[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-13643

____________________

JAIME PIZARRO, 

CRAIG SMITH,

on behalf of themselves 

and all others similarly situated, 

JERRY MURPHY,

RANDALL IDEISHI, 

GLENDA STONE, et al., 

Plaintiffs-Appellants,

GARTH TAYLOR, 

on behalf of themselves

and all others similarly situated, 

Plaintiff, 

versus

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THE HOME DEPOT, INC., 

THE ADMINISTRATIVE COMMITTEE OF THE HOME 

DEPOT FUTUREBUILDER 401(K) PLAN, 

THE INVESTMENT COMMITTEE OF THE HOME DEPOT 

FUTUREBUILDER 401(K) PLAN, 

Defendants-Appellees, 

FINANCIAL ENGINES ADVISORS, LLC, 

Defendants.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:18-cv-01566-SDG

____________________

Before BRANCH, GRANT, and ED CARNES, Circuit Judges.

GRANT, Circuit Judge:

The Employee Retirement Income Security Act of 1974 

requires fiduciaries administering employee-benefit plans to 

prudently investigate, choose, and monitor investments. 29 U.S.C. 

§ 1104(a)(1)(B). Fiduciaries who fall short can be removed. Id.

§ 1109(a). But where a breach of that duty causes monetary losses, 

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fiduciaries also face financial liability—they must “make good to 

such plan any losses to the plan resulting from each such breach.” 

Id. Recovery of damages under § 1109 thus hinges on two 

showings: a failure to prudently monitor, investigate, and evaluate 

investments, and a financial loss caused by that failure. 

This case presents two questions: which party has the 

burden to show loss causation, and how to meet that burden. The 

plaintiffs, a class of current and former Home Depot employees,

argue that the company failed to prudently manage its multibillion-dollar 401(k) retirement plan, resulting in excessive fees and

subpar returns. The district court found an issue of material fact 

on that duty-of-prudence question for all but one of the plaintiffs’ 

claims. But on the second element, loss causation, the answer was 

different—the court decided that the plaintiffs had not met their 

burden for any claims. Even if Home Depot did not appropriately 

monitor and evaluate the service providers’ fees and the plan’s 

investments, the court concluded, the plaintiffs had not shown that 

Home Depot’s investment choices were objectively imprudent. 

And that, in turn, meant that any losses to the plan were not caused 

by Home Depot’s failure to investigate. 

The plaintiffs say this approach is not correct—that the 

burden should be flipped, which means ERISA fiduciaries are 

required to show that their plans’ losses were caused by something 

other than their own failure to investigate and evaluate. In other 

words, show that the losses were not caused by their breach. 

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We cannot agree. Our prior precedent forecloses adopting 

this burden-shifting framework, as do ordinary principles of civil 

liability. Nor does ERISA’s text help the plaintiffs—it offers no 

indication that Congress intended to require defendant fiduciaries 

to disprove loss causation. 

The plaintiffs thus bore the burden, but they did not sustain 

it. ERISA requires a prudent process, but it does not guarantee 

good results. So to prove that losses were caused by a fiduciary’s 

breach, plaintiffs must show that a hypothetical prudent fiduciary, 

armed with the information a proper evaluation would have 

yielded, would not have made the same choices. The plaintiffs 

here have not done that—Home Depot’s investment decisions

were objectively prudent, whether or not it used the right process 

to evaluate and monitor them. We agree with the district court 

that the damages claims fail, and we affirm its well-reasoned order 

granting summary judgment to Home Depot.

I.

The Home Depot 401(k) Plan, called FutureBuilder, is a 

defined-contribution retirement plan. It is among the largest 401(k) 

plans in the United States, with about 230,000 participants and $9.1 

billion in assets as of year-end 2019. The plan is headed by two 

committees—the Investment Committee and the Administrative 

Committee—both appointed by The Home Depot, Inc.1 These 

1 This opinion refers to The Home Depot, Inc., the Administrative 

Committee, and the Investment Committee collectively as “Home Depot.”

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committees have broad duties, including selecting and monitoring 

investment options, retaining service providers, and monitoring 

expenses and fees.

During the class period, Home Depot engaged a number of 

service providers and advisors to help administer the plan. Three 

types of providers concern us here. First, Home Depot engaged a 

recordkeeper, responsible for administering participants’ accounts, 

maintaining plan records, processing individual transaction 

instructions, and sending disclosures. Second, Home Depot 

retained an investment consultant, which analyzed the plan’s 

investments, performance, and fees, and prepared discussion 

guides for the Committees’ meetings. And third, Home Depot 

hired a financial advisor to provide plan participants with 

investment advisory and managed account services. The identities 

of these service providers and their relationships to one another 

varied over time. Suffice it for now to state that these companies 

included Aon Hewitt, Aon Hewitt Investment Consultants, 

Financial Engines, Alight Solutions, and Alight Financial Advisors.

During the class period, the plan’s financial advisor 

automatically provided all participants with its basic advisory 

services, which included retirement investment resources (like 

projected total savings based on savings rate and retirement age), 

analysis of the plan’s investment options, and summaries of each 

participant’s account and forecasted value. Participants could also 

opt in to a managed account program, where the financial advisor 

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used algorithms to directly make investment decisions on each 

participant’s behalf.

For these services, the financial advisor charged two types of 

fees. The “plan access fee” was a flat dollar fee charged to all plan 

participants for the basic advisory services. The “professional 

management fee” was a tiered asset-based fee charged only to 

participants enrolled in the managed account program. While the 

parties agree on what the fees were during the class period, they 

hotly contest how these fees compared to others available in the 

marketplace.

Participants in Home Depot’s plan funded their individual 

accounts with deductions from their paychecks, plus matching 

funds contributed by the company. The participants (or the 

financial advisor, if the participant opted in to the managed account 

program) then chose from a menu of available funds curated by 

Home Depot. Four are at issue here.

The BlackRock family of target date funds, offered 

throughout the entire class period, was designed as a set of all-inone solutions for retirement investing. Each fund held an asset 

portfolio that was diversified based on targeted retirement dates by 

year; these funds automatically rebalanced their holdings on 

predetermined “glide paths” to retirement, becoming less risky as 

the participant’s retirement date approached. BlackRock’s suite of 

target date funds employed a more conservative glide path than 

most peer funds, meaning that they would be comparatively less 

risky at the same point in the lifecycle, but could also expect smaller 

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returns. The BlackRock funds were popular—many other Fortune 

500 companies’ 401(k) plans offered the same target date funds 

during the class period.

The JPMorgan Stable Value Fund, as the name suggests, was 

a fund designed to protect investors’ principal, earning consistent 

yet modest returns that would exceed those available from a 

money market account. This fund delivered on its promise, 

yielding positive returns to investors during the entire class period.

Finally, Home Depot offered two funds designed to invest 

mostly in small-capitalization companies with long-term growth 

potential. The TS&W Fund was added to the plan in 2009, and the 

Stephens Fund was introduced in 2013. After a rocky period of 

fluctuating performance, both plans were removed as options in 

2017.

In 2018, the plaintiffs filed a class action lawsuit against 

Home Depot, alleging two violations of ERISA’s fiduciary duty of 

prudence. First, they claimed that Home Depot failed to 

adequately monitor the fees charged by the plan’s financial advisor 

for its investment advisory and managed account services, 

resulting in excessive costs for plan participants. Second, they 

alleged that Home Depot failed to prudently evaluate the four 

challenged investment options, and that this failure led Home 

Depot to keep the funds available despite their subpar 

performance. The plaintiffs sought damages, equitable relief, and 

attorney’s fees. The district court certified a class of all participants 

in Home Depot’s 401(k) plan who either received advisory services 

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from the plan’s financial advisor or who invested in any of the 

challenged investment funds between April 12, 2012 and the date 

of the court’s judgment.

Following discovery and cross-motions for summary 

judgment, the district court concluded that several genuine 

disputes of material fact existed—whether Home Depot had 

complied with its duty of prudence while monitoring plan fees, as 

well as whether it had complied with that duty while monitoring 

three of the four challenged funds. But the court went on to find

that even if these disputes were resolved in the plaintiffs’ favor, 

they could not show that the violations had caused them any 

financial loss. And that meant they had no statutory right to 

monetary relief. In addition to finding an absence of loss causation, 

the district court also found no genuine dispute on whether Home 

Depot had prudently monitored the Stephens Fund. Finally, it 

ruled that the plaintiffs had forfeited their requests for equitable 

relief by failing to mount any arguments on that front at the 

summary judgment stage. This is the plaintiffs’ appeal.

II.

We review a district court’s grant of summary judgment de 

novo, viewing the evidence in the light most favorable to the 

nonmoving party and drawing all inferences in its favor. Baker v. 

Upson Reg’l Med. Ctr., 94 F.4th 1312, 1316–17 (11th Cir. 2024). 

“Summary judgment is appropriate only when there are no 

genuine issues of material fact, and the moving party is entitled to 

judgment as a matter of law.” Id. at 1317.

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Allocation of the burden of proof is a legal question 

reviewed by this Court de novo. Greenberg v. Comm’r, 10 F.4th 

1136, 1155 (11th Cir. 2021). “When the nonmoving party has the 

burden of proof at trial,” the party moving for summary judgment 

can proceed in one of two ways. United States v. Four Parcels of Real 

Prop., 941 F.2d 1428, 1437–38 (11th Cir. 1991) (en banc) (emphasis 

omitted). It “may show—that is, point out to the district court—

that there is an absence of evidence to support the nonmoving 

party’s case.” Id. at 1438 (alterations adopted and quotation 

omitted). “Alternatively, the moving party may support its motion 

for summary judgment with affirmative evidence demonstrating 

that the nonmoving party will be unable to prove its case at trial.” 

Id. “If the moving party shows the absence of a triable issue of fact 

by either method, the burden on summary judgment shifts to the 

nonmoving party, who must show that a genuine issue remains for 

trial.” Id. If the nonmoving party fails to make this showing, the 

moving party is entitled to summary judgment. Id.

III.

ERISA requires a fiduciary to act “with the care, skill, 

prudence, and diligence under the circumstances then prevailing 

that a prudent man acting in a like capacity and familiar with such 

matters would use in the conduct of an enterprise of a like 

character and with like aims.” 29 U.S.C. § 1104(a)(1)(B). This duty 

of prudence is objective, judged by the information available at the 

time of each investment decision—not by the glow of hindsight. 

Sacerdote v. New York Univ., 9 F.4th 95, 107 (2d Cir. 2021). The 

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inquiry centers not on the results of an investment, but on a 

fiduciary’s process for choosing that investment. Id.

Once a violation of this duty of prudence is shown, ERISA 

imposes a severe consequence—the fiduciary is personally liable 

for “any losses to the plan resulting from” the breach. 29 U.S.C. 

§ 1109(a). But the last words in this clause, “resulting from,”

impose an important limit on that liability—loss causation. So for 

a damages claim to succeed, the breach of fiduciary duty must 

proximately cause the plaintiffs’ losses. Willett v. Blue Cross & Blue 

Shield of Alabama, 953 F.2d 1335, 1343 (11th Cir. 1992).

This appeal raises two questions. First, who bears the 

ultimate burden of proof on loss causation? And second, what must 

be proven to establish that element?

A.

We begin with the burden of proof. The plaintiffs, along 

with the United States Secretary of Labor as amicus curiae, argue 

that once a plaintiff shows that a fiduciary breached the duty of 

prudence and that the plan suffered a loss, the burden shifts to the 

fiduciary to prove that the loss was not caused by its breach. They 

say this shift is necessary because the common law of trusts has an 

analogous requirement. For its part, Home Depot responds that 

ERISA does nothing to disrupt the ordinary expectation that 

plaintiffs must prove each element of their claims.

Our precedent already answers this question. ERISA does 

not impose a burden-shifting framework; instead, plaintiffs bear the 

ultimate burden of proof on all elements of their claims, including

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loss causation. In Willett v. Blue Cross & Blue Shield of Alabama, we 

stated—quite explicitly—that if the plaintiffs succeeded in showing 

a breach, “[o]n remand, the burden of proof on the issue of 

causation will rest on the beneficiaries; they must establish that 

their claimed losses were proximately caused” by that breach. 953 

F.2d at 1343. Though it offered little analysis, the case left no 

doubt—plaintiffs bear the burden.

The plaintiffs here cannot explain away Willett. They do try, 

pointing to a single line of that opinion, which notes that to obtain 

“a grant of summary judgment in its favor, [the fiduciary] would 

have had to establish the absence of causation by proving that the 

beneficiaries’ claimed losses could not have resulted from” its 

breach. Id. Well, yes. That is an ordinary summary judgment 

burden—showing that the other side cannot prove its case. To be 

fair, the Willett court could have been more artful in pointing out 

that a party who does not bear the burden of proof at trial can win 

summary judgment in two ways: with affirmative evidence 

showing that the other side cannot win, or by pointing out an 

absence of evidence supporting the other side’s claims. Four Parcels 

of Real Prop., 941 F.2d at 1437–38. But in context, the sentence 

plaintiffs highlight is best understood as noting the ordinary Rule 

56 summary judgment standard, that a party moving for summary 

judgment has the responsibility to show that the nonmoving 

party’s case cannot succeed at trial. Celotex Corp. v. Catrett, 477 U.S. 

317, 323 (1986); Clark v. Coats & Clark, Inc., 929 F.2d 604, 607–08

(11th Cir. 1991). That standard applies no matter who bears the 

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ultimate burden of proof. See Fitzpatrick v. City of Atlanta, 2 F.3d 

1112, 1115–16 (11th Cir. 1993).

So this Court has already settled the question—the burden 

of proving loss causation lies with the plaintiff. And though we are 

bound by the prior-panel precedent rule to enforce that holding, 

we also endorse it, offering here some of the reasoning we elided 

there. United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008).

As always, the “touchstone for determining the burden of 

proof under a statutory cause of action is the statute itself.” Thomas 

v. George, Hartz, Lundeen, Fulmer, Johnstone, King, & Stevens, P.A., 

525 F.3d 1107, 1110 (11th Cir. 2008). The text of ERISA imposes 

personal liability on a fiduciary only for damages “resulting from” 

its breach of duty. 29 U.S.C. § 1109(a). Proximate causation is the 

key link between a breach of duty and a recoverable loss. Willett, 

953 F.2d at 1343.

ERISA, like many other statutes, does not explicitly assign

the burden of proof on every issue—including loss causation. But 

the “ordinary default rule” is “that plaintiffs bear the burden of 

persuasion regarding the essential aspects of their claims.” Schaffer 

ex rel. Schaffer v. Weast, 546 U.S. 49, 56–57 (2005). Congress 

legislates against this default, so without any evidence that 

Congress intended to vary from it, “we will conclude that the 

burden of persuasion lies where it usually falls, upon the party 

seeking relief.” Id. at 57–58.

The ordinary rule resolves this case. Requiring a defendant 

to disprove causation so long as a plaintiff can show a breach and 

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some loss would turn the usual principles of civil liability on their 

head. If Congress had intended this departure from the norm, it 

could have said so; absent any affirmative indication to that end, 

we decline to impose it ourselves.2

To be sure, there are exceptions to this ordinary rule, but 

they do not apply here. The burden of proof can be shifted on 

specific elements if they can “fairly be characterized as affirmative 

defenses or exemptions.” Id. at 57. Such shifts occur because those 

who invoke “a special exception to the prohibitions of a statute” 

ordinarily bear “the burden of proving justification.” FTC v. Morton 

Salt Co., 334 U.S. 37, 44–45 (1948). Here, though, causation is not 

an affirmative defense; it is an element of the plaintiff’s claim. It is 

no surprise, then, that none of the textual or structural indications 

suggesting that an element is an affirmative defense or an 

2 The Tenth Circuit also rejects a burden-shifting framework for the element 

of loss causation. Pioneer Ctrs. Holding Co. Emp. Stock Ownership Plan & Tr. v. 

Alerus Fin., N.A., 858 F.3d 1324, 1337 (10th Cir. 2017). The Sixth, Seventh, and 

Ninth Circuits too have stated that plaintiffs bear the burden of proving loss 

causation, though without commenting on the burden-shifting argument. 

Saumer v. Cliffs Nat. Res. Inc., 853 F.3d 855, 863 (6th Cir. 2017); Peabody v. Davis, 

636 F.3d 368, 373 (7th Cir. 2011); Wright v. Oregon Metallurgical Corp., 360 F.3d 

1090, 1099 (9th Cir. 2004). The First, Fourth, Fifth, and Eighth Circuits, on the 

other hand, shift the burden of proof on causation to the defendants. 

Brotherston v. Putnam Invs., LLC, 907 F.3d 17, 35–39 (1st Cir. 2018); Tatum v. RJR 

Pension Inv. Comm., 761 F.3d 346, 361–63 (4th Cir. 2014); McDonald v. Provident 

Indem. Life Ins., 60 F.3d 234, 237 (5th Cir. 1995); Martin v. Feilen, 965 F.2d 660, 

671 (8th Cir. 1992). Finally, the Second Circuit has published opinions 

endorsing both approaches. Compare Silverman v. Mut. Benefit Life Ins., 138 F.3d 

98, 104 (2d Cir. 1998), with Sacerdote, 9 F.4th at 113.

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exemption are present here. See United States v. Kloess, 251 F.3d 941, 

944–46 (11th Cir. 2001). Indeed, the plaintiffs do not suggest 

otherwise. Put simply, it is “impossible to look at the text and 

structure of” ERISA and § 1109(a) and conclude loss causation is 

anything other than a core element of a plaintiff’s case. Meacham v. 

Knolls Atomic Power Lab’y, 554 U.S. 84, 93 (2008).

Nor does the common law of trusts provide a lifeline for 

those who wish to shift the burden. It is true—in “determining the 

contours of an ERISA fiduciary’s duty, courts often must look to 

the law of trusts.” Tibblev. Edison Int’l, 575 U.S. 523, 528–29 (2015). 

And at least some authorities say that at common law, “when a 

beneficiary has succeeded in proving that the trustee has 

committed a breach of trust and that a related loss has occurred, 

the burden shifts to the trustee to prove that the loss would have 

occurred in the absence of the breach.” Restatement (Third) of 

Trusts § 100 cmt. f (Am. L. Inst. 2012).3 One justification for this 

rule is “the trustee’s superior (often, unique) access to information 

about the trust and its activities.” Id.

But ERISA is not the common law. It is a complex statutory 

scheme, and this Court has long “reject[ed] the unselective 

incorporation of trust law rules into ERISA.” Useden v. Acker, 947 

F.2d 1563, 1581 (11th Cir. 1991); see also Moore v. Am. Fed’n of 

3 Home Depot identifies sources from the time of ERISA’s passage that 

disagree, rejecting a burden-shifting rule. Because we find that ERISA did not 

adopt such a rule, we need not decide whether it existed in the background 

common law of trusts to begin with.

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Television & Radio Artists, 216 F.3d 1236, 1244 n.17 (11th Cir. 2000). 

Our responsibility is always “to give effect to the plain meaning of 

the statute” first. Moore, 216 F.3d at 1244 n.17. “ERISA is a 

comprehensive and reticulated statute, bearing the marks of 

circumspect drafters.” Useden, 947 F.2d at 1581 (quotation 

omitted). “[W]hile it is obvious that ERISA is informed by trust 

law, the statute is, in its contours, meaningfully distinct from the 

body of the common law of trusts.” Id. We therefore proceed 

carefully, and “only incorporate a given trust law principle if the 

statute’s text negates an inference that the principle was omitted 

deliberately from the statute.” Id.

Here, the statute lacks any language suggesting that 

Congress’s omission of trust law’s burden-shifting framework for 

loss causation was anything but deliberate. And the plaintiffs’ 

rationale for burden shifting—the informational advantages of 

trustees over beneficiaries—does not cleanly apply to ERISA. 

ERISA imposes on fiduciaries a comprehensive scheme of 

mandatory disclosure and reporting, both to plan participants and 

to the public at large. See 29 U.S.C. §§ 1021–32. The statute itself 

thus enforces a suite of requirements mitigating the informational 

advantage imputed to the trustee at common law. These 

disclosures, combined with the “proper use of discovery tools,” 

mean that ERISA fiduciaries lack the informational advantage that 

would justify shifting the burden of proof. Thomas, 525 F.3d at 

1113–14; see also Schaffer, 546 U.S. at 60–61. So ERISA’s text, if 

anything, suggests that Congress dealt with the information 

imbalance problem by shrinking the gap, not shifting the burden.

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In sum, “where Congress does not squarely address the 

question, where the statute’s structure and language do not suggest 

a shift of the burden to the defendant,” and “where plaintiffs are 

not peculiarly at a disadvantage in the discovery of necessary facts, 

we will not shift the burden of proof, or any element thereof, to 

the defendant.” Thomas, 525 F.3d at 1114. As Willett has already 

provided, and as we elaborate today, plaintiffs must prove loss 

causation for an ERISA breach-of-fiduciary-duty claim under 

§ 1109(a).

B.

Now that we know who has the burden of proving loss 

causation—the plaintiffs—the next question is what will satisfy that 

burden. A fiduciary’s breach of its duty to prudently evaluate and 

monitor a plan’s investments does not automatically result in a loss 

because an imprudent process can sometimes yield a prudent 

investment. That may happen, as then-Judge Scalia vividly put it, 

“through prayer, astrology or just blind luck.” Fink v. Nat’l Sav. & 

Tr. Co., 772 F.2d 951, 962 (D.C. Cir. 1985) (Scalia, J., concurring in 

part and dissenting in part). And even an “objectively prudent” 

investment can sometimes turn out to be a losing one. Id. So 

liability turns not only on an imprudent process, but also on that 

process resulting in an imprudent investment. In other words, 

losses are only compensable if they are caused by a fiduciary’s bad 

decisions rather than by the usual vagaries of the market. 

To recover damages then, plaintiffs must show that the 

investments made were not objectively prudent. That means they 

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must have fallen outside the “range of reasonable judgments a 

fiduciary may make based on her experience and expertise,” such 

that a hypothetical prudent fiduciary in the same circumstances as 

the defendant, armed with the information that a proper 

evaluation would have yielded, would not (or could not) have 

made the same choice. Hughes v. Nw. Univ., 595 U.S. 170, 177 

(2022).

Our standard recognizes the fact-laden, judgment-heavy 

nature of investment decisions. An ERISA fiduciary’s management 

of an employee-benefit plan does not consist of a series of yes-orno, up-or-down choices in a vacuum. In any single set of 

circumstances, there might be—indeed, likely will be—many 

objectively prudent choices a fiduciary could make. ERISA 

recognizes that managing an employee-benefit plan “will implicate 

difficult tradeoffs” yielding a range of reasonable options. Id. No 

one—not even the most diligent fiduciary—can predict the future. 

Different prudent fiduciaries, facing the same set of circumstances, 

can exercise their judgment and reach different conclusions in light 

of that uncertainty.

The parties spill considerable ink arguing about semantics—

whether an objectively prudent investment is one that a 

hypothetical prudent fiduciary “would have” also made, or 

whether it is one that such a fiduciary “could have” also made. This 

mirrors the debate in the Fourth Circuit’s decision in Tatum v. RJR 

Pension Investment Committee, 761 F.3d 346 (4th Cir. 2014). There,

the majority said “would,” while the district court said “could.” Id. 

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at 363–66. But here, the would-versus-could debate is a sideshow. 

See id. at 377 (Wilkinson, J., dissenting) (criticizing the 

would/could debate as “semantics at its worst”). That’s because 

Tatum shifted the burden of proving loss causation onto the 

fiduciary, while we keep that burden with the plaintiffs. Id. at 363

(majority opinion). There is a real difference between requiring 

proof that a reasonable fiduciary “would have” picked the same 

investment versus requiring proof that it “could have” done so.4 

But that gap does not hold up when plaintiffs have the burden—if 

a plaintiff shows that a hypothetical prudent fiduciary “could not 

have” made the same choice as the defendant, she has also shown 

that a hypothetical prudent fiduciary “would not have” made the 

same choice, and vice versa. It is simply an imprudent choice. 

In sum, to succeed on a breach-of-fiduciary-duty claim, a 

plaintiff must convince a factfinder that the fiduciary’s choice was 

4 For what it is worth, we agree with Judge Wilkinson’s dissent that requiring 

a defendant to prove that a hypothetical prudent fiduciary would have also 

made the same choice “ignore[s] the fact that there is not one and only one 

‘same decision’ that qualifies as objectively prudent.” Tatum, 761 F.3d at 378 

(Wilkinson, J., dissenting). To illustrate, imagine that, faced with a particular 

decision, there are three (and only three) reasonable investment choices: A, B, 

and C. By our read, the Tatum majority’s rule requires a fiduciary who chose 

A to show that each and every other prudent fiduciary would have also chosen 

A, even though B and C were also prudent choices. Because a fiduciary will 

not be able to make that showing, the Tatum rule would impose liability on a 

fiduciary even though it made an objectively prudent choice—completely 

contrary to ERISA’s loss causation requirement.

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objectively unreasonable—that it was not one that a prudent 

fiduciary would also have made.

IV.

We now apply that legal standard. The plaintiffs advance 

two discrete claims on appeal. First, the plan’s financial advisor—

Financial Engines until 2017, Alight Financial Advisors after that—

charged Home Depot excessive fees.5 And second, Home Depot 

should have dropped four funds after they underperformed 

alternative investment options and certain market benchmarks. 

Viewing the evidence in the light most favorable to the plaintiffs,

and drawing all reasonable inferences in their favor, the plaintiffs

have not shown a genuine dispute of material fact on loss causation 

for either of their claims.

A.

We start with fees. As we have said, Home Depot paid two 

types of fees over the class period, first to Financial Engines and 

then to Alight Financial Advisors: plan access fees and professional 

management fees. Plaintiffs challenge only the prudence of the 

latter. Home Depot negotiated and secured several decreases over 

the years in the professional management fee. The fee dropped in 

2014 and again in 2017 before a broader overhaul in 2021 resulted 

5 In 2017, Alight Financial Advisors became the plan’s direct financial advisor. 

It took over the managed account services, but Financial Engines continued 

to provide investment advice to plan participants as a subcontractor for Alight 

Financial Advisors.

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in new asset thresholds and fees for the tiers.6 These decreases, 

however, are not enough to show that the fees were objectively 

prudent throughout the class period. The plaintiffs’ evidence that 

they were not falls into three buckets.

The first is that competitors of Financial Engines and Alight 

Financial Advisors charged lower fees for comparable services. But 

assuming that’s true, simply showing that there were other 

reasonable choices does not mean that retaining Financial Engines 

and Alight Financial Advisors was not also reasonable, given the 

Home Depot plan’s size and goals. In fact, Financial Engines was 

the most popular service provider for 401(k) plans of similar size 

and complexity to Home Depot’s. That many other sophisticated 

investment professionals managing similarly sized plans made the 

same choice as Home Depot suggests objective prudence; it is 

direct evidence that other fiduciaries “acting in a like capacity and 

familiar with such matters” made the same choice “in the conduct 

of an enterprise of a like character and with like aims.” 29 U.S.C. 

§ 1104(a)(1)(B); see Pfeil v. State St. Bank & Tr. Co., 806 F.3d 377, 388 

(6th Cir. 2015). Such evidence is not dispositive on its own, of 

course, and other evidence can show that a popular choice was still 

imprudent. The problem for the plaintiffs is that they cannot make 

that showing here.

The plaintiffs identify other service providers that compete 

with Financial Engines and Alight Financial Advisors, but that 

6 We previously granted Home Depot’s unopposed motion to file proprietary 

pricing information under seal.

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effort is fundamentally flawed. Though the plaintiffs’ chosen 

comparators also offer advisory and managed account services, 

ERISA requires a more granular analysis tailored to a plan’s 

“character” and “aims.” 29 U.S.C. § 1104(a)(1)(B). “[N]othing in 

ERISA requires every fiduciary to scour the market to find and offer 

the cheapest possible fund [or service provider] (which might, of 

course, be plagued by other problems).” Hecker v. Deere & Co., 556 

F.3d 575, 586 (7th Cir. 2009), abrogated on other grounds by Hughes, 

595 U.S. 170.

The competitors that have been identified differ in key 

respects that make it impossible for the plaintiffs to show at trial 

that no prudent fiduciary in Home Depot’s shoes would have 

chosen the financial advisors it did. We have already noted that 

Financial Engines was the leading service provider to large plans 

like Home Depot’s. It also offered preexisting integration with 

Home Depot’s recordkeeper, Aon Hewitt (later rebranded as 

Alight Solutions). So did Alight Financial Advisors, a wholly owned 

subsidiary of Alight Solutions. Other firms Home Depot could 

have selected were smaller or lacked the seamless integration with 

Aon Hewitt’s website and services that Financial Engines and 

Alight Financial Advisors offered. The plaintiffs offer no evidence 

that a hypothetical prudent fiduciary managing Home Depot’s 

401(k) plan—among the largest in the nation—would have 

considered its financial advisors’ fees unreasonable in comparison 

to their competitors given their large capacity, experience with 

similarly sized plans, and integration with Home Depot’s 

recordkeeper.

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22 Opinion of the Court 22-13643

The plaintiffs’ next argument is that Financial Engines and 

Alight Financial Advisors charged higher fees to Home Depot than 

they did to other comparable clients. This point is fiercely 

contested by Home Depot, and the parties disagree about whether 

Home Depot’s fees should be calculated by dollars per participant 

or basis points, as well as which plans served by Financial Engines 

and Alight Financial Advisors are an appropriate baseline for 

comparison.7 But even taking the plaintiffs’ preferred approach for 

both variables—which unsurprisingly produces the worst outcome 

for Home Depot—the record shows that Home Depot’s top-tier 

fee, measured in basis points, is by no means an outlier when 

compared to other plans with roughly the same assets. The fee the 

plaintiffs highlight, charged to more than 90 percent of participants, 

was at or better than the median in two years during the class 

period, and was never worse than the second quintile. The fees for 

half of all plans will, by definition, be worse than the median; a fee 

somewhat higher than median in a handful of years during the class 

period is a far cry from being such an objectively unreasonable 

charge for the providers’ services that a prudent fiduciary would 

not have stayed the course.

Every other comparison results in a better—much better—

outlook for Home Depot. In terms of dollars per participant, 

Home Depot paid lower fees to Financial Engines and Alight 

Financial Advisors than 96 percent of all other plans in every year 

during the class period. And in terms of basis points, the top-tier 

7 A “basis point” is equal to one one-hundredth of one percent (0.01%).

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fee charged to Home Depot was equal to or lower than the top-tier 

fee of at least half of all other plans in every year during the class 

period. In the end, no matter how the evidence is evaluated, there 

is no triable issue of fact on the objective prudence of the fees 

charged by Home Depot’s financial advisors.

The plaintiffs’ last contention is that the fees were excessive 

because they were inflated by a kickback paid by Financial Engines 

to the plan’s recordkeeper, Aon Hewitt. Home Depot, they now 

argue, was imprudent for failing to recoup the value of this 

payment from Financial Engines. But the plaintiffs never raised 

this theory below—instead, they argued at summary judgment 

only that Home Depot was imprudent for failing to recoup the 

alleged kickback from Aon Hewitt. The district court granted Home 

Depot summary judgment on this claim, concluding that the 

plaintiffs had failed to plead it in their complaint. The plaintiffs do 

not challenge that determination on appeal; instead, they try to 

sidestep that ruling by recharacterizing the alleged kickback 

scheme as evidence that the fees charged by Financial Engines were 

excessive. Because they did not make this argument at summary 

judgment, we will not consider it for the first time on appeal. T.R. 

ex rel. Brock v. Lamar Cnty. Bd. of Educ., 25 F.4th 877, 884–85 (11th 

Cir. 2022).

B.

We turn next to the plaintiffs’ claims that Home Depot 

should have dropped four specific funds from its 401(k) plan. At 

the outset, we note that the plaintiffs’ attacks on the four funds 

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suffer from a common flaw—the principal evidence is drawn only 

from short time periods during which the funds underperformed 

their peers. A few here-and-there years of below-median returns, 

however, are not a meaningful way to evaluate a plan’s success as 

a long-term investment vehicle. The plaintiffs, in other words,

cannot show that a fund is objectively imprudent by just “pointing 

to another investment that has performed better in a five-year 

snapshot of the lifespan of a fund that is supposed to grow for fifty 

years.” Smith v. CommonSpirit Health, 37 F.4th 1160, 1166 (6th Cir. 

2022); see also Jenkins v. Yager, 444 F.3d 916, 925–26 (7th Cir. 2006). 

In fact, selling a fund too soon because of disappointing short-term 

losses “is one of the surest ways to frustrate the long-term growth 

of a retirement plan.” Smith, 37 F.4th at 1166.

Getting to the specifics, we start with BlackRock. The 

plaintiffs argue that the BlackRock target date funds 

underperformed their peers, focusing on the third quarter of 2013. 

The first problem is that, qualitatively, these funds were popular 

options offered by other employers’ plans of comparable size and 

complexity, and consistently received positive ratings from 

industry analysts.

Quantitatively, the plaintiffs fare no better. They argue that 

the BlackRock funds underperformed both the median target date 

fund in the market and the specific target date funds their expert 

selected. As the district court found, these are “apples and 

oranges.” Target date funds are not all created equal—funds from 

different sponsors may have different glide paths, which means 

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they also have different risk-return profiles. In years when the 

equity market is hot, a more aggressive target date fund that retains 

equities longer will appear to outperform a fund that shifts toward 

more conservative assets like bonds sooner. But that snapshot does 

not mean it is objectively imprudent to adopt a more conservative 

strategy—the tables turn when the market is down.

When adjusting for these different glide path choices, the 

BlackRock target date funds’ returns matched those of their peers

and market benchmarks almost perfectly. Home Depot’s 

investment consultant, Aon Hewitt Investment Consultants,

benchmarked each fund against a custom index created by 

BlackRock that weighted the universe of comparison target date 

funds against the glide path allocation of BlackRock’s offerings, 

creating an apples-to-apples comparison. BlackRock’s target date 

funds’ three- and five-year returns closely matched these custom 

indexes throughout the entire class period.8 ERISA does not 

require that fiduciaries choose the maximally aggressive option in 

each investment class; the plaintiffs cannot show that a prudent 

fiduciary would not have also retained these funds in light of Home 

Depot’s investment objectives.

8 Even this comparison slightly underrates the BlackRock target date funds 

because the funds’ actual performance is reported net of investment 

management fees, while it is generally not possible to obtain the returns of the 

idealized comparison benchmark without paying any transaction or 

management fees.

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The plaintiffs’ arguments about the JPMorgan Stable Value 

Fund suffer from a similar problem. That fund’s principal objective 

was capital preservation—which it achieved by delivering positive 

returns in every year during the class period. It outperformed its 

benchmark (an index tracking the three-month treasury bill rate) 

on a one-, three-, five-, and ten-year basis for the entire class period, 

with just a single exception: the one-year return ending in the 

fourth quarter of 2019 missed its benchmark by two basis points

(0.02%). With the exception of a handful of quarters at the 

beginning of the class period, it also consistently outperformed the 

benchmarks selected for it by Aon Hewitt Investment Consultants.

The plaintiffs’ arguments that the JPMorgan fund was 

objectively imprudent depend on changing the index against which 

the fund was benchmarked. But whether an investment is 

objectively imprudent must be assessed against the actions of a 

hypothetical prudent fiduciary with “like aims.” 29 U.S.C. 

§ 1104(a)(1)(B). We cannot say “that a plan fiduciary’s choice of 

benchmark, where such a benchmark is fully disclosed to 

participants, can be imprudent by virtue of being too 

conservative.” Ellis v. Fid. Mgmt. Tr. Co., 883 F.3d 1, 10 (1st Cir. 

2018). Home Depot offered the stable value fund because it was 

conservative, advertised it as conservative, and benchmarked it

against a conservative metric. Because the fund met the 

expectations set for it, the plaintiffs’ breach-of-fiduciary-duty claim 

relying on comparisons to other, more aggressive benchmarks fail.

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As for the TS&W Small Cap Value Fund, the plaintiffs 

marshalled no evidence beyond a few years of underperformance 

to show that retaining these funds was not objectively prudent. 

Again, short periods of relative underperformance alone do not 

meet a plaintiff’s burden to establish objective imprudence. The 

TS&W fund serves as an object lesson in why: the plaintiffs criticize 

Home Depot for not removing that fund in the second quarter of 

2012. At that point, its three- and five-year returns had 

underperformed the fund’s peers for a handful of quarters, with its 

three-year returns ranking as low as the 99th percentile in its peer 

group. Its three-year return (though not its five-year return) had 

also consistently trailed its benchmark index. By the first quarter 

of 2015, however, the fund’s three- and five-year returns had 

dramatically rebounded—after that, it significantly outperformed 

its benchmark and ranked among the very top funds in its peer 

group. Later, the fund’s performance declined again relative to its 

peers before Home Depot dropped it from the plan. Plaintiffs 

argue that any data past the second quarter of 2012 is irrelevant, 

but these metrics show that the objective prudence of a long-term 

retirement option cannot be measured only by referencing shortterm shifts in the market.

Lastly, the Stephens Fund. Here too the plaintiffs attack the 

fund using only a few years of underperformance, but unlike for 

the other three funds, the district court found no genuine dispute 

of material fact about the prudence of Home Depot’s monitoring 

process. We affirm that conclusion too.

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ERISA fiduciaries must give “appropriate consideration to 

those facts and circumstances that” they “know[] or should know 

are relevant to the particular investment or investment course of 

action involved.” 29 C.F.R. § 2550.404a-1(b)(1)(i). And they must 

“conduct their own independent evaluation to determine which 

investments may be prudently included in the plan’s menu of 

options.” Hughes, 595 U.S. at 176. “If the fiduciaries fail to remove 

an imprudent investment from the plan within a reasonable time,

they breach their duty.” Id.; see also GIW Indus., Inc. v. Trevor, 

Stewart, Burton & Jacobsen, Inc., 895 F.2d 729, 732–33 (11th Cir. 

1990). The “content of the duty of prudence turns on the 

circumstances prevailing at the time the fiduciary acts,” so the 

inquiry is necessarily “context specific.” Fifth Third Bancorp v. 

Dudenhoeffer, 573 U.S. 409, 425 (2014) (alteration adopted and 

quotation omitted).

Home Depot added the Stephens Fund to its plan in late2013 and removed it about four years later. Throughout this 

period, Home Depot scrutinized the fund’s performance—the 

Investment Committee’s meeting minutes show that it received 

briefings on the fund’s performance from Aon Hewitt Investment 

Consultants as well as directly from the fund’s managers. The 

plaintiffs complain that Home Depot should not get off the hook 

for “passively accept[ing]” Aon Hewitt’s advice, but the record 

shows that Home Depot did anything but. It asked Aon Hewitt 

several times whether the fund’s disappointing returns in the short 

term justified its continued inclusion in the plan. While Aon 

Hewitt counseled continued patience, Home Depot removed the 

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fund. On this record, there is no genuine dispute of material fact 

on the prudence of Home Depot’s monitoring process for the 

Stephens Fund.

In sum, the plaintiffs failed to offer enough evidence to show 

that the four challenged funds were objectively imprudent 

investments, or that Home Depot violated its duty of prudence 

while monitoring the Stephens Fund. They thus cannot succeed 

on their breach-of-fiduciary-duty claims.

V.

Finally, we agree with the district court that the plaintiffs 

forfeited their claims for equitable relief. The district court is not 

required to “distill every potential argument that could be made 

based upon the materials before it on summary judgment.” Resol.

Tr. Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (en 

banc). Instead, it is up to the parties to formulate their 

arguments—grounds not relied on at summary judgment are 

abandoned. Id.; see also Rd. Sprinkler Fitters Loc. Union No. 669 v. 

Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir. 1994).

Home Depot’s motion put the plaintiffs on notice that the 

company sought summary judgment on “all claims asserted by 

Plaintiffs.” Had the plaintiffs contended that Home Depot’s 

arguments did not defeat their entitlement to equitable relief, the 

district court would have had the opportunity to evaluate those 

arguments in the first instance—and we would have a reasoned 

decision to review.

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But that is not what happened. The plaintiffs did not make 

any equitable relief arguments below; the only mention of 

equitable relief in any of their summary judgment papers was a 

perfunctory reference to its availability in the legal standard section 

of the opposition brief. The plaintiffs therefore forfeited any such 

claims.

* * *

ERISA tasks fiduciaries with prudently administering the 

employee-benefit plans under their charge. Here, the plaintiffs 

cannot show that a prudent fiduciary in the same position as Home 

Depot would have made different choices on either the plan’s 

service providers or the four challenged funds. We therefore

AFFIRM the district court’s grant of summary judgment to Home 

Depot.

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