FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TOMMIE GLANTON, on behalf of 

ALCOA Prescription Drug Plan

and all other similarly situated No. 04-15328 plans, et al.; TARA MACKNER, on

behalf of the KMART D.C. Nos.

COMPREHENSIVE HEALTH PLAN,  CV-02-00507-SRB

Plaintiffs-Appellants, CV-03-00607-SRB

v. OPINION

ADVANCEPCS INC.,

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Arizona

Susan R. Bolton, District Judge, Presiding

Argued and Submitted

October 18, 2005—San Francisco, California

Filed October 17, 2006

Before: Alex Kozinski and Ferdinand F. Fernandez,

Circuit Judges, and Terry J. Hatter, Jr.,* District Judge.

Opinion by Judge Kozinski

*The Honorable Terry J. Hatter, Jr., Senior United States District Judge

for the Central District of California, sitting by designation. 

17579
COUNSEL

Stephen J. Herman, Herman Mathis Casey Kitchens & Gerel,

LLP, New Orleans, Louisiana; David S. Casey, Jr., Herman

Mathis Casey Kitchens & Gerel, LLP, San Diego, California;

Mary E. Alexander, Mary Alexander & Associates, San Francisco, California, for the plaintiff-appellant. 

Paul J. Ondrasik, Jr., Martin D. Schneiderman, Eric G. Serron, Steptoe & Johnson LLP, Washington, D.C.; Peter S.

17582 GLANTON v. ADVANCEPCS INC.
Kozinets, Steptoe & Johnson LLP, Phoenix, Arizona, for the

defendant-appellee. 

Howard M. Radzely, Solicitor of Labor, Timothy D. Hauser,

Associate Solicitor, Elizabeth Hopkins, Counsel for Appellate

and Special Litigation, Mary F. Williams, Trial Attorney, for

amicus Secretary of the United States Department of Labor,

Washington, D.C. 

Douglas K. deVries, deVries Law Firm, Sacramento, California; Ronald Dean, Pacific Palisades, California; Amy Bach,

United Policyholders, San Francisco, California, for amicus

United Policyholders. 

OPINION

KOZINSKI, Circuit Judge: 

We consider whether prescription drug plan participants

who have suffered no judicially cognizable injury may sue

their plans’ fiduciaries under the Employee Retirement

Income Security Act of 1974 (“ERISA”). 

Facts

AdvancePCS is a pharmacy benefits management company

(PBM). PBMs manage prescription drug benefit programs and

seek to reduce their clients’ drug costs by pooling claims and

negotiating volume discounts with pharmaceutical companies.

Among AdvancePCS’s clients are employee welfare benefit

plans sponsored by ALCOA and K-Mart. 

When AdvancePCS receives a prescription from one of the

plan participants, it decides whether to buy the drug (preferably from a seller with whom it has negotiated a discount),

reject the claim or switch the participant to another drug.

GLANTON v. ADVANCEPCS INC. 17583
AdvancePCS pays for the drugs with plan assets after

accounting for the participant’s co-payment. Plaintiffs allege

that, in addition to earning fees from the plans, AdvancePCS

has secretly been keeping the spread between what it charges

the plans for drugs and what it pays suppliers—a practice

plaintiffs claim violates ERISA. 

Plaintiff Tommie Glanton works for ALCOA and is a

member of its prescription drug plan. Plaintiff Tara Mackner

was a member of the K-Mart plan, but ceased working for KMart after the suit was filed and thus no longer participates in

its plan.1

Plaintiffs sued AdvancePCS under ERISA for breach of

fiduciary duty. The district court found that plaintiffs lacked

standing. Plaintiffs appeal. 

Analysis

[1] 1. ERISA authorizes plan participants to sue fiduciaries for losses the plan suffers from a breach of their duties.

29 U.S.C. §§ 1109, 1132(a). A plan fiduciary is defined as

anyone who exerts “any discretionary authority . . . respecting

management of such [a] plan.” 29 U.S.C. § 1002(21)(A). 

[2] AdvancePCS easily fits this definition. In choosing

whether to fill a prescription or shift a participant to a different drug, it exercises discretion over the plans’ assets. While

AdvancePCS is not named as a plan fiduciary, the applicable

section of ERISA makes no distinction between named and

unnamed fiduciaries. See 29 U.S.C. § 1002(21)(A); see also

Kayes v. Pac. Lumber, 51 F.3d 1449, 1458-61 (9th Cir. 1995).

It follows that plaintiffs here are authorized to sue

AdvancePCS for breach of fiduciary duty. 

1The parties dispute whether Mackner lost whatever standing she had

when she stopped working for K-Mart. Because we conclude that Mackner lacked standing in the first place, we do not reach this question. 

17584 GLANTON v. ADVANCEPCS INC.
[3] 2. Plaintiffs, nevertheless, cannot proceed unless they

have Article III standing. See Raines v. Byrd, 521 U.S. 811,

820 n.3 (1997). They claim to meet the traditional standing

requirements outlined by Lujan v. Defenders of Wildlife, 504

U.S. 555 (1992). Alternatively, they contend that they have

standing as congressionally authorized representatives of the

injured plans. 

[4] To establish standing under Lujan, plaintiffs must show

a likelihood that the injury they have suffered will be

redressed by a favorable outcome to the litigation. Id. at 560-

62. Plaintiffs don’t claim they were denied benefits or

received inferior drugs. Rather, they claim that AdvancePCS

charged the plans too much for drugs, and that this caused the

plans to demand higher co-payments and contributions from

participants. Plaintiffs claim that, if their suit is successful, the

plans’ drug costs will decrease, and that the plans might then

reduce contributions or co-payments. But nothing would force

ALCOA or K-Mart to do this, nor would any one-time award

to the plans for past overpayments inure to the benefit of participants. ALCOA and K-Mart would be free to reduce their

contributions or cease funding the plans altogether until any

such funds were exhausted. There is no redressability, and

thus no standing, where (as is the case here) any prospective

benefits depend on an independent actor who retains “broad

and legitimate discretion the courts cannot presume either to

control or to predict.” ASARCO, Inc. v. Kadish, 490 U.S. 605,

615 (1989) (opinion of Kennedy, J.); see also Fernandez v.

Brock, 840 F.2d 622, 627 (9th Cir. 1988). 

Other circuits that have considered this issue have reached

the same conclusion. See Cent. States Se. & Sw. Areas Health

& Welfare Fund v. Merck-Medco Managed Care, 433 F.3d

181, 201 (2d Cir. 2005); Horvath v. Keystone Health Plan E.,

333 F.3d 450, 455 (3d Cir. 2003); Harley v. Minnesota Mining & Mfg., 284 F.3d 901, 906 (8th Cir. 2002). 

[5] We therefore turn to plaintiffs’ argument that they have

standing to bring this lawsuit as representatives of the plan.

GLANTON v. ADVANCEPCS INC. 17585
Plaintiffs rely heavily on Vermont Agency of Natural

Resources v. United States ex rel. Stevens, 529 U.S. 765

(2000), which upheld qui tam actions against an Article III

standing challenge. Relators in qui tam actions are congressionally authorized to sue for redress of injuries suffered by

the United States. Qui tam plaintiffs retain a percentage of the

recovery; the rest goes to the United States. The issue in Vermont Agency was whether the fact that qui tam plaintiffs have

suffered “no . . . invasion” of any “legally protected right”

precludes them from having Article III standing. Id. at 772-

73. 

[6] The Court concluded that the False Claims Act (FCA)

“can reasonably be regarded as effecting a partial assignment

of the Government’s damages claim” to the relator, and that

an “adequate basis for the relator’s suit [could be found] in

the doctrine that the assignee of a claim has standing to assert

the injury in fact suffered by the assignor.” Id. at 773. The

Court noted “the long tradition of qui tam actions in England

and the American Colonies,” and that it has “routinely” entertained suits by assignees. Id. at 773-74. 

[7] We find the qui tam analogy inapt. Whereas qui tam

actions have existed for centuries, there is no similar tradition

of unharmed ERISA beneficiaries bringing suit on behalf of

their plans.2 More importantly, the FCA assigns relators a

concrete stake in qui tam cases by giving them a piece of the

action. Id. at 772. ERISA gives plan beneficiaries nothing;

any monetary recovery goes to the plans—as would the benefits of any injunctive relief.3

2Traditionally, trust law, on which ERISA is based, does not allow beneficiaries to bring suit on behalf of the trust. See Restatement (Second) of

Trusts § 214 cmt. b. (“A particular beneficiary cannot maintain a suit for

a breach of trust which does not involve any violation of duty to him.”).

3Plaintiffs point to language in Vermont Agency that they claim supports

their position: “It would perhaps suffice to say that the relator here is simply the statutorily designated agent of the United States.” 529 U.S. at 772

17586 GLANTON v. ADVANCEPCS INC.
Plaintiffs argue, more generally, that “representative damages litigation is common—from class actions under Fed. R.

Civ. P. 23(b)(3) to suits by trustees representing hundreds of

creditors in bankruptcy to parens patriae actions by state government to litigation by and against executors of decedents’

estates.” In re Oil Spill by the Amoco Cadiz, 954 F.2d 1279,

1319 (7th Cir. 1992), quoted with approval in United Food &

Commercial Workers Union Local No. 751 v. Brown Group,

Inc., 517 U.S. 544, 557 (1996). None of these examples is

particularly relevant to our case, because in each the plaintiff

has a direct stake in the outcome of the litigation. A party can

only serve as class representative if he has a personal claim

(emphasis added). According to plaintiffs, they, too, have been designated

by statute as the agents of their respective plans, and have standing, just

like qui tam relators. But, plaintiffs’ truncated quotation omits an important qualifier: “in whose name (as the statute provides) the suit is brought

—and that the relator’s bounty is simply the fee he receives out of the

United States’ recovery for filing and/or prosecuting a successful action on

behalf of the Government.” Id. (emphases omitted). As the omitted portion

of the sentence makes clear, the Supreme Court started with the assumption that a qui tam relator has an interest in the outcome of the lawsuit

because he stands to gain a part of any recovery. The Court thus had no

cause to consider the situation where a party is authorized to bring suit on

behalf of another party, but is given no stake in the outcome. 

The passage, read in context, is even more problematic. In the immediately succeeding sentence, the Court notes that “the statute gives the relator himself an interest in the lawsuit, and not merely the right to retain a

fee out of the recovery.” Id. (emphasis omitted). “There is no doubt, of

course,” the Court further noted, “that as to this portion of the recovery—

the bounty he will receive if the suit is successful—a qui tam relator has

a ‘concrete private interest in the outcome of [the] suit.’ ” Id. (quoting

Lujan, 504 U.S. at 573) (alteration in original). The balance of the opinion

deals with the difficult question of whether Congress may give a third

party a stake in a lawsuit seeking to redress the invasion of somebody

else’s rights. The Court concludes (as we note in text) that it does, on the

theory that a part of the claim is assigned to the relator. Because the opinion’s rationale hinges on the existence of such an assignment, it cannot

apply to plaintiffs here, who have been assigned no right to any portion

of the recovery. 

GLANTON v. ADVANCEPCS INC. 17587
that is representative of the claims of other class members;

while he also litigates the case on behalf of the class, he

always shares in any recovery, on a par with other class members. Trustees and executors, likewise, have a stake in the litigation because they are acting on behalf of the estate, which

owns the claims being litigated. Finally, governmental entities

have a concrete stake in the proper application of the laws of

their jurisdiction, giving them a sufficient basis for Article III

standing in parens patriae cases. Alfred L. Snapp & Son, Inc.

v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 (1982).4

[8] Nor can plaintiffs find comfort in the associational

standing cases, where the Supreme Court has held that associations or unions may bring suit to redress the rights of their

members, even though the suing entity itself suffered no

injury. See, e.g., United Food & Commercial Workers, 517

U.S. at 558. These cases turn on the fiction that an individual

member authorizes the group to sue on his behalf. As the

Court discussed it in NAACP v. Alabama ex rel. Patterson,

357 U.S. 449 (1958), the association “and its members are in

a very practical sense identical.” Id. at 459, quoted in United

Food & Commercial Workers, 517 U.S. at 552. When the

association is “organized for a purpose germane to the subject

of its member’s claim . . . the association’s litigators will

themselves have a stake in the resolution of the dispute, and

4Like the district court, we find Amalgamated Clothing & Textile Workers Union, AFL-CIO v. Murdock, 861 F.2d 1406 (9th Cir. 1988), and Waller v. Blue Cross of California, 32 F.3d 1337 (9th Cir. 1994), inapposite.

Both of these cases held that ERISA beneficiaries could seek a constructive trust for ill-gotten gains fiduciaries allegedly received as a result of

breaching their duties. The question was not standing, but whether ERISA

authorized a remedy that would inure to the benefit of the plan participants

rather than the plan. We concluded that it did, because the plans had been

dissolved and any recovery would otherwise cycle back to the wrongdoers. This removed any doubt as to standing because it gave the beneficiaries a concrete stake in the lawsuit. Plaintiffs here do not seek a

constructive trust for their own benefit, or any other remedy that would

entitle them to any amount recovered in this lawsuit. Nor could they,

because any recovery could not inure to the benefit of AdvancePCS. 

17588 GLANTON v. ADVANCEPCS INC.
thus be in a position to serve as the defendant’s natural adversary.” United Food & Commercial Workers, 517 U.S. at 555-

56. 

[9] The theory underlying the associational standing cases

does not operate in reverse: By joining the association, the

member gives some indication that the association represents

his interests; but in accepting his membership, the association

gives no reciprocating signal that the member represents its

interests. Thus, a health plan might be able to sue on behalf

of its injured subscribers even if the plan suffered no injury

itself, but not vice versa. To hold otherwise would turn the

associational standing caselaw on its head—fatally undermining any limitation the requirement of concrete injury places

on constitutional standing. 

[10] Finally, plaintiffs point to Massachusetts Mutual Life

Insurance v. Russell, 473 U.S. 134, 142 n.9 (1985), where the

Court noted that ERISA plan beneficiaries may bring suits on

behalf of the plan in a representative capacity. We have no

quarrel with this proposition—so long as plaintiffs otherwise

meet the requirements for Article III standing. ERISA plans

are organized in a variety of ways, and no doubt some would

give participants a stake in a lawsuit against fiduciaries. See,

e.g., Kayes, 51 F.3d at 1453 (plaintiffs alleged that the plan

fiduciary’s selection of a financially troubled insurance company was a breach of fiduciary duty that caused annuity payments owed to the plaintiffs to be reduced to seventy percent

of their previous level). In such cases, plan beneficiaries can

also sue on behalf of the plans, because they will have a concrete stake in the outcome of the proceedings. Such is not the

case here. 

AFFIRMED. 

GLANTON v. ADVANCEPCS INC. 17589