S.C. § 1002. But when Congress first 

enacted ERISA in 1974, section 1113 contained two kinds 

of knowledge requirement, actual knowledge and 

constructive knowledge. 29 U.S.C. § 1113(a)(2) (1976). The 

actual knowledge provision was identical to current 

section 1113(2), but the constructive knowledge provision 

provided that an action could not be commenced more than 

three years after the earliest date “on which a report from 

which [the plaintiff] could reasonably be expected to have 

obtained knowledge of such breach or violation was filed 

with the secretary under this title.” Id. § 1113(a)(2)(B) 

(1976). Congress repealed the constructive knowledge 

provision in 1987, leaving only the actual knowledge 

requirement. Omnibus Budget Reconciliation Act of 1987, 

Pub. L. No. 100-203, § 9342(b), 101 Stat. 1330. Since that 

time, the Supreme Court has not provided an authoritative 

construction for section 1113(2). See Tibble v. Edison Int’l, 

135 S. Ct. 1823 (2015). Our own interpretations have 

likewise not always been straightforward, leading to some 

confusion in our district courts over what “actual 

knowledge” entails. See, e.g., In re Northrop Grumman 
SULYMA V. INTEL CORP. INV. POLICY COMM. 9

Corp. ERISA Litigation, 2015 WL 10433713, at *20 n.140 

(C.D. Cal. Nov. 24, 2015) (“The court acknowledges that it 

is difficult to harmonize Waller [v. Blue Cross of 

California]’s holding with the rule announced in Blanton [v. 

Anzalone]”). Faced with this confusion, we begin our 

analysis by carefully examining our past cases to determine 

the meaning of “actual knowledge” in this circuit.

We first interpreted section 1113 in Blanton v. Anzalone, 

760 F.2d 989 (9th Cir. 1985), decided before the 1987 

amendment. In that case, the beneficiary of an ERISA plan 

account sued the plan’s trustees. Id. at 991. The beneficiary 

alleged that the trustees breached their fiduciary duties by 

renting a building allegedly owned by the account to a 

corporation, of which the trustees were officers and 

shareholders. Id. The trustees counterclaimed for a 

declaration that the account did not have any interest in the 

building, arguing that the transaction that placed the interest 

in the beneficiary’s account was void under 29 U.S.C. 

§ 1106. Id. We held that the trustees’ counterclaim was 

barred by section 1113 because the transaction took place in 

September 1977, more than three years prior to the action’s 

commencement in June 1981. Id. In reaching our holding, 

we reasoned that the trustees “had actual knowledge of the 

transaction at the time it took place because they, as trustees, 

were parties to the transaction, and they . . . actually made 

the decision to undertake the transaction.” Id. We rejected 

the trustees’ argument that they “did not have actual 

knowledge of the violation until their attorney advised them 

that the transaction was prohibited” because section 1113 “is 

triggered by the [trustees’] knowledge of the transaction that 

constituted the alleged violation, not by their knowledge of 

the law.” Id. at 991–92.
10 SULYMA V. INTEL CORP. INV. POLICY COMM.

We relied on Blanton in Meagher, 856 F.2d at 1423. In 

that case, the plaintiff was the beneficiary of an International 

Association of Machinists pension. Id. at 1419–20. The 

Association voted to amend the pension plan, reducing the 

plaintiff’s benefits. Id. at 1420. The plaintiff retired in 1977 

and began receiving checks with the reduced amount. Id. at 

1419. In 1986, he filed an ERISA action under 29 U.S.C. 

§ 1054. Id. at 1419, 1421. We held that the amendment was 

ineffective, and that every application of the amendment in 

the form of a reduced check constituted a violation of 

ERISA. Id. at 1423. We then quoted Blanton’s rule that the 

“statute of limitations is triggered by [a claimant’s] 

knowledge of the transaction that constituted the alleged 

violation, not by [his] knowledge of the law,” and concluded 

that every time the plaintiff received a reduced check “he had 

knowledge of the transaction, though he may not have 

known at the time that the reduction in benefits was unlawful 

under ERISA.” Id. (alterations in original). Applying that 

reasoning, we held that the plaintiff had timely brought 

claims only for checks issued within the three years before 

he filed the action. Id.

Meagher applied the pre-1987 version of section 1113. 

Our first case interpreting the amended section was Ziegler, 

916 F.2d 548. In that case, pension plan administrators 

contracted with an insurance company to invest the 

pension’s funds. Id. at 549. The contract provided that, upon 

termination of the agreement, the insurance company would 

transfer the funds according to one of two options, a “book 

value” over five years, or a “market value” in a lump sum 

that adjusted the amount based on the insurance company’s 

“market value formula.” Id. The administrators opted for the 

lump sum, but then sued the insurance company under 

sections 1104 and 1106 for retaining the “market value” 

adjustment. Id. at 550. We held that the administrators’ 
SULYMA V. INTEL CORP. INV. POLICY COMM. 11

action was time-barred, reasoning that they had actual 

knowledge of the ERISA violation when the insurance 

company informed them that selection of the “market value” 

option would result in the insurance company’s retaining a 

substantial portion of pension funds. Id. at 552. This holding 

was consistent with Blanton and Meagher, although Ziegler

did not cite those cases in its analysis of actual knowledge. 

See id.

We next interpreted section 1113 in Phillips v. Alaska 

Hotel & Restaurant Employees Pension Fund, 944 F.2d 509 

(9th Cir. 1991). In that case, pension plan contributors sued 

the pension fund administrators under section 1104 for 

maintaining restrictive vesting requirements that excluded 

many contributors from obtaining benefits. Id. at 512. The 

plaintiffs had actual knowledge of the restrictive vesting 

requirements more than three years before they filed the 

action, but the district court nonetheless held that section 

1113 was not a bar because the failure to relax the vesting 

requirement was a “continuing breach.” Id. at 520. We 

reversed, holding that actual knowledge is “measured from 

the ‘earliest date’ on which [the plaintiff] knew of the 

breach.” Id. We reasoned that, although a “continuous series 

of breaches may allow a plaintiff to argue that a new cause 

of action accrues with each new breach . . . [,] if the breaches 

are of the same kind and nature and the plaintiff had actual 

knowledge of one of them more than three years before 

commencing suit, [section 1113] bars the action.” Id. at 521. 

A different rule, we explained, “essentially reads the ‘actual 

knowledge’ standard out of the statute.” Id. at 520.

The foregoing cases establish that knowledge of 

illegality under ERISA is not required to trigger section 

1113’s three-year limitations period. Instead, knowledge of 

the allegedly illegal action or transaction can be sufficient. 
12 SULYMA V. INTEL CORP. INV. POLICY COMM.

However, none of these cases squarely held that knowledge 

of the transaction alone was sufficient “actual knowledge” 

under the statute. Rather, in each case the plaintiffs were 

parties to the transaction, Blanton, 760 F.2d at 991, or were 

specifically informed by the plan administrator of the action, 

see Ziegler, 916 F.2d at 552; Meagher, 856 F.2d at 1421, or 

actual knowledge of the breach was not at issue, Phillips, 

944 F.2d at 520–21.

We first addressed whether knowledge of the underlying 

transaction was necessarily sufficient to trigger the threeyear limitations period in Waller v. Blue Cross of California, 

32 F.3d 1337 (9th Cir. 1994). In that case, retirement plan 

participants sued plan administrators under section 1104 for 

terminating the plan, using plan assets to purchase annuities 

on behalf of the participants, and retaining the remaining 

assets. Id. at 1338. The administrators moved to dismiss the 

complaint as time-barred, arguing that the three-year 

limitations period began to run as soon as the plaintiffs 

learned about the purchase of annuities. Id. at 1340–41. We 

rejected that argument, reasoning that “[w]e decline to 

equate knowledge of the purchase of annuities in this case 

with actual knowledge of the alleged breach of fiduciary 

duty,” and we favorably quoted the D.C. Circuit rule that 

“[t]he disclosure of a transaction that is not inherently a 

statutory breach of fiduciary duty cannot communicate the 

existence of an underlying breach.” Id. at 1341 (alteration 

omitted) (quoting Fink v. Nat’l Sav. & Trust Co., 772 F.2d 

951, 957 (D.C. Cir. 1985)). Although in some tension with 

our previous cases, Waller’s holding did not conflict with the 

holdings in those cases because Waller considered only 

whether knowledge of the underlying transaction alone

triggers section 1113(2). As previously explained, our earlier 

cases, while perhaps suggesting that rule, never squarely 

adopted it. Waller was thus the first case to consider whether 
SULYMA V. INTEL CORP. INV. POLICY COMM. 13

“actual knowledge of the breach” means only knowledge of 

the underlying transaction, and it established that actual 

knowledge must mean something more, at least in cases in 

which the underlying transaction does not disclose the nature 

of the breach.

The lesson we draw from these cases is thus two-fold. 

First, “actual knowledge of the breach” does not mean that a 

plaintiff has knowledge that the underlying action violated 

ERISA. Blanton, 760 F.2d at 992. Second, “actual 

knowledge of the breach” does not merely mean that a 

plaintiff has knowledge that the underlying action occurred. 

Waller, 32 F.3d at 1341. “Actual knowledge” must therefore 

mean something between bare knowledge of the underlying 

transaction, which would trigger the limitations period 

before a plaintiff was aware he or she had reason to sue, and 

actual legal knowledge, which only a lawyer would normally 

possess.

This leads us to the question of what this extra 

“something” must entail. In light of the statutory text and our 

case law, we conclude that the defendant must show that the 

plaintiff was actually aware of the nature of the alleged 

breach more than three years before the plaintiff’s action is 

filed. The exact knowledge required will thus vary 

depending on the plaintiff’s claim. For instance, in a 

section 1104 case, the plaintiff must be aware that the 

defendant has acted and that those acts were imprudent. See, 

e.g., Waller, 32 F.3d at 1341. But in, for example, a 

section 1106 case, the plaintiff need only be aware that the 

defendant has engaged in a prohibited transaction, because 

knowledge of the transaction is all that is necessary to know 

that a prohibited transaction has occurred. See, e.g., Blanton, 

760 F.2d at 991–92. This interpretation is consistent with our 

statement in Ziegler that “[i]dentifying the breach may end 
14 SULYMA V. INTEL CORP. INV. POLICY COMM.

the analysis in cases where the breach coincides with an 

ERISA plaintiff’s actual knowledge of the breach,” 916 F.2d 

at 552, reconciles what could appear to be conflicting rules 

in Blanton and Waller, and flows naturally from 

section 1113(2)’s text: “three years after the earliest date on 

which the plaintiff had actual knowledge of the breach or 

violation.” (Emphasis added.) The key is that, whatever the 

underlying ERISA claim, the limitations period begins to run 

once the plaintiff has sufficient knowledge to be alerted to 

the particular claim.

In reaching this holding, we emphasize that for a plaintiff 

to have sufficient knowledge to be alerted to his or her claim, 

the plaintiff must have actual knowledge, rather than 

constructive knowledge. As we explained in the Digital 

Millennium Copyright Act context, “[t]he statutory phrase 

‘actual knowledge’ means what it says: knowledge that is 

actual, not merely a possible inference from ambiguous 

circumstances.” Ventura Content, Ltd. v. Motherless, Inc., 

885 F.3d 597, 609 (9th Cir. 2018), cert. denied, 2018 WL 

4031239 (U.S. Oct. 29, 2018) (No. 18-235). The text of 

section 1113 uses this statutory phrase, and Congress 

removed the constructive knowledge provision from the 

statute in 1987. This amendment strongly suggests that 

Congress intended for only an actual knowledge standard to 

apply. Thus, as in Ventura, we hold that the phrase “actual 

knowledge” means the plaintiff is actually aware of the facts 

constituting the breach, not merely that those facts were 

available to the plaintiff. To prevail on a statute of 

limitations defense on a section 1104 claim, as here, 

therefore, the defendant must show that there is no dispute 

of material fact that the plaintiff was actually aware that the 

defendant acted imprudently.
SULYMA V. INTEL CORP. INV. POLICY COMM. 15

We recognize that this understanding of actual 

knowledge conflicts with the Sixth Circuit’s reasoning in

Brown v. Owens Corning Investment Review Committee, 

622 F.3d 564, 571 (6th Cir. 2010). In that case, the Sixth 

Circuit held that, “[w]hen a plan participant is given specific 

instructions on how to access plan documents, their failure 

to read the documents will not shield them from having 

actual knowledge of the documents’ terms.” Id. We 

respectfully disagree with that analysis. As we have 

previously recognized, “plan participants who have been 

provided with [summary plan descriptions] are charged with 

constructive knowledge of the contents of the document,” 

not actual knowledge. See Scharff v. Raytheon Co. Short 

Term Disability Plan, 581 F.3d 899, 908 (9th Cir. 2009) 

(emphasis added). We would therefore characterize the 

plaintiff described in Brown as having constructive 

knowledge only. Under our interpretation of ERISA, such 

knowledge is insufficient.

We also recognize Intel’s argument that there are “strong 

policy reasons” to conclude that “actual knowledge” has a 

broader meaning, including knowledge that a plaintiff can 

glean from corporate disclosures. However, we are not 

persuaded that Intel’s proffered policy reasons have force in 

this context. To begin with, Sulyma might just as easily 

argue that there are “strong policy reasons” to interpret 

actual knowledge narrowly, such as to promote fiduciary 

accountability. Which way the policy rationale cuts depends 

on the person making the argument. Second, and more 

fundamentally, weighing the policy merits of different 

knowledge standards was for Congress to undertake when it 

enacted, and then amended, section 1113, not for this court. 

Our task is not to make policy decisions, but to interpret the 

statute as enacted. Although policy reasoning may be 

relevant to our interpretation of the statute when grounded in 
16 SULYMA V. INTEL CORP. INV. POLICY COMM.

ERISA’s text or other congressional intent, Intel has not 

provided us with any such reasoning. We therefore hold that 

section 1113 means what it says: to trigger the three-year 

limitations period, a plaintiff must have “actual knowledge 

of the breach or violation.”

B.

Applying this standard de novo to Sulyma’s appealed 

claims, we conclude that the district court erred by entering 

summary judgment in favor of Intel.

1.

Sulyma’s first claim alleged that the investment 

committee violated section 1104 by “adopting an asset 

allocation model such that the Intel [Target Date Fund 

portfolios] were and are comprised of approximately 20–

25% Hedge Funds, 4–5% commodities, and where 

international equities account for over 50% of equity 

holdings.” Sulyma alleged that this selection was unduly 

risky and that Intel acted imprudently by disregarding those 

risks or by insufficiently considering them before acting. 

Sulyma’s third claim similarly alleged that the investment 

committee violated section 1104 by “increas[ing] the 

Diversified Fund’s allocations to hedge funds and private 

equity and add[ing] allocations to commodities, resulting in 

22.23% of fund assets, approximately $1.2 billion, allocated 

to these alternative investments.” Sulyma alleged that, “[b]y 

the end of 2013, the Investment Committee had caused the 

Diversified Fund to allocate 36.71%, $2.33 billion, to such 

alternative investments.” As with his first claim, Sulyma 

alleged that this selection was unduly risky and that the 

investment committee acted imprudently by disregarding or 

insufficiently considering those risks.
SULYMA V. INTEL CORP. INV. POLICY COMM. 17

Intel argues that Sulyma had actual knowledge of this 

alleged breach because it disclosed information about plan 

asset allocation and the investment strategy behind that 

allocation before October 29, 2012. Intel points to Fund Fact 

Sheets in 2010, 2011, and 2012, a 2011 Qualified Default 

Investment Alternative Notice, a 2012 Summary Plan 

Description, 2012 Annual Disclosures, and several 

disclosures on Intel’s website that explained Intel’s 

alternative investments, the strategy behind those 

investments, and possible risks. Intel argues that, by 

disclosing the mix of investments that Sulyma claims was 

imprudent, along with the costs and benefits of such an 

approach, Sulyma had “actual knowledge of the breach.”

We agree that Intel’s evidence demonstrates that Sulyma 

had sufficient information available to him to know about 

the allegedly imprudent investments before October 29, 

2012. However, that is insufficient. Because Sulyma brought 

a claim under section 1104, he was required to have actual 

knowledge both that those investments occurred, and that 

they were imprudent. But Sulyma declared that he was 

“unaware that the monies that [he] had invested through the 

Intel retirement plans had been invested in hedge funds or 

private equity” and that he did “not recall seeing any 

documents during [his] employment at Intel that alerted 

[him] to the fact that [his] retirement monies were 

significantly invested in hedge funds or private equity.”

Sulyma also testified that he was unaware of documents 

making these disclosures when specifically deposed on this 

point. These statements created a dispute of material fact that 

precluded summary judgment on these claims. On this 

record, only a fact-finder could have determined that Sulyma 

had the requisite “actual knowledge of the breach” for 

section 1113(2) to bar the action.
18 SULYMA V. INTEL CORP. INV. POLICY COMM.

2.

Sulyma also appeals from the district court’s summary 

judgment on his derivative liability claims. Sulyma’s fifth 

claim alleged that the finance committee violated 

section 1104 by failing to monitor the performance of the 

investment committees responsible for making the allegedly 

imprudent investment allocations. Sulyma’s sixth claim 

alleged that all defendants violated section 1105 by knowing 

of the other defendants’ breaches and taking no steps to 

remedy them.

Sulyma argues that the limitations period for his 

derivative claims could not begin to run until the end-point 

of the limitations period on his primary claims. That is 

incorrect. As we have previously explained, when an ERISA 

breach is ongoing such that it may be characterized as 

multiple violations, “[t]he earliest date on which a plaintiff 

became aware of any breach . . . start[s] the limitation period 

of [section 1113] running.” Phillips, 944 F.2d at 520. Rather, 

as with Sulyma’s first and third claims, summary judgment 

was inappropriate because there was a dispute of material 

fact over whether Sulyma had “actual knowledge of the 

breach” by 2012. If Sulyma in fact never looked at the 

documents Intel provided, he cannot have had “actual 

knowledge of the breach” because he cannot have been 

aware that imprudent investments were made and that other 

Intel fiduciaries were failing to monitor or remedy that 

imprudence. Because there was a dispute of material fact 

over Sulyma’s actual knowledge, the district court erred by 

entering summary judgment in favor of Intel on these claims. 

We therefore reverse the district court’s summary judgment 

and remand for further proceedings consistent with this 

opinion.

REVERSED and REMANDED.