PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 22-1618

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BETH BERKELHAMMER, individually and as

representative of a class of participants and beneficiaries on 

behalf of the ADP TotalSource Retirement Savings Plan; 

NAOMI RUIZ, individually and as representative of a class 

of participants and beneficiaries on behalf of the ADP 

TotalSource Retirement Savings Plan,

Appellants

v.

ADP TOTALSOURCE GROUP, INC.; AUTOMATIC 

DATA PROCESSING, INC.; ADP TOTALSOURCE 

RETIREMENT SAVINGS PLAN COMMITTEE;

NFP RETIREMENT, INC.; JOHN DOES 1-40

_______________

On Appeal from the United States

District Court for the District of New Jersey

(D.C. No. 2-20-cv-05696)

District Judge: Honorable Esther Salas

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2

Argued

December 6, 2022

Before: SHWARTZ, MATEY, and FUENTES, Circuit 

Judges.

(Filed: July 17, 2023)

_______________

Jerome J. Schlichter

Sean E. Soyars [ARGUED]

Schlichter Bogard

100 South 4th Street, Suite 1200

St. Louis, MO 63102

Counsel for Appellants

Jenya O. Godina

Meaghan M. VerGow [ARGUED]

O’Melveny & Myers

1625 Eye Street NW

Washington, DC 20006

Kevin Kraft

Catalina J. Vergara

O’Melveny & Myers

400 South Hope Street, 18th Floor

Los Angeles, CA 90071

Counsel for Appellee NFP Retirement, Inc.

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OPINION OF THE COURT

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MATEY, Circuit Judge.

Beth Berkelhammer and Naomi Ruiz participated in the 

ADP TotalSource Retirement Savings Plan (“Plan”), an 

investment portfolio managed by NFP Retirement, Inc. 

(“NFP”). Displeased with NFP’s performance, they filed suit 

under § 502(a)(2) of the Employment Retirement Income 

Security Act of 1974 (“ERISA”) not for their own losses, but 

derivatively on behalf of the Plan. The Plan’s contract with 

NFP contained an agreement to arbitrate disputes between the 

two entities. Berkelhammer and Ruiz say that since they did 

not personally agree to arbitrate, the arbitration provision does 

not reach their claims. The District Court disagreed, holding 

that Berkelhammer and Ruiz stand in the Plan’s contractual 

shoes and must accept the terms of the Plan’s contract. We 

agree and will affirm.

I.

The claims brought by Berkelhammer and Ruiz 

(“Appellants”) focus on the Plan’s management. ADP

TotalSource, a fiduciary of the Plan,1 created a committee to 

1 Under ERISA, a plan’s governing written instrument 

must “provide for one or more named fiduciaries who . . . have 

authority to control and manage the operation and 

administration of the plan.” 29 U.S.C. § 1102(a)(1). “[A] 

fiduciary shall discharge his duties with respect to a plan solely 

in the interest of the participants and beneficiaries,” acting with 

reasonable care to diversify investments, defray reasonable 

administrative expenses, and “minimize the risk of large 

losses.” Id. § 1104(a)(1). ERISA permits a fiduciary to employ 
4

handle administration. That committee entered into an 

Investment Advisory Agreement (“IAA”) with NFP to obtain 

NFP’s advice on the Plan’s investment strategies. In the IAA, 

the Plan and NFP agreed to arbitrate a wide array of claims,

2

and that arbitration clause is the focus of this dispute. 

The short story: Appellants, individually and as 

representatives of a class of participants and beneficiaries, sued 

ADP TotalSource, the administrative committee, and NFP on 

behalf of the Plan, alleging breaches of fiduciary duties and 

violations of ERISA. NFP responded with a motion to compel 

arbitration, which the District Court granted, reasoning that 

although Appellants had not personally consented to the 

arbitration clause in the IAA, the Plan had. Since Appellants 

sued on the Plan’s behalf, the District Court held that 

arbitration was required.3

others to “render advice with regard to any responsibility such 

fiduciary has under the plan.” Id. § 1102(c)(2).

2 The IAA provides that “[a]ll disputes and 

controversies relating to the interpretation, construction, 

performance, or breach of” the agreement will be submitted to 

mediation and, if that fails, arbitration. App. 308. That 

provision also states that “[f]inal resolution of any dispute 

through arbitration may include any remedy or relief that the 

arbitrator deems just and equitable.” App. 308.

3 The District Court had jurisdiction under 28 U.S.C. 

§ 1331 and 29 U.S.C. § 1132(e)(1), and we have jurisdiction 

under 28 U.S.C. § 1291. “We review the District Court’s order 

compelling arbitration de novo.” See Singh v. Uber Techs. Inc., 

939 F.3d 210, 217 (3d Cir. 2019). There are “two possible 

standards under which a motion to compel arbitration could be 

decided—the motion to dismiss standard or the summary 
5

II.

The Federal Arbitration Act provides that “[a] written 

provision . . . to settle by arbitration a controversy . . . shall be 

valid, irrevocable, and enforceable, save upon such grounds as 

exist at law or in equity for the revocation of any contract.” 9 

U.S.C. § 2. That statute places arbitration agreements “upon 

the same footing as other contracts, . . . [making] ‘arbitration

agreements as enforceable as other contracts.’” White v. 

Samsung Elecs. Am., Inc., 61 F.4th 334, 338–39 (3d Cir. 2023)

(citation omitted). As a result, “a court must hold a party to its 

arbitration contract just as the court would to any other kind.”4

Morgan v. Sundance, Inc., 142 S. Ct. 1708, 1713 (2022). That 

Congressional command focuses our analysis on whether 

Appellants have a binding agreement to arbitrate under the 

IAA.

judgment standard.” Id. at 216. If an arbitration agreement’s 

existence is not apparent from the pleadings, the summary 

judgment standard applies and “the party opposing arbitration 

is given ‘the benefit of all reasonable doubts and inferences that 

may arise.’” Kaneff v. Del. Title Loans, Inc., 587 F.3d 616, 620 

(3d Cir. 2009) (citation omitted). Because Appellants raise 

“additional facts sufficient to place the agreement” in dispute, 

we apply the summary judgment standard here. Guidotti v. 

Legal Helpers Debt Resol., L.L.C., 716 F.3d 764, 776 (3d Cir. 

2013).

4 The obligation to treat arbitration contracts like any 

other contract is no different under ERISA. See Pritzker v. 

Merrill Lynch, Pierce, Fenner & Smith, Inc., 7 F.3d 1110, 1122 

(3d Cir. 1993) (“ERISA claims are subject to compulsory 

arbitration under the FAA and in accordance with the terms of 

a valid arbitration agreement.”).
6

Consent is the key, as “a court may submit to arbitration 

only those disputes . . . that the parties have agreed to submit.” 

Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 302 

(2010) (citation omitted). Indeed, it is consent that allows 

arbitrators to decide cases at all because arbitrators “derive 

their powers from the parties’ agreement to forgo the legal 

process and submit their disputes to private dispute resolution.” 

Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407, 1416 (2019) 

(citation omitted). So we usually ask “two threshold questions. 

First, is there a valid arbitration agreement between the parties? 

And second, does the dispute fall with[in] the language of that 

agreement?” Abdurahman v. Prospect CCMC LLC, 42 F.4th 

156, 159 (3d Cir. 2022) (citation omitted) (alteration in 

original). Or, simpler, whether there is a contract and what it 

says. Both are answered using “traditional principles of 

contract and agency law.” Bel-Ray Co. v. Chemrite (Pty) Ltd., 

181 F.3d 435, 444 (3d Cir. 1999) (citations omitted).

Neither question is much disputed here. The IAA is a 

contract that calls for arbitrating the sort of claims pressed by 

Appellants. Instead, this appeal asks who is a party to the IAA 

and whose consent—Appellants’ or the Plan’s—is needed for 

arbitration. The answers turn on the claims Appellants assert 

and the ordinary meaning of ERISA.

A. ERISA Fiduciary Claims Give the Plan the Power of 

Consent

Begin, as courts have long done, with the text of the 

statute, reading the words as “generally . . . understood in their 

usual and most known signification” “to interpret the will of 

the legislat[ure].” 1 William Blackstone, Commentaries *59 

(George Sharswood ed., 1893). See also United States v. 

Fisher, 6 U.S. (2 Cranch) 358, 385 (1805) (Marshall, C.J.) 
7

(“That these words, taken in their natural and usual sense, 

would embrace the case before the court, seems not to be 

controverted.”); Brown v. Barry, 3 U.S. (3 Dall.) 365, 367 

(1797) (Ellsworth, C.J.) (“[T]he intention of the Legislature, 

when discovered, must prevail.”).

Section 502 of ERISA authorizes “a participant, 

beneficiary or fiduciary” to bring a civil action against a 

fiduciary “for appropriate relief under section 1109,” 29 U.S.C. 

§ 1132(a)(2), which imposes personal liability on a fiduciary 

“who breaches any of the responsibilities, obligations, or 

duties” it owes the plan, 29 U.S.C. § 1109(a).

5 This is one of 

several causes of action that Congress created to enforce the 

“minimum standards” established to “assur[e] the equitable 

character of [employee benefit] plans and their financial 

soundness.” Employee Retirement Income Security Act of 

1974, Pub. L. No. 93-406, § 2(a), 88 Stat. 829, 832–33 (1974).

ERISA also provides plan participants and beneficiaries 

“appropriate remedies, sanctions, and ready access to the 

Federal courts,” id. § 2(b), 88 Stat. at 833, to file a complaint 

on the plan’s behalf. But only for complaints filed on behalf of 

the plan.

So while § 502(a)(2) authorizes “recovery for fiduciary 

breaches that impair the value of plan assets in a participant’s 

5 Appellants also sued under § 502(a)(3), 29 U.S.C. § 

1132(a)(3), but “relief is not ‘appropriate’ under § 502(a)(3) if 

another provision [of ERISA] offers an adequate remedy,” 

LaRue v. DeWolff, Boberg & Assocs., Inc., 552 U.S. 248, 258 

(2008) (Roberts, C.J., concurring in part and concurring in the 

judgment) (citing Varity Corp. v. Howe, 516 U.S. 489, 515 

(1996)). As Appellants themselves recognized in their 

complaint, § 502(a)(2) provides such an adequate remedy.
8

individual account,” it “does not provide a remedy for 

individual injuries distinct from plan injuries.” LaRue v. 

DeWolff, Boberg & Assocs., 552 U.S. 248, 256 (2008). Instead, 

civil actions under § 502(a)(2) “for breach of fiduciary duty 

[are] brought in a representative capacity on behalf of the plan 

as a whole” to “protect contractually defined benefits.” Mass. 

Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 142 n.9, 148 (1985); 

In re Schering Plough Corp. ERISA Litig., 589 F.3d 585, 594 

(3d Cir. 2009) (“Section 502(a)(2) claims are, by their nature, 

plan claims.” (citing Graden v. Conexant Sys. Inc., 496 F.3d 

291, 295 (3d Cir. 2007))). Unsurprising, because it is the 

plan—and not the individual claimant—to whom the breaching

fiduciary owes its duty. See 29 U.S.C. § 1104 (a fiduciary must

“discharge [its] duties with respect to a plan solely in the 

interest of the participants and beneficiaries”); see also Russell, 

473 U.S. at 140. If the claimants are successful, “the plan takes 

legal title to any recovery, which then inures to the benefit of 

its participants and beneficiaries.” Graden, 496 F.3d at 295. All 

pointing to the plan, not the participants, as the relevant

contracting party. Cf. In re Schering Plough Corp. ERISA 

Litig., 589 F.3d at 594–95 (noting that a plan alone, and not an 

individual participant, has the power to release claims related 

to plan agreements).

Cases confirm that reading. Take Hawkins v. Cintas 

Corp., where individuals brought an ERISA suit against their 

former employer, its investment policy committee, and board 

of directors, alleging breaches of fiduciary duties. 32 F.4th 625 

(6th Cir. 2022). Must the plan arbitrate that claim? No, because 

the individual plaintiffs, not the plan, signed the arbitration 

agreement. And since “[t]he weight of authority and the nature 

of § 502(a)(2) claims suggest that these claims belong to the 

plan, not to individual [p]laintiffs,” the court ruled that “the 

arbitration provisions in [the plaintiffs’] individual 
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employment agreements—which only establish the 

[p]laintiffs’ consent to arbitration, not the plan’s—d[id] not 

mandate that the[] claims be arbitrated.” Id. at 627. So too 

Munro v. University of Southern California, 896 F.3d 1088 

(9th Cir. 2018). There, like in Hawkins, the individual plaintiffs 

consented to arbitration, but the plans they sued on behalf of 

had not. Id. at 1090–91. Similar facts bred a similar outcome: 

“Because the parties consented only to arbitrate claims brought 

on their own behalf, and because the [e]mployees’ present 

claims [we]re brought on behalf of the [p]lans,” the court 

concluded that the dispute fell “outside the scope of the 

agreements.” Id. at 1092. Both follow the best meaning of

§ 502(a)(2) to hold that the presence or absence of the 

individual claimants’ consent to arbitration is irrelevant; what 

counts is the contract created by the plan.

That proposition holds here. Whereas in Munro and 

Hawkins the plaintiffs had agreed to arbitrate and the plans had 

not, here the Plan agreed to arbitrate, not Appellants. The 

difference in direction does not change the result: the Plan’s 

agreement to arbitrate is what matters, and that agreement

applies to Appellants’ claims on the Plan’s behalf. See Russell, 

473 U.S. at 142 n.9; Graden, 496 F.3d at 295.

* * * 

Because Appellants’ claims belong to the Plan, the 

Plan’s consent to arbitrate controls. So we will affirm the 

District Court’s judgment.