1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0297p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

D ANIEL P. S OEHNLEN ; B ILL R EEVES ; S UPERIOR D AIRY , I NC ., Plaintiffs-Appellants ,

v

.

F LEET O WNERS I NSURANCE F UND ; R OBERT K

AVALEC ; C HARLIE A LFERIO ; V ICTOR C OLLOVA , Defendants-Appellees

. ┐ │ │ │ │ │ │ │ │ │ ┘ No. 16-3124

Appeal from the United St ates District Court for the Northern District of Ohio at Cleveland. No. 1:15-cv-00445—Donald C. Nugent, District Judge. Argued: October 18, 2016
Decided and Filed: December 21, 2016
Before: KEITH, BATCHELDER, and CLAY, Circuit Judges.

_________________ COUNSEL

ARGUED: Keith L. Pryatel, KASTNER WEST MAN & WILKINS, LLC, Akron, Ohio, for Appellants. Eric G. Serron, STEPTOE & JOHN SON LLP, Washington, D.C., for Appellees. ON BRIEF: Keith L. Pryatel, Kenneth M. Ha neline, KASTNER WESTMAN & WILKINS, LLC, Akron, Ohio, for Appellants. Eric G. Se rron, Paul J. Ondrasik, Jr., Osvaldo Vazquez, STEPTOE & JOHNSON LLP, Washington, D.C ., Lance B. Johnson, LANCE B. JOHNSON LLP, Cleveland, Ohio, for Appellees. 

### >No. 16-3124 Soehnlen, et al. v. Fleet Owners Ins., et al. Page 2

_________________ OPINION

_________________ CLAY, Circuit Judge. Plaintiffs Daniel Soehnlen, Bill Reeves, and Superior Dairy, Inc. filed suit alleging that Defendants Fleet Owners In surance Fund, Robert Kavalec, Charlie Alferio and Victor Collova, breached a range of obligat ions under the Employee Retirement Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001 et seq

. (1974), the Patient Prot ection and Affordable Care Act of 2010 (“ACA”), 26 U.S.C. § 5000A (Pub. L. No. 111-148, as modified by the subsequently enacted Health Care and Edu cation Reconciliation Act, Pub. L. No. 111-152 (2010)), and § 302 of the Labor Management Rela tions Act (“Taft-Hartley Act”), 29 U.S.C. § 186 (1988). Plaintiffs also brought breach of c ontract claims. The di strict court dismissed Plaintiffs’ complaint for failure to state a claim and for lack of standin g. For the reasons that follow, we AFFIRM the district court’s judgment.

BACKGROUND
Factual Background
Plaintiff Superior Dairy, Inc. (“Superior Dair y”) is an Ohio Corporation that engages in the manufacture and processing of milk-based products. Plaintiff Dani el P. Soehnlen is President and Chief Executive Officer of Superior Dairy. Plaintiff Bill Reeves is an hourly employee of Superior Dairy, who also serves as a union steward on behalf of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helper s of America, Genera l Trucker Drivers and Helpers, Local Union No. 92. As the parties concede, Defendant Fleet Owners Insurance Fund (“Fleet Owners” or the “Plan”) is a multi-employer “welfare benefit plan” within the meaning of ERISA, 29 U.S.C. § 1001, and a “group health plan” within mean ing of the ACA, and therefore is covered by both ERISA and the ACA. Defenda nts, Robert Kavalec, Charlie Alferio, and Victor Collova are each represented to be eith er current or former trustees for the Plan, responsible for overseeing its operation.
In order to provide medical coverage to its empl oyees, Superior Dair y contracted with
Fleet Owners and memorialized the terms of their agreement by signing the participationNo. 16-3124 Soehnlen, et al. v. Fleet Owners Ins., et al. Page 3

agreement (the “Participation Agreement”) on April 14, 2014. The Participation Agreement incorporated by reference the Amended and Restat ed Agreement and Declaration of Trust signed in 2002 (“Trust Agreement”). Plain tiffs allege in their amended co mplaint that prior to entering into the Participation Agreement, they receiv ed certain assurances from Fleet Owners and
individual trustees of the Plan, that the Plan would comply in all respects with federal law, including ERISA and the ACA.
According to Plaintiffs, notwithstanding the ACA’s statutory requirement mandating that all group health plans eliminate per-participant and per-beneficiary pecuniary caps for both annual and lifetime benefits, the Plan maintains su ch restrictions. Consequently, Superior Dairy purchased supplemental health in surance benefits to fully cover its employees. Defendants do not, at this time, dispute the exis tence of benefit caps within the plan, but instead argue that the Plan is exempt from such requirement s because it is a “grandfathered” plan.
Procedural History
Plaintiffs filed their complaint against Defendants alleging violations of the ACA, ERISA, Taft-Hartley Act, and various provisi ons of the Trust Agreement and Participation Agreement that govern the Plan. The action was brought both on behalf of individual named Plaintiffs, Soehnlen and Reeves, and the compa ny Superior Dairy, and on behalf of a class of similarly situated employees. The district court dismissed all seven counts alleged in Plaintiffs’ complaint. Plaintiffs appeal every one of the di strict court’s conclusions; we therefore consider each argument below.

DISCUSSION

Standard of Review

This Court reviews de novo both a district cour t’s decision to dismiss the complaint for lack of subject matter jurisdiction and to dismiss for failure to state a claim. See Gaylor v. Hamilton Crossing CMBS , 582 F. App’x 576, 579 (6th Cir. 2014); In re Carter , 553 F.3d 979, 984 (6th Cir. 2009) (“Where a district court rules on a 12(b)(1) motion to di smiss that attacks the claim of jurisdiction on its face, this Court reviews the decision de novo .”) To avoid dismissalNo. 16-3124 Soehnlen, et al. v. Fleet Owners Ins., et al. Page 4

under Rule 12(b)(6), a complaint must provide suffici ent facts to state a clai m that is plausible on
its face. See Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). And where a plaintiff’s Article III standing is at issue, the plaintiff must allege facts sufficient to establish the requisite
individualized harm. See Keener v. Nat’l Nurses Org. Comm. , 615 F. App’x 246, 251 (6th Cir. 2015).
Analysis

I. ERISA Claims

1. Count I and II: Monetary and Injunc tive Relief under 29 U.S.C. § 1132 (a)(1)(B)
Plaintiffs allege that by fa iling to comply with the ACA provisions enjoining annual and life-time limitations on benefits, Defendants violated their ERISA rights. Consequently, Plaintiffs seek monetary and injunctive reli ef under 29 U.S.C. § 1132(a)(1)(B) of ERISA, which states that a civil action may be brought in federal court “by a par ticipant or beneficiary . . . to
recover benefits due to him under the terms of hi s plan, to enforce his ri ghts under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” The district court
dismissed the first two claims of Plaintiffs’ co mplaint for lack of standing. Arguing that they have sufficiently pleaded an invasion of their congr essionally defined rights, Plaintiffs ask us to
reverse the district court. We decline to do so.

As has been reaffirmed countless times, ther e are two components to any given standing inquiry: constitutional and statutory. The Suprem e Court has recently clarified, however, that what has been called “statutory standing” in fact is not a standing issue, but simply a question of whether the particular plaintiff “has a cause of action under the statute.” Am. Psychiatric Ass’n v. Anthem Health Plans, Inc. , 821 F.3d 352, 359 (2d Cir. 2016) (citing Lexmark Int’l, Inc. v. Static Control Components, Inc. , 134 S. Ct. 1377, 1386 (2014)). Defendants do not oppose, and we assume without considering, th at Plaintiffs have a valid cause of action under ERISA in order to bring their § 1132(a)(1)(B) claim. But, as has been repeatedly proclaimed by the Supreme Court, even if a plaintiff has a cause of action arising under a given statute, “federal courts . . . have only the power that is authorized by Article III” and, therefore, we must analyze standing
under Article III. See, e.g. , Bender v. Williamsport Area Sch. Dist. , 475 U.S. 534, 541 (1986).No. 16-3124 Soehnlen, et al. v. Fleet Owners Ins., et al. Page 5

With respect to claims arising under ERISA, plai ntiffs are not absolved from showing that the
elements of Article III are met. Loren v. Blue Cross & Blue Shield of Mich. , 505 F.3d 598, 606– 07 (6th Cir. 2007) (citing Cent. States Se. & Sw. Areas Health and Welfare Fund v. Merck– Medco Managed Care , 433 F.3d 181, 199 (2nd Cir. 2005)).
“Article III limits the judicial power of the United States . . . and ‘Article III standing . . . enforces the Constitution’s case-or-controversy requirement.’” Hein v. Freedom From Religion Found., Inc. , 551 U.S. 587, 597–98 (2007) (quoting Elk Grove Unified Sch. Dist. v. Newdow , 542 U.S. 1, 11 (2004)). Consequently, it must be determined whether Plaintiffs have “‘such a personal stake in the outcome of th e controversy’ as to warrant [t heir] invocation of federal-court jurisdiction and to justify exercise of the co urt’s remedial powers on [their] behalf.” Warth v.
Seldin , 422 U.S. 490, 498–99 (1975) (quoting Baker v. Carr , 369 U.S. 186, 204 (1962)).
Plaintiffs bear the burden of establishing standing. See Lujan v. Defenders of Wildlife , 504 U.S. 555, 561(1992). To satisfy Article III’s standing re quirements, a plaintiff must show: “(1) [he] has suffered an ‘injury-in-fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Loren , 505 F.3d at 606–07 (quoting Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. , 528 U.S. 167, 180–81 (2000)).
We scrutinize the “injury-in-fact” element of standing in order to determine not just whether Plaintiffs have sufficiently pleaded a statutory injury, but a constitutional one as well. As the Supreme Court recently affirmed in Spokeo, Inc. v. Robins , an injury-in-fact contains the two distinct elements of particularizati on and concreteness. 136 S. Ct. 1540, 1548–50 (2016). For an injury to be particularized, “it must aff ect the plaintiff in a personal and individual way.”
Id. at 1548 (quoting Lujan , 504 U.S. at 560); see also Valley Forge Chri stian Coll. v. Americans United for Separation of Church & State, Inc. , 454 U.S. 464, 472 (1982) (standing requires that the plaintiff “personally has suffered so me actual or threaten ed injury”). While “particularization is necessary to establish inju ry in fact[,] . . . it is not sufficient.” Spokeo , 136 S. Ct. at 1548. A plaintiff must also show that he suffered a c oncrete injury, defined as a “de facto” injury, meaning that the injury “must actually exist.” Id.No. 16-3124 Soehnlen, et al. v. Fleet Owners Ins., et al. Page 6

Pointing specifically to Spokeo , Plaintiffs contend that th e Supreme Court has radically altered the landscape for pleading injury-in-fact. Consequently, they believe that by merely alleging a violation of ERISA right s, they satisfy their obligation under Article III. We disagree on both points. While we recognize that the Supreme Court acknowledge d that non-tangible injuries, including violations of statutory rights , may satisfy the constitutional showing of an injury-in-fact, we also take the Court at its word when it cautions th at “Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutor y right and purports to authorize that person to sue to vindicate that right.” Id. “Article III standing requires a concrete injury even in the context of a statutory violation.” Id. Therefore, even if we assume the injury is sufficiently particularized, Plaintiffs must still show that the deprivation of a right created by statute is accompanied by “some concrete interest that is a ffected by the deprivation.” Id. (quoting Summers v. Earth Island Inst. , 555 U.S. 488, 496 (2009)). A “concrete” intangible injury based on a statutory viola tion must constitute a “risk of real harm” to the plaintiff. Id.
Plaintiffs argue, in extreme generality, that certain member s of their class suffer from conditions that have previously required medical expenses in excess of the benefit caps imposed by the Plan. They also claim that some of their employees will choose to delay important medical procedures in order to avoid exceeding th e cap. We again reiterate, Plaintiffs are not absolved of their individual obligation to satisfy the injury element of Article III just because they allege class claims. We previously made clear that potential class representatives must demonstrate “individual standing vis-a-vis the defendant; [they] cannot acquire such standing merely by virtue of bringing a class action.” Fallick v. Nationwide Mut. Ins. Co. , 162 F.3d 410, 423 (6th Cir. 1998). Individual Plai ntiffs never show precisely what concrete harm they suffer as
a result of Defendants’ violations of their ERISA rights. By merely arguing, as Plaintiffs do, that the pecuniary limitations imposed by the Plan exis t, without anything furt her, Plaintiffs cannot hope to satisfy the concreteness prong of the injury-in-fact requirement of Article III. 1 See Lee v.

1 With respect to Plaintiffs’ assertion that Plaintiff Superior Dairy suffered an injury by having to purchase supplemental insurance, claims by an employer are not cognizable under § 1132(a)(1)(B). See Girl Scouts of Middle Tennessee, Inc. v. Girl Scouts of the U.S.A. , 770 F.3d 414, 418 (6th Cir. 2014) (“As an employer in a multipleemployer plan, GSMT concedes that it has no valid cause of action under ERISA); see also Whitworth Brothers Storage Co. v. Central States, Southeast and Southwest Areas Pension Fund , 794 F.2d 221, 225–27 (6th Cir. 1986)No. 16-3124 Soehnlen, et al. v. Fleet Owners Ins., et al. Page 7

Verizon Commc’ns, Inc. , No. 14-10553, 2016 WL 4926159, at *2 (5th Cir. Sept. 15, 2016) (explaining that Kendall v. Emps. Ret. Plan of Avon Prods. , 561 F.3d 112, 120 (2d Cir. 2009) rejected the argument that defendants’ violation of their statutory duties under ERISA is in and of itself an injury in fact to the plaintiff).
To the extent that Plaintiffs claim they personally suffer a constitutional injury by remitting money towards a non-compliant plan, they cannot state a claim. This Court has already determined that under § 1132( a)(1)(B), the mere fact that a plaintiff pays funds into a non-compliant plan, if an injury at all, is “nei ther concrete nor partic ularized, and is instead, arguably conjectural and hypothetical” and ther efore does not satisfy injury-in-fact. Loren , 505 F.3d at 608. Accordingly, we di smiss Plaintiffs’ first two clai ms for lack of subject matter jurisdiction. 2

2. Count III: Monetary and Injunctive Relief under § 1132(a)(1 )(B) and § 1132(a)(3)
In Count III of their complaint, Plaintiffs, w ithout introducing any additional facts, allege that Defendants have refused to provide benefits and coverage mandated by the ACA and ERISA. They seek to enjoin future violations and obtain appropriate m onetary, declaratory, and equitable relief to redress the violations unde r § 1132(a)(1)(B) and § 1132(a)(3). In relevant part, § 1132(a)(3) reads:
a civil action may be brought . . . by a partic ipant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other a ppropriate equitable relief (i) to redress such violations or (ii) to enforce any provi sions of this subchapt er or the terms of the plan.

(explaining that the principal civil enforcement provision of ERISA did not grant jurisdiction to employers, aside from some causes of action under multiemployer plans).
2 It should be pointed out that we would just as likely dismiss Plaintiffs’ argument on the merits as well. In CIGNA Corp. v. Amara , the Supreme Court made clear that § 1132(a) (1)(B) does not afford a court any “authority to reform [a] plan as written.” 563 U.S. 421, 438 (2011). “The statutory language speaks of enforcing the terms of the plan, not of changing them.” Id. at 436. By arguing that the terms of the Plan do not comply with the law, Plaintiffs tacitly concede that the relief they seek exists outside the scope of their plan. And an action attempting to re-write the terms of a plan is unavailable under § 1132(a)(1)(B). See Pender v. Bank of Am. Corp. , 788 F.3d 354, 361–62 (4th Cir. 2015) (holding that a cause of action could not be advanced under § 1132(a)(1)(B) when the plaintiffs sought to enforce the plan “not as written, but as it should properly be enforced under ERISA.”).No. 16-3124 Soehnlen, et al. v. Fleet Owners Ins., et al. Page 8

As the Supreme Court explained in Varity Corp. v. Howe , 516 U.S. 489 (1996) § 1132(a)(3) is a “catch-all” provision that “act[s] as a safety net, offering appropriate equitable relief for injuries caused by violations that [§ 1132] does not elsewhere adequately remedy.” Id. at 512. Nonetheless, Plaintiffs’ arguments once again run counter to the manda te of Article III.
First, as a threshold matter, when bringing a suit under § 1132(a)(3) for monetary relief, plaintiffs must establ ish injury-in-fact. See Loren , 505 F.3d at 609; see also Perelman v. Perelman, 793 F.3d 368, 373 (3d Cir. 2015) (“claims de manding a monetary equitable remedy . . . require the plaintiff to allege an individua lized financial harm traceable to the defendant’s alleged ERISA violations); Cent. States, 433 F.3d at 200 (“obtaining restitution or disgorgement under ERISA requires that a plaintiff satisfy the strictures of constitutional standing by demonstrat[ing] individual loss”); Harley v. Minn. Mining and Mfg. Co. , 284 F.3d 901, 906–07 (8th Cir. 2002) (holding no constitutional standing existed because the “loss did not cause actual injury to plaintiffs’ interests in the plan”). Consequently, to the extent Plaintiffs’ claim under § 1132(a)(3) seeks monetary relief, it must be dismissed because, as previously discussed,
Plaintiffs did not demonstrate individual harm.
However, with respect to their request for injunctive relief, Plain tiffs contend, relying

upon Horvath v. Keystone Health Plan East, Inc. , 333 F.3d 450 (3d Cir. 2003), subsequently cited by this Court in Loren , 505 F.3d at 609–10, that a plaintiff need not establish “actual harm” under § 1132(a)(3). We again di sagree. To the extent we ha ve allowed cases to go forward without compelling plaintiffs to show individu alized injury, the cases were advanced under a different theory of liability than allege d by Plaintiffs. The plaintiffs in both Horvath and Loren argued that defendants breached their fiduciary duties under the ERISA plan. A plaintiff who brings suit under § 1132(a)(2) for breach of fiduciary duty does so in order to “seek recovery on behalf of the plan.” Loren , 505 F.3d at 608; see also Mass. Mutual Life Ins. Co. v. Russell , 473 U.S. 134, 140 (1985) (holding that a partic ipant’s fiduciary action brought pursuant to § 1132(a)(2) must seek remedies that provide a “benefit [t o] the plan as a whole”); Braden v. Wal-Mart Stores, Inc. , 588 F.3d 585, 593 (8th Cir. 2009) (“It is well settled, moreover, that suit under § 1132(a)(2) is brought in a re presentative capacity on behalf of the plan as a whole andNo. 16-3124 Soehnlen, et al. v. Fleet Owners Ins., et al. Page 9

that remedies under § 1109 protect the entire pla n.”). Any recovery does not accrue to the plaintiff, but the plan itself.
Plaintiffs pair their request for injunctive relief with allegations of a breach of § 1132(a)(1)(B), a statute requiring a court to make individualized determinations of benefits. Although we have noted that there is a distinction between an i ndividual claim for benefits under § 1132(a)(1)(B) and a claim brought under § 1132(a)(3) to compel a defendant to alter the manner in which it administers all the claims under the plan, see Hill v. Blue Cross and Blue Shield of Mich. , 409 F.3d 710 (6th Cir. 2005), we have never held that such a claim can proceed without the individual plaintiffs ’ showing a constitutional injury. And we decline to do so now, finding that Plaintiffs cannot escape their obligati on to show a constitutional injury. 3

3. Count IV: Breach of Fiduciary Duty
Count IV of Plaintiffs’ complaint alleges th at Defendant trustees Kavalec, Collova and Alferio have each breached their fiduciary ob ligations to the Plan, subjecting it to over $15,000,000 in taxes and penalties. In turn, they request appropria te monetary, injunctive, and equitable relief pursuant to 29 U.S.C. § 1132(a )(2); 29 U.S.C. § 1132(a)(3); and 29 U.S.C. § 1109(a). We reject their claim for monetary relie f, because as previously discussed, individual plaintiffs bringing an action for monetary reli ef, even one brought deri vatively on behalf of a plan, must personally satisfy the requirements of Article III. See Loren , 505 F.3d at 609.
Nonetheless, Plaintiffs press their claim for injunctive relief, arguing they need not show individual injury to obtain injunctive relief for a breach of fiduciary duty, relying again upon
Horvath and Loren . In Loren , we considered a similar argume nt pursuant to § 1132(a)(2) and § 1132(a)(3), and recognized that while the plaintiffs’ argumen ts under § 1132(a)(2) were “too speculative to establish constitutional standing,” Loren , 505 F.3d at 609, plaintiffs’ action requesting injunctive relief may proceed unde r § 1132(a)(3) “to ERISA’s disclosure and fiduciary duty requirements without a showing of individual harm.” Id. (citing Cent. States , 433 F.3d at 199 and Horvath , 333 F.3d at 450). We conclude d that “[p]laintiffs need not

3 In the alternative, this claim may be dismissed on ripeness grounds because it is “anchored in future events that may not occur as anticipated, or at all.” Nat’l Rifle Ass’n of Am. v. Magaw , 132 F.3d 272, 284 (6th Cir. 1997).No. 16-3124 Soehnlen, et al. v. Fleet Owners Ins., et al. Page 10

demonstrate individualized injury to proceed with their claims for injunctive relief under § 1132(a)(3); they may allege only violation of the fiduciary duty owed to them as a participant in and beneficiary of their respective ERISA plans.” Id.
We now recognize that some ambiguity may ha ve been engendered by this decision and take this opportunity to provide clarification. There is no doubt that ERISA imposes on plan fiduciaries a duty to act in accordance with th e documents and instruments governing the plan
insofar as such documents and instruments ar e consistent with the provisions of ERISA. 29 U.S.C. § 1104(a)(1)(D). However, it is not suffici ent merely to state, as Plaintiffs do, that the plan is deficient without showing which specific fiduciary duty or specific right owed to them was infringed. See Kendall 561 F.3d at 120 (narrowing the broad language of Horvath and noting plaintiffs “did have to show that they were generally harmed by the deprivation of a specific right.”) (emphasis added). Plaintiffs argument again suffers from the same lack of concreteness with respec t to injury as previously explaine d. We recognize that misconduct by the administrators of a benefit plan can create an injury if “it crea tes or enhances a risk of default by the entire plan.” LaRue v. DeWolff, Boberg & Associates, Inc. , 552 U.S. 248, 255 (2008). But Plaintiffs make no showing of actual or imminent inju ry to the Plan itself. Plaintiffs concede this point by pleading that the actions of the fiduciaries expose the Plan to prospective liability in the amount of $15,000,000. To the extent that Plaintiffs argue that the risk of an enforcement action is itself sufficient to constitute an injury, we fi nd in the absence of any evidence that penalties have been levied, paid, or even contemplated th at “these risk-based theories of standing [are] unpersuasive, not least because they rest on a highly speculative foundation lacking any discernible limiting principle.” David v. Alphin , 704 F.3d 327, 338 (4th Cir. 2013). We
therefore affirm the district co urt’s finding that Plaintiffs’ lack standing to bring this claim.

4. Count V: Breach of § 1149
In Count V of their complaint, Plaintiffs argue pursuant to 29 U.S.C. § 1149 that Defendants Robert Kavalec, Victor Collova, and Charlie Alferio ma de false statements and false representations of fact , knowing these representations to be false in connection with the advertising, marketing or sale to Superior Dairy. Allegedly, Defendants made certain promises to Plaintiffs that the Plan would comply in a ll respects with ERISA and welfare benefit laws;No. 16-3124 Soehnlen, et al. v. Fleet Owners Ins., et al. Page 11

such assurances were instrumental to Superior Dairy’s contracting with Fleet Owners to have the Plan provide medical benefits.
Interpreting § 1149 presents this Court with an i ssue of first impression. 4 Neither litigant points to a single case construing § 1149 or produ ces concrete authority regarding whether § 1149 provides Plaintiffs with a cause of action. But, even if we assume, which we now do without deciding, that it does, we must still dismiss for fa ilure to state a cl aim upon which relief can be granted. 5 Section § 1149 provides in relevant part:
No person, in connection with a pl an or other arrangement that is [a] multiple employer welfare arrangement described in section 1002(40) of this title, shall make a false statement or false representation of fact, knowing it to be false, in connection with the marketing or sale of such plan or arrangement, to any employee, any member of an employ ee organization, any beneficiary, any employer, any employee organization, th e Secretary, or any State, or the representative or agent of any such pe rson, State, or the Secretary, concerning . . . . (2) The benefits provide d by such plan or arrangement. 29 U.S.C. § 1149 (emphasis added).

In instances where we have been faced wi th similar statutory language, we have found that a heightened pleading standard, as expresse d under Fed. R. Civ. P. 9(b), should be applied to a plaintiff’s allegations. See, e.g. , U.S. ex rel. SNAPP, Inc. v. Ford Motor Co. , 532 F.3d 496,
504–05 (6th Cir. 2008) (finding that a qui tam action under the False Claims Act should be pled under Rule 9(b) because it imposes liability on a person who “ knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the government.”) (emphasis added).
Dismissal of a complaint for failure to comply with Rule 9(b) is reviewed as a dismissal
for failure to state a claim. SNAPP, Inc. , 532 F.3d at 502. A complaint may be dismissed if it contains “no specific information about the filing of the claims themselves—nothing, that is, to

4 The District Court dismissed the action, finding that § 1149 was a cr iminal-only enforcement provision, thereby falling within the exclusive purview of the Attorney General and affording no individual cause of action.
5 When the standard of review is de novo and involves only applications of legal conclusions to the undisputed facts in the record, we may affirm on any grounds supported by the record even if different from the reasons of the district court. Angel v. Ky. , 314 F.3d 262, 264 (6th Cir. 2002) (citing Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc. , 280 F.3d 619, 629 (6th Cir. 2002).No. 16-3124 Soehnlen, et al. v. Fleet Owners Ins., et al. Page 12

alert the defendants ‘to the prec ise misconduct with which they ar e charged and [to] protect[] defendants against spurious charges of immoral and fraudulent behavior.’” Sanderson v. HCA– The Healthcare Company , 447 F.3d 873, 877 (6th Cir. 2006) (quoting United States ex rel. Clausen v. Laboratory Corp. of America, Inc. , 290 F.3d 1301, 1310 (11th Cir. 2002)). To insure that a defendant has sufficient notice, a plaintiff must “allege the time, place and content of the alleged misrepresentation; the fraudulent intent of the defendants; and the injury resulting from
the fraud.” United States ex rel Bledsoe v. Cmty. Health Sys., Inc. , 501 F.3d 493, 502 (6th Cir. 2007).
Plaintiffs allege a violation under § 1149, wh ich requires a showing of a false statement or false representation of fact; knowledge that th e statement was false; and a connection with the marketing or sale of an ERISA plan. Under Rule 9(b), a plaintiff must plead each element of a fraud action with the requisite particularity in order to state a claim upon which relief can be granted. See Heinrich v. Waiting A ngels Adoption Servs., Inc. , 668 F.3d 393, 404 (6th Cir. 2012). Plaintiffs failed to do so in the instant case.
In their complaint, Plaintiffs do nothing more than restate the relevant section of § 1149 by claiming that the individual trustees made fals e statements and false re presentations of fact, knowing these representations to be false in connec tion with the advertising, marketing or sale to Superior Dairy during the course of their ne gotiations. The only sp ecificity included in Plaintiffs’ complaint refers to Defendants’ promis e that the Plan would co mply in all respects with ERISA and welfare benefit laws, includ ing without limitation the ACA. No further
reference is made to false statements in Plainti ffs’ amended complaint. At no point do Plaintiffs identify specific statements from particular trustees at specific times which constitute the purportedly false promises and assurances Plaintiffs now claim they relied upon.
Although the application of Rule 9(b) does not require formulaic compliance, we have made clear that in order to plead fraud with pa rticularity, a plaintiff must allege among other things “the time, place, and content of the alleged misrepresentation.” Bledsoe , 501 F.3d at 504. The rule’s purpose is to alert defendants “as to the particulars of thei r alleged misconduct” so that they may respond. Chesbrough v. VPA, P.C. , 655 F.3d 461, 466 (6th Cir. 2011) (citing
Bledsoe , 501 F.3d at 503). The heightened pleading standards are designed to prevent “fishingNo. 16-3124 Soehnlen, et al. v. Fleet Owners Ins., et al. Page 13

expeditions,” protect defendants’ reputation from allegations of fr aud, and to narrow potentially wide-ranging discovery to relevant matters. Id. Plaintiffs’ one sentence allegation does nothing
to alleviate the concerns undersco red by Rule 9(b) and we , therefore, dismiss this claim and turn
to Plaintiffs’ non-ERISA claims.

II. Plaintiffs’ Additional Claims
1. Count VI: The Taft-Hartley Act
Plaintiffs allege that Defendants have br eached § 186 (a–e) of the Taft-Hartley Act because the Plan fails to identify a neutral th ird party that will break deadlocks amongst the parties in the event of a benef it dispute. The district court dismissed, finding that the Supreme Court decision, Local 144 Nursing Home Pension Fund v. Demisay , 508 U.S. 581 (1993), foreclosed this action. We agr ee, and affirm the dismissal.

In Demisay , the Supreme Court held that § 186(e), the jurisdictional component of the Taft-Hartley statute allowing a plaintiff to bring injunctive relief to enforce violations, did not extend to claims “requiring the trust funds to be administered in the manner described in § [186(c)(5)].” Demisay , 508 U.S. at 588. Plaintiffs’ claim rests entirely upon such a challenge and their complaint restates e ssentially word for word language derived from § 186(c)(5). The Supreme Court was quite clear that “[t]he trustees’ failure to comply with [§ 186(c)] may be
a breach of their contractual or fiduciary obligations and may subject them to suit for such breach; but it is no violation of § [186].” Id. at 588–89.
Relying upon Lipton v. Consumer Union of U.S., Inc. , 37 F. Supp. 2d 241, 245 (S.D.N.Y. 1999), Plaintiffs advance an alternative reading of Demisay that distinguishes between instances in which a plaintiff seeks recovery of money alr eady contributed to the fund and the situation at
hand where Plaintiffs wish to en join future monthly payments to the Plan. We reject such a tortured reading of Lipton and by extension Demisay . In Lipton , the plaintiffs argued that by limiting the trustee’s power to invest in any equi ty security not intended to benefit the union, the fund violated the Taft-Hartley Act. See id. at 242. The court agre ed, finding that such a challenge proceeded not under § 186(c) but unde r § 186(a) because it questioned the initial purpose for which the fund was established. The di strict court noted that a § 186(c) violation,No. 16-3124 Soehnlen, et al. v. Fleet Owners Ins., et al. Page 14

while itself not cognizable, could be used as ev idence to show a violation under either § 186(a) or (b).
In explaining Demisay , the district court made two impor tant observations. Plaintiffs rest
their conclusion enti rely upon the first: the timing of when m oney is paid out is important. But, Lipton also states quite clearly that:
The [Supreme] Court drew also a second distinction, between establishment of a trust for a particular purpose and operati on in compliance with that purpose. The exception in Section [186(c)(5)], the Cour t said, “relates, not to the purpose for which the trust fund is in f act used (an unrestricted fund that happens to be used for the sole and exclusive benefit of the employees does not qualify); but rather to the purpose for which the trust fund is esta blished and for which the payments are held in trust.”

Id. at 245 (quoting Demisay , 508 U.S. at 588).

Lipton concluded that to state a claim under Taft-Hartley, th e suit must challenge the “purposes for which this fund was established” rather than the mechan isms by which the fund operates. Id. at 246. It again reaffirmed that courts do not have “jurisdicti on over administration of a fund or operation in complian ce with the purposes of § [186( c)(5)].” Courts, however, do “have jurisdiction . . . over questions of the purpose for which a fund is established.” Id. at 245.
Along with our sister circuits, we have endorsed a similar read ing of the Taft-Hartley Act that seeks to distinguish the purpose behind the plan’s founding and the manner by which the plan now operates. See Myers v. Bricklayers & Masons Local 22 Pension Plan , 629 F. App’x 681, 685 (6th Cir. 2015) (“[B]ecause [plaintiff] alle ges no bribery, extortion, or misuse of union funds, 29 U.S.C. § 186 offers no relief.”); Schneider v. Local 103 I.B.E.W. Health Plan , 442 F.3d 1, 2 (1st Cir. 2006) (recognizing the distinction between how contributions “are used” and the purpose for which the fund was “established,” but rejecting the challenge because the complaint failed to plead this); DeVito v. Hempstead China Shop, Inc. , 38 F.3d 651, 654 (2d Cir. 1994) (“[Plaintiff] does not contest that the [Plan] was properly established under § 302(c)(5), but contends that it subsequently operated in a manner inconsistent with § 302(c)(5). Demisay precludes this argument.”) Therefore, the only manner by which a violation of § 186(c)(5) is relevant is if a plaintiff alleges that the pl an was established for a purposeNo. 16-3124 Soehnlen, et al. v. Fleet Owners Ins., et al. Page 15

contravening law. Plaintiffs make no such allegations of fraudulent purpose. Accordingly, we cannot countenance Plaintiffs’ argument after Demisay

.
2. Counts VII and VIII: Breach of Contract
Finally, Plaintiffs bring breach of contract claims. Prior to c onsidering the merits of such state law claims, a court of appeals “must determ ine its own jurisdiction and is bound to do so in every instance.” Packard v. Farmers Ins. Co. of Columbus Inc. , 423 F. App’x 580, 583 (6th Cir. 2011) (quoting Carson v. U.S. Office of Special Counsel , 633 F.3d 487, 491 (6th Cir. 2011)). Courts may exercise supplemental jurisdiction over any state law claim that “form[s] part of the same case or controversy” as matters arising un der original jurisdicti on. 28 U.S.C. § 1367(a). “Claims form part of the same case or controve rsy when they derive from a common nucleus of operative facts.” Harper v. AutoAlliance Int’l, Inc. , 392 F.3d 195, 209 (6th Cir. 2004). This requirement is met when state and federal law clai ms arise from the same contract, dispute, or
transaction. See, e.g. , Carnegie—Mellon Univ. v. Cohill , 484 U.S. 343, 350–51 (1988); Capital
Park Ltd. Dividend Hous. Ass’n v. Jackson , 202 F. App’x. 873, 877 (6th Cir. 2006). Because Plaintiffs’ complaint raised federal and stat e law claims that stemmed from the same transaction—the breach of underlying ERISA oblig ations—it is proper for us to exercise supplemental jurisdiction over their claims. Plaintiffs allege that Defendants have breached, and continue to breach, both the Participation Agreement and the Trust Agreement by not complying with the ACA and ERISA. These claims are preempted by ERISA.
ERISA has one express preemp tion provision. It applies e qually to all ERISA benefit plans, preempting all state law cl aims that “relate to any empl oyee benefit plan.” 29 U.S.C. § 1144(a). The Supreme Court has noted that “the policy choices reflected in the inclusion of
certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants . . . were free to obtain remedi es under state law that Congress rejected in ERISA.” Pilot Life Ins. Co. v. Dedeaux , 481 U.S. 41, 54 (1987). Accordingly, “any state-law cau se of action that duplicates, supplements, or supplants the ERISA civil enforcement remedy conflicts with the clear congressional intent to make the ERISA remedy exclusive and is therefore pre-empted.” Aetna Health Inc. v. Davila , 542 U.S. 200, 209 (2004); see also Loffredo v. Daimler AG , 500 F. App’x 491, 495 (6th Cir. 2012) (citingNo. 16-3124 Soehnlen, et al. v. Fleet Owners Ins., et al. Page 16

to Penny/Ohlmann/Nieman, Inc. v. Miami Valley Pension Corp ., 399 F.3d 692, 698 (6th Cir. 2005) for the holding that ERISA preempts state la ws that “provide alternative enforcement mechanisms.”) ERISA specifically provides for re medies for breaches of contract and fiduciary duties. Consequently, any state law claim that grants relief for these breaches “‘duplicate[s], supplement[s], or supplant[s] the ERISA civil remedies.’” Girl Scouts , 770 F.3d at 419 (quoting
Smith v. Provident Bank , 170 F.3d 609, 613 (6th Cir. 1999)).
Plaintiffs argue that the breadth of ERIS A’s preemption provision is limited and that federal courts have repeatedly held that common law breach of contract claims are not preempted
under ERISA where the advocate of those claims is neither a “participant” nor “beneficiary” under the statute. They claim that because Supe rior Dairy cannot bring an action under ERISA, but remains a party to the Trust Agreement and Participation Agreement, its contract action cannot be preempted. However, Plai ntiffs’ argument is unpersuasive.
The Supreme Court has been clear that federal courts must look to the “objectives of the ERISA statute as a guide to the scope of the st ate law that Congress understood would survive.” N.Y. State Conference of Blue Cross & Bl ue Shield Plans v. Travelers Ins. Co. , 514 U.S. 645, 656 (1995). The purpose of ERISA preemption is to avoid conflicting federal and state regulation and to create a nati onally uniform administration of employee benefit plans. Thus, ERISA preempts state laws that (1) “manda te employee benefit structures or their administration”; (2) provide “alternate enforcement mechanisms”; or (3) “bind employers or plan administrators to particular choices or prec lude uniform administra tive practice, thereby functioning as a regulation of an ERISA plan itself.” Penny/Ohlmann/Nieman, Inc. 399 F.3d at 698 (quoting Coyne & Delany Co. v. Selman , 98 F.3d 1457, 1468 (4th Cir. 1996)). This has resulted, in limited scenarios, in courts concl uding that breach of contract claims were not preempted by ERISA.

However, in each such case, the conduct at i ssue did not actually relate to the ERISA plan in question. See, e.g. , Marks v. Newcourt Credit Group, Inc. , 342 F.3d 444, 453 (6th Cir. 2003) (finding that a breach-of-contract claim was not preempted where the conduct at issue was
unrelated to the benefits plan but was related to an employment contract); Smith v. Provident
Bank , 170 F.3d 609, 617 (6th Cir. 1999) (only where “an ERISA plan’s relationship with anotherNo. 16-3124 Soehnlen, et al. v. Fleet Owners Ins., et al. Page 17

entity is not governed by ERISA, it is subject to state law”); Gerosa v. Savasta & Co. , 329 F.3d 317, 330 (2d Cir. 2003) (concluding that ERISA does not preempt plan’s state law claim against an actuary which resulted in seve re underfunding of the ERISA plan); Ariz. State Carpenters
Pension Trust Fund v. Citibank , 125 F.3d 715, 724 (9th Cir. 1997) (concluding that a plan could bring a state law claim for breach of custodial agreement against a bank as non-fiduciary service provider); Coyne & Delany Co. , 98 F.3d at 1466, 1472 (holding that state malpractice claims against insurer for negligently failing to obtain replacement insurance plan was not preempted); Airparts Co. v. Custom Benefit Servs. , 28 F.3d 1062, 1066 (10th Ci r. 1994) (concluding that trustee’s common law suit against outside fi nancial consultant is not preempted).

In contrast, Plaintiffs’ contract claims present a mere duplication of their ERISA arguments. In order to adjudicate the breach of contract claim, we would inevitably be evaluating whether or not any prov ision of ERISA was violated. It is impossible, therefore, to
conclude that Plaintiffs’ breach of contract action is in any way distinguishable from their ERISA claims. Put another way, there is no way fo r us to resolve Plaintiffs’ contract claims without doubly reviewing their ER ISA claims. Engaging in such analysis would be duplicative
and thus we find the stat e law claims preempted. 6

CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment.

6 To escape this conclusion the district court recast Pl aintiffs’ arguments as challe nges to either ERISA or the ACA and found that Plaintiffs failed to exhaust their ad ministrative remedies. Both parties brief the issue to great length. However, we decline to recast Plaintiffs’ argument, instead taking them at their word, as expressed by their briefing, and do not address the matter of exhaustion.