(Slip Opinion) OCTOBER TERM, 2019 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 

being done in connection with this case, at the time the opinion is issued. 

The syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

THOLE ET AL. v. U. S. BANK N. A. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE EIGHTH CIRCUIT 

No. 17–1712. Argued January 13, 2020—Decided June 1, 2020 

Plaintiffs James Thole and Sherry Smith are retired participants in U. S.

Bank’s defined-benefit retirement plan, which guarantees them a fixed 

payment each month regardless of the plan’s value or its fiduciaries’ 

good or bad investment decisions. Both have been paid all of their 

monthly pension benefits so far and are legally and contractually entitled to those payments for the rest of their lives. Nevertheless, they

filed a putative class-action suit against U. S. Bank and others (collectively, U. S. Bank) under the Employee Retirement Income Security

Act of 1974 (ERISA), alleging that the defendants violated ERISA’s

duties of loyalty and prudence by poorly investing the plan’s assets.

They request the repayment of approximately $750 million to the plan 

in losses suffered due to mismanagement; injunctive relief, including 

replacement of the plan’s fiduciaries; and attorney’s fees. The District 

Court dismissed the case, and the Eighth Circuit affirmed on the 

ground that the plaintiffs lack statutory standing. 

Held: Because Thole and Smith have no concrete stake in the lawsuit, 

they lack Article III standing. See Lujan v. Defenders of Wildlife, 504 

U. S. 555, 560–561. Win or lose, they would still receive the exact same 

monthly benefits they are already entitled to receive. 

None of the plaintiffs’ arguments suffices to establish Article III 

standing. First, the plaintiffs rely on a trust analogy in arguing that

an ERISA participant has an equitable or property interest in the plan

and that injuries to the plan are therefore injuries to the participants. 

But participants in a defined-benefit plan are not similarly situated to

the beneficiaries of a private trust or to participants in a definedcontribution plan, and they possess no equitable or property interest in

the plan, see Hughes Aircraft Co. v. Jacobson, 525 U. S. 432, 439–441. 

Second, the plaintiffs cannot assert representative standing based on 
 

 

2 THOLE v. U. S. BANK N. A. 

Syllabus 

injuries to the plan where they themselves have not “suffered an injury

in fact,” Hollingsworth v. Perry, 570 U. S. 693, 708, or been legally or 

contractually appointed to represent the plan. Third, the fact that 

ERISA affords all participants—including defined-benefit plan participants—a cause of action to sue does not satisfy the injury-in-fact requirement here. “Article III standing requires a concrete injury even 

in the context of a statutory violation.” Spokeo, Inc. v. Robins, 578 

U. S. ___, ___. Fourth, the plaintiffs contend that meaningful regulation of plan fiduciaries is possible only if they may sue to target perceived fiduciary misconduct. But this Court has long rejected that argument for Article III standing, see Valley Forge Christian College v. 

Americans United for Separation of Church and State, Inc., 454 U. S. 

464, 489, and defined-benefit plans are regulated and monitored in

multiple ways.

 The plaintiffs’ amici assert that defined-benefit plan participants

have standing to sue if the plan’s mismanagement was so egregious

that it substantially increased the risk that the plan and the employer 

would fail and be unable to pay the participants’ future benefits. The 

plaintiffs do not assert that theory of standing here, nor did their complaint allege that level of mismanagement. Pp. 2–8. 

 873 F. 3d 617, affirmed. 

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, 

C. J., and THOMAS, ALITO, and GORSUCH, JJ., joined. THOMAS, J., filed a 

concurring opinion, in which GORSUCH, J., joined. SOTOMAYOR, J., filed a 

dissenting opinion, in which GINSBURG, BREYER, and KAGAN, JJ., joined. 
 

 

 

_________________ 

_________________ 

Cite as: 590 U. S. ____ (2020) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the 

preliminary print of the United States Reports. Readers are requested to 

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that 

corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 17–1712 

JAMES J. THOLE, ET AL., PETITIONERS v. 

U. S. BANK N. A., ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE EIGHTH CIRCUIT 

[June 1, 2020]

 JUSTICE KAVANAUGH delivered the opinion of the Court. 

To establish standing under Article III of the Constitution, a plaintiff must demonstrate (1) that he or she suffered 

an injury in fact that is concrete, particularized, and actual 

or imminent, (2) that the injury was caused by the defendant, and (3) that the injury would likely be redressed by the 

requested judicial relief. See Lujan v. Defenders of Wildlife, 

504 U. S. 555, 560–561 (1992). 

Plaintiffs James Thole and Sherry Smith are two retired 

participants in U. S. Bank’s retirement plan. Of decisive 

importance to this case, the plaintiffs’ retirement plan is a 

defined-benefit plan, not a defined-contribution plan. In a 

defined-benefit plan, retirees receive a fixed payment each

month, and the payments do not fluctuate with the value of

the plan or because of the plan fiduciaries’ good or bad investment decisions. By contrast, in a defined-contribution 

plan, such as a 401(k) plan, the retirees’ benefits are typically tied to the value of their accounts, and the benefits can 

turn on the plan fiduciaries’ particular investment decisions. See Beck v. PACE Int’l Union, 551 U. S. 96, 98 

(2007); Hughes Aircraft Co. v. Jacobson, 525 U. S. 432, 439– 
 

 

2 THOLE v. U. S. BANK N. A. 

Opinion of the Court 

440 (1999).

As retirees and vested participants in U. S. Bank’s defined-benefit plan, Thole receives $2,198.38 per month, and 

Smith receives $42.26 per month, regardless of the plan’s 

value at any one moment and regardless of the investment 

decisions of the plan’s fiduciaries. Thole and Smith have 

been paid all of their monthly pension benefits so far, and 

they are legally and contractually entitled to receive those 

same monthly payments for the rest of their lives. 

Even though the plaintiffs have not sustained any monetary injury, they filed a putative class-action suit against

U. S. Bank and others (collectively, U. S. Bank) for alleged 

mismanagement of the defined-benefit plan. The alleged

mismanagement occurred more than a decade ago, from

2007 to 2010. The plaintiffs sued under ERISA, the aptly

named Employee Retirement Income Security Act of 1974, 

88 Stat. 829, as amended, 29 U. S. C. §1001 et seq. The 

plaintiffs claimed that the defendants violated ERISA’s duties of loyalty and prudence by poorly investing the assets

of the plan. The plaintiffs requested that U. S. Bank repay 

the plan approximately $750 million in losses that the plan

allegedly suffered. The plaintiffs also asked for injunctive

relief, including replacement of the plan’s fiduciaries. See 

ERISA §§502(a)(2), (3), 29 U. S. C. §§1132(a)(2), (3). 

No small thing, the plaintiffs also sought attorney’s fees.

In the District Court, the plaintiffs’ attorneys requested at 

least $31 million in attorney’s fees. 

The U. S. District Court for the District of Minnesota dismissed the case, and the U. S. Court of Appeals for the

Eighth Circuit affirmed on the ground that the plaintiffs 

lack statutory standing. 873 F. 3d 617 (2017). We granted

certiorari. 588 U. S. ___ (2019).

We affirm the judgment of the U. S. Court of Appeals for 

the Eighth Circuit on the ground that the plaintiffs lack Article III standing. Thole and Smith have received all of 

their monthly benefit payments so far, and the outcome of 
Cite as: 590 U. S. ____ (2020) 3 

Opinion of the Court 

this suit would not affect their future benefit payments. If 

Thole and Smith were to lose this lawsuit, they would still

receive the exact same monthly benefits that they are already slated to receive, not a penny less. If Thole and Smith 

were to win this lawsuit, they would still receive the exact 

same monthly benefits that they are already slated to receive, not a penny more. The plaintiffs therefore have no

concrete stake in this lawsuit. To be sure, their attorneys

have a stake in the lawsuit, but an “interest in attorney’s

fees is, of course, insufficient to create an Article III case or 

controversy where none exists on the merits of the underlying claim.” Lewis v. Continental Bank Corp., 494 U. S. 472, 

480 (1990); see Steel Co. v. Citizens for Better Environment, 

523 U. S. 83, 107 (1998) (same). Because the plaintiffs

themselves have no concrete stake in the lawsuit, they lack 

Article III standing. 

* * * 

If Thole and Smith had not received their vested pension 

benefits, they would of course have Article III standing to 

sue and a cause of action under ERISA §502(a)(1)(B) to recover the benefits due to them. See 29 U. S. C. 

§1132(a)(1)(B). But Thole and Smith have received all of 

their monthly pension benefits so far, and they will receive

those same monthly payments for the rest of their lives. 

To nonetheless try to demonstrate their standing to challenge alleged plan mismanagement, the plaintiffs have advanced four alternative arguments. 

First, analogizing to trust law, Thole and Smith contend 

that an ERISA defined-benefit plan participant possesses

an equitable or property interest in the plan, meaning in 

essence that injuries to the plan are by definition injuries

to the plan participants. Thole and Smith contend, in other 

words, that a plan fiduciary’s breach of a trust-law duty of 

prudence or duty of loyalty itself harms ERISA defined-benefit plan participants, even if the participants themselves 
 

 

 

 

 

4 THOLE v. U. S. BANK N. A. 

Opinion of the Court 

have not suffered (and will not suffer) any monetary losses.

The basic flaw in the plaintiffs’ trust-based theory of

standing is that the participants in a defined-benefit plan

are not similarly situated to the beneficiaries of a private 

trust or to the participants in a defined-contribution plan. 

See Varity Corp. v. Howe, 516 U. S. 489, 497 (1996) (trust

law informs but does not control interpretation of ERISA).

In the private trust context, the value of the trust property 

and the ultimate amount of money received by the beneficiaries will typically depend on how well the trust is managed, so every penny of gain or loss is at the beneficiaries’ 

risk. By contrast, a defined-benefit plan is more in the nature of a contract. The plan participants’ benefits are fixed 

and will not change, regardless of how well or poorly the

plan is managed. The benefits paid to the participants in a

defined-benefit plan are not tied to the value of the plan.

Moreover, the employer, not plan participants, receives any 

surplus left over after all of the benefits are paid; the employer, not plan participants, is on the hook for plan shortfalls. See Beck, 551 U. S., at 98–99. As this Court has 

stated before, plan participants possess no equitable or 

property interest in the plan. See Hughes Aircraft Co., 525 

U. S., at 439–441; see also LaRue v. DeWolff, Boberg & Associates, Inc., 552 U. S. 248, 254–256 (2008). The trust-law 

analogy therefore does not fit this case and does not support

Article III standing for plaintiffs who allege mismanagement of a defined-benefit plan. 

Second, Thole and Smith assert standing as representatives of the plan itself. But in order to claim “the interests 

of others, the litigants themselves still must have suffered 

an injury in fact, thus giving” them “a sufficiently concrete

interest in the outcome of the issue in dispute.” Hollingsworth v. Perry, 570 U. S. 693, 708 (2013) (internal quotation marks omitted); cf. Gollust v. Mendell, 501 U. S. 115, 

125–126 (1991) (suggesting that shareholder must “main-
Cite as: 590 U. S. ____ (2020) 5 

Opinion of the Court 

tain some continuing financial stake in the litigation” in order to have Article III standing to bring an insider trading 

suit on behalf of the corporation); Craig v. Boren, 429 U. S. 

190, 194–195 (1976) (vendor who “independently” suffered 

an Article III injury in fact could then assert the rights of 

her customers). The plaintiffs themselves do not have a 

concrete stake in this suit. 

The plaintiffs point to the Court’s decisions upholding the

Article III standing of assignees—that is, where a party’s 

right to sue has been legally or contractually assigned to

another party. But here, the plan’s claims have not been

legally or contractually assigned to Thole or Smith. Cf. 

Sprint Communications Co. v. APCC Services, Inc., 554 

U. S. 269, 290 (2008); Vermont Agency of Natural Resources 

v. United States ex rel. Stevens, 529 U. S. 765, 771–774 

(2000) (qui tam statute makes a relator a partial assignee 

and “gives the relator himself an interest in the lawsuit”)

(emphasis deleted). The plaintiffs’ invocation of cases involving guardians, receivers, and executors falls short for

basically the same reason. The plaintiffs have not been legally or contractually appointed to represent the plan. 

Third, in arguing for standing, Thole and Smith stress 

that ERISA affords the Secretary of Labor, fiduciaries, beneficiaries, and participants—including participants in a defined-benefit plan—a general cause of action to sue for restoration of plan losses and other equitable relief. See 

ERISA §§502(a)(2), (3), 29 U. S. C. §§1132(a)(2), (3). But 

the cause of action does not affect the Article III standing 

analysis. This Court has rejected the argument that “a

plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right 

and purports to authorize that person to sue to vindicate 

that right.” Spokeo, Inc. v. Robins, 578 U. S. ___, ___ (2016) 

(slip op., at 9); see Raines v. Byrd, 521 U. S. 811, 820, n. 3 

(1997). The Court has emphasized that “Article III stand-
 

6 THOLE v. U. S. BANK N. A. 

Opinion of the Court 

ing requires a concrete injury even in the context of a statutory violation.” Spokeo, 578 U. S., at ___ (slip op., at 9). 

Here, the plaintiffs have failed to plausibly and clearly allege a concrete injury.1 

Fourth, Thole and Smith contend that if defined-benefit 

plan participants may not sue to target perceived fiduciary 

misconduct, no one will meaningfully regulate plan fiduciaries. For that reason, the plaintiffs suggest that definedbenefit plan participants must have standing to sue. But 

this Court has long rejected that kind of argument for Article III standing. See Valley Forge Christian College v. 

Americans United for Separation of Church and State, Inc., 

454 U. S. 464, 489 (1982) (the “‘assumption that if respondents have no standing to sue, no one would have standing, 

is not a reason to find standing’”) (quoting Schlesinger v. 

Reservists Comm. to Stop the War, 418 U. S. 208, 227 

(1974)).

In any event, the argument rests on a faulty premise in

this case because defined-benefit plans are regulated and 

monitored in multiple ways. To begin with, employers and

their shareholders often possess strong incentives to root

out fiduciary misconduct because the employers are entitled to the plan surplus and are often on the hook for plan 

shortfalls. Therefore, about the last thing a rational employer wants or needs is a mismanaged retirement plan. Cf. 

ERISA §4062(a), 29 U. S. C. §1362(a). Moreover, ERISA expressly authorizes the Department of Labor to enforce 

ERISA’s fiduciary obligations. See ERISA §502(a)(2), 29 

U. S. C. §1132(a)(2). And the Department of Labor has a 

substantial motive to aggressively pursue fiduciary misconduct, particularly to avoid the financial burden of failed defined-benefit plans being backloaded onto the Federal Government. When a defined-benefit plan fails and is unable 

—————— 1To be clear, our decision today does not concern suits to obtain plan

information. See, e.g., ERISA §502(a)(1)(A), 29 U. S. C. §1132(a)(1)(A). 
 

Cite as: 590 U. S. ____ (2020) 7 

Opinion of the Court 

to pay benefits to retirees, the federal Pension Benefit

Guaranty Corporation is required by law to pay the vested

pension benefits of the retirees, often in full. The Department of Labor is well positioned to understand the relationship between plan failure and the PBGC because, by law,

the PBGC operates within the Department of Labor, and

the Secretary of Labor chairs the Board of the PBGC. See 

ERISA §§4002(a), (d), 29 U. S. C. §§1302(a), (d). On top of

all that, fiduciaries (including trustees who are fiduciaries) 

can sue other fiduciaries—and they would have good reason

to sue if, as Thole and Smith posit, one fiduciary were using 

the plan’s assets as a “personal piggybank.” Brief for Petitioners 2. In addition, depending on the nature of the fiduciary misconduct, state and federal criminal laws may apply. See, e.g., 18 U. S. C. §§664, 1954; ERISA §514(b)(4), 29 

U. S. C. §1144(b)(4). In short, under ERISA, fiduciaries 

who manage defined-benefit plans face a regulatory phalanx. 

In sum, none of the plaintiffs’ four theories supports their 

Article III standing in this case.

One last wrinkle remains. According to the plaintiffs’ 

amici, plan participants in a defined-benefit plan have

standing to sue if the mismanagement of the plan was so 

egregious that it substantially increased the risk that the 

plan and the employer would fail and be unable to pay the

participants’ future pension benefits. Cf. Clapper v. Amnesty Int’l USA, 568 U. S. 398, 414, n. 5 (2013); Lee v. Verizon Communications, Inc., 837 F. 3d 523, 545–546 (CA5

2016); David v. Alphin, 704 F. 3d 327, 336–338 (CA4 2013). 

But the plaintiffs do not assert that theory of standing in

this Court. In any event, the plaintiffs’ complaint did not

plausibly and clearly claim that the alleged mismanagement of the plan substantially increased the risk that the

plan and the employer would fail and be unable to pay the

plaintiffs’ future pension benefits. It is true that the plaintiffs’ complaint alleged that the plan was underfunded for a 
 

 

 

 

 

8 THOLE v. U. S. BANK N. A. 

Opinion of the Court 

period of time. But a bare allegation of plan underfunding 

does not itself demonstrate a substantially increased risk 

that the plan and the employer would both fail. Cf. LaRue, 

552 U. S., at 255 (“Misconduct by the administrators of a

defined benefit plan will not affect an individual’s entitlement to a defined benefit unless it creates or enhances the 

risk of default by the entire plan”).2 

* * * 

Courts sometimes make standing law more complicated 

than it needs to be. There is no ERISA exception to Article

III. And under ordinary Article III standing analysis, the

plaintiffs lack Article III standing for a simple, commonsense reason: They have received all of their vested

pension benefits so far, and they are legally entitled to receive the same monthly payments for the rest of their lives.

Winning or losing this suit would not change the plaintiffs’ 

monthly pension benefits. The plaintiffs have no concrete 

stake in this dispute and therefore lack Article III standing. 

We affirm the judgment of the U. S. Court of Appeals for

the Eighth Circuit. 

It is so ordered. 

—————— 2 Even if a defined-benefit plan is mismanaged into plan termination,

the federal PBGC by law acts as a backstop and covers the vested pension

benefits up to a certain amount and often in full. For example, if the 

plan and the employer in this case were to fail, the PBGC would be required to pay these two plaintiffs all of their vested pension benefits in

full. See ERISA §§4022(a), (b), 29 U. S. C. §§1322(a), (b); Tr. of Oral Arg.

18–19; see also Congressional Research Service, Pension Benefit Guaranty Corporation (PBGC): A Primer 1 (2019); PBGC, General FAQs

About PBGC, https://www.pbgc.gov/about/faq/general-faqs-about-pbgc. 

Any increased-risk-of-harm theory of standing therefore might not be

available for plan participants whose benefits are guaranteed in full by

the PBGC. But we need not decide that question in this case. 
_________________ 

_________________ 

Cite as: 590 U. S. ____ (2020) 1 

THOMAS, J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 17–1712 

JAMES J. THOLE, ET AL., PETITIONERS v. 

U. S. BANK N. A., ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE EIGHTH CIRCUIT 

[June 1, 2020]

 JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,

concurring. 

I agree with the Court’s opinion, which correctly applies

our precedents and concludes that petitioners lack standing. I also agree that “[c]ourts sometimes make standing 

law more complicated than it needs to be.” Ante, at 8. I 

write separately to observe that by requiring us to engage

with petitioners’ analogies to trust law, our precedents unnecessarily complicate this case.

The historical restrictions on standing provide a simpler 

framework. Article III vests “[t]he judicial Power of the 

United States” in the federal courts and specifies that it

shall extend to enumerated categories of “Cases” and “Controversies.” §§1, 2. “To understand the limits that standing 

imposes on ‘the judicial Power,’ . . . we must ‘refer directly 

to the traditional, fundamental limitations upon the powers 

of common-law courts.’” Spokeo, Inc. v. Robins, 578 U. S. 

___, ___ (2016) (THOMAS, J., concurring) (slip op., at 2) 

(quoting Honig v. Doe, 484 U. S. 305, 340 (1988) (Scalia, J., 

dissenting)); see also Muskrat v. United States, 219 U. S. 

346, 356–357 (1911) (observing that the “judicial power 

with the right to determine ‘cases’ and ‘controversies’” has 

long referred to “suit[s] instituted according to the regular

course of judicial procedure”).

“Common-law courts imposed different limitations on a 
 

 

 

2 THOLE v. U. S. BANK N. A. 

THOMAS, J., concurring 

plaintiff ’s right to bring suit depending on the type of right 

the plaintiff sought to vindicate.” Spokeo, 578 U. S., at ___ 

(THOMAS, J., concurring) (slip op., at 2). Rights were typically divided into private rights and public rights. Private 

rights are those “‘belonging to individuals, considered as individuals.’” Ibid. (quoting 3 W. Blackstone, Commentaries 

*2); see also Woolhandler & Nelson, Does History Defeat 

Standing Doctrine? 102 Mich. L. Rev. 689, 693 (2004). Public rights are “owed ‘to the whole community, considered as

a community, in its social aggregate capacity.’” Spokeo, supra, at ___ (THOMAS, J., concurring) (slip op., at 3) (quoting 

4 Blackstone, supra, at *5); see also Woolhandler & Nelson, 

supra, at 693. 

Petitioners claim violations of private rights under the

Employee Retirement Income Security Act of 1974 

(ERISA). “In a suit for the violation of a private right, 

courts historically presumed that the plaintiff suffered a 

de facto injury [if] his personal, legal rights [were] invaded.” 

Spokeo, supra, at ___ (THOMAS, J., concurring) (slip op., at 

2). In this case, however, none of the rights identified by

petitioners belong to them. The fiduciary duties created by

ERISA are owed to the plan, not petitioners. See 29 U. S. C. 

§§1104(a)(1), 1105(a), 1106(a)(1), 1106(b), 1109(a). As participants in a defined benefit plan, petitioners have no legal 

or equitable ownership interest in the plan assets. See ante, 

at 4. There has been no assignment of the plan’s rights by 

ERISA or any contract. See ante, at 5. And petitioners cannot rely on ERISA §502(a). Although it establishes certain 

causes of action, it creates no private right. See §1132(a).

There is thus no need to analogize petitioners’ complaint 

to trust law actions, derivative actions, qui tam actions, or 

anything else. We need only recognize that the private

rights that were allegedly violated do not belong to petitioners under ERISA or any contract.

Our ERISA precedents have especially complicated the 
Cite as: 590 U. S. ____ (2020) 3 

THOMAS, J., concurring 

question of standing in this case due to their misinterpretations of the statute. I continue to object to this Court’s 

practice of using the common law of trusts as the “starting

point” for interpreting ERISA. Varity Corp. v. Howe, 516 

U. S. 489, 497 (1996). “[I]n ‘every case involving construction of a statute,’ the ‘starting point . . . is the language itself.’” Id., at 528 (THOMAS, J., dissenting) (quoting Ernst & 

Ernst v. Hochfelder, 425 U. S. 185, 197 (1976); ellipsis in 

original). This is especially true for ERISA because its 

“statutory definition of a fiduciary departs from the common law.” Varity, supra, at 528. The Court correctly applies Varity here, but in an appropriate case, we should reconsider our reliance on loose analogies in both our 

standing and ERISA jurisprudence. 
_________________ 

_________________ 

Cite as: 590 U. S. ____ (2020) 1 

SOTOMAYOR, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 17–1712 

JAMES J. THOLE, ET AL., PETITIONERS v. 

U. S. BANK N. A., ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE EIGHTH CIRCUIT 

[June 1, 2020]

 JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG, 

JUSTICE BREYER, and JUSTICE KAGAN join, dissenting. 

The Court holds that the Constitution prevents millions

of pensioners from enforcing their rights to prudent and

loyal management of their retirement trusts. Indeed, the 

Court determines that pensioners may not bring a federal 

lawsuit to stop or cure retirement-plan mismanagement

until their pensions are on the verge of default. This conclusion conflicts with common sense and longstanding precedent. 

I 

A 

ERISA1 protects “the interests of participants in employee benefit plans and their beneficiaries.” 29 U. S. C. 

§1001(b). Chief among these safeguards is that “all assets

of an employee benefit plan” must “be held in trust by one

or more trustees” for “the exclusive purposes of providing 

benefits to participants in the plan and their beneficiaries.” 

§§1103(a), (c)(1). A retirement plan’s assets “shall never inure to the benefit of any employer.” §1103(c)(1).

Because ERISA requires that retirement-plan assets be 

—————— 1Employee Retirement Income Security Act of 1974, 88 Stat. 829, as 

amended, 29 U. S. C. §1001 et seq. 
 

 

2 THOLE v. U. S. BANK N. A. 

SOTOMAYOR, J., dissenting 

held in trust, it imposes on the trustees and other plan managers “‘strict standards’” of conduct “‘derived from the common law of trusts.’” Fifth Third Bancorp v. Dudenhoeffer, 

573 U. S. 409, 416 (2014) (quoting Central States, Southeast 

& Southwest Areas Pension Fund v. Central Transport, Inc., 

472 U. S. 559, 570 (1985)). These “fiduciary duties” obligate

the trustees and managers to act prudently and loyally,

looking out solely for the best interest of the plan’s participants and beneficiaries—typically, the employees who sacrifice wages today to secure their retirements tomorrow. 

§§1104, 1106. Not surprisingly, ERISA fiduciaries owe duties not only to the plan they manage, but also “to the beneficiaries” and participants for whom they manage it. Harris Trust and Sav. Bank v. Salomon Smith Barney Inc., 530 

U. S. 238, 241–242, 250 (2000). 

If a fiduciary flouts these stringent standards, ERISA

provides a cause of action and makes the fiduciary personally liable. §§1109, 1132. The United States Secretary of

Labor, a plan participant or beneficiary, or another fiduciary may sue for “appropriate relief under section 1109.”

§1132(a)(2); see also §1132(a)(3) (permitting participants,

beneficiaries, or fiduciaries to bring suit “to enjoin any act 

or practice which violates any provision of this subchapter 

or the terms of the plan”). Section 1109’s remedies include 

restoration of lost assets, disgorgement of ill-gained profits, 

and removal of the offending fiduciaries. §1109(a). 

B 

Petitioners allege that, as of 2007, respondents breached 

their fiduciary duty of loyalty by investing pension-plan assets in respondents’ own mutual funds and by paying themselves excessive management fees. (Petitioners further 

contend that this self-dealing persists today.) According to

the complaint, the fiduciaries also made imprudent investments that allowed them to manipulate accounting rules,

boost their reported incomes, inflate their stock prices, and 
Cite as: 590 U. S. ____ (2020) 3 

SOTOMAYOR, J., dissenting 

exercise lucrative stock options to their own (and their

shareholders’) benefit.

Then came the Great Recession. In 2008, the retirement 

plan lost $1.1 billion, allegedly $748 million more than a 

properly managed plan would have lost. So some of the 

plan’s participants sued under 29 U. S. C. §1132(a) for the

relief Congress contemplated: restoration of losses, disgorgement of respondents’ ill-gotten profits and fees, removal of the disloyal fiduciaries, and an injunction to stop

the ongoing breaches. Faced with this lawsuit, respondents 

returned to the plan about $311 million (less than half 

of what the plan had lost) and none of the profits respondents had unlawfully gained. See 873 F. 3d 617, 630–631 

(CA8 2018). 

II 

In the Court’s words, the question here is whether petitioners have alleged a “concrete” injury to support their constitutional standing to sue. Ante, at 3. They have for at 

least three independent reasons. 

A 

First, petitioners have an interest in their retirement

plan’s financial integrity, exactly like private trust beneficiaries have in protecting their trust. By alleging a $750

million injury to that interest, petitioners have established 

their standing. 

1 

This Court typically recognizes an “injury in fact” where

the alleged harm “has a close relationship to” one “that has 

traditionally been regarded as providing a basis for a lawsuit in English or American courts.” Spokeo, Inc. v. Robins, 

578 U. S. ___, ___ (2016) (slip op., at 9). Thus, the Court 

acknowledges that “private trust” beneficiaries have standing to protect the assets in which they have an “equitable”

interest. Ante, at 3–4. The critical question, then, is 
 

 

 

4 THOLE v. U. S. BANK N. A. 

SOTOMAYOR, J., dissenting 

whether petitioners have an equitable interest in their retirement plan’s assets even though their pension payments

are fixed. 

They do. ERISA expressly required the creation of a trust

in which petitioners are the beneficiaries: “[A]ll assets” of

the plan “shall be held in trust” for petitioners’ “exclusive”

benefit. 29 U. S. C. §§1103(a), (c)(1); see also §1104(a)(1).2 

These requirements exist regardless whether the employer

establishes a defined-benefit or defined-contribution plan.

§1101(a). Similarly, the Plan Document governing petitioners’ defined-benefit plan states that, at “‘all times,’” all plan

assets “‘shall’” be in a “‘trust fund’” managed for the participants’ and beneficiaries’ “‘exclusive benefit.’” App. 60– 

61. The Plan Document also gives petitioners a residual

interest in the trust fund’s assets: It instructs that, “[u]pon

termination of the Plan, each Participant [and] Beneficiary” 

shall look to “the assets of the [trust f]und” to “provide the 

benefits otherwise apparently promised in this Plan.” Record in No. 13–cv–2687 (D Minn.), Doc. 107–1, p. 75. This 

arrangement confers on the “participants [and] beneficiaries” of a defined-benefit plan an equitable stake, or a “common interest,” in “the financial integrity of the plan.” Massachusetts Mut. Life Ins. Co. v. Russell, 473 U. S. 134, 142, 

n. 9 (1985).

Petitioners’ equitable interest finds ample support in traditional trust law. “The creation of a trust,” like the one 

here, provides beneficiaries “an equitable interest in the

subject matter of the trust.” Restatement (Second) of 

—————— 2Generally, “a trust is created when one person (a ‘settlor’ or ‘grantor’)

transfers property to a third party (a ‘trustee’) to administer for the benefit of another (a ‘beneficiary’).” North Carolina Dept. of Revenue v. Kimberley Rice Kaestner 1992 Family Trust, 588 U. S. ___, ___ (2019) (slip

op., at 2); see also Restatement (Second) of Trusts §2 (1957). Neither the 

Court nor respondents dispute that petitioners’ pension fund meets these 

elements. 
 

Cite as: 590 U. S. ____ (2020) 5 

SOTOMAYOR, J., dissenting 

Trusts §74, Comment a, p. 192 (1957); see Blair v. Commissioner, 300 U. S. 5, 13 (1937). Courts have long recognized

that this equitable interest gives beneficiaries a basis to 

“have a breach of trust enjoined and . . . redress[ed].” Ibid.; 

see also Spokeo, 578 U. S., at ___ (slip op., at 9). That is, a 

beneficiary’s equitable interest allows her to “maintain a

suit” to “compel the trustee to perform his duties,” to “enjoin

the trustee from committing a breach of trust,” to “compel

the trustee to redress a breach of trust,” and to “remove the 

trustee.” Restatement (Second) of Trusts §199; see also id., 

§205 (beneficiary may require a trustee to restore “any loss 

or depreciation in value of the trust estate” and “any profit 

made by [the trustee] through the breach of trust”).3 

So too here. Because respondents’ alleged mismanagement lost the pension fund hundreds of millions of dollars, 

petitioners have stated an injury to their equitable property

interest in that trust. 

2 

The Court, by contrast, holds that participants and beneficiaries in a defined-benefit plan have no stake in their 

plan’s assets. Ante, at 4. In other words, the Court treats 

beneficiaries as mere bystanders to their own pensions.

That is wrong on several scores. For starters, it creates 

a paradox: In one breath, the Court determines that petitioners have “no equitable or property interest” in their 

plan’s assets, ante, at 4; in another, the Court concedes that 

petitioners have an enforceable interest in receiving their

“monthly pension benefits,” ante, at 2. Benefits paid from 

where? The plan’s assets, obviously. Precisely because petitioners have an interest in payments from their trust 

—————— 3Even contingent and discretionary beneficiaries (those who might not

ever receive any assets from the trust) can sue to protect the trust absent

a personal financial loss (or an imminent risk of loss). See A. Hess, G. 

Bogert, & G. Bogert, Law of Trusts and Trustees §871 (June 2019 update) (Bogert & Bogert) (listing cases). 
 

 

 

 

6 THOLE v. U. S. BANK N. A. 

SOTOMAYOR, J., dissenting 

fund, they have an interest in the integrity of the assets 

from which those payments come. See Russell, 473 U. S., 

at 142, n. 9. 

The Court’s contrary conclusion is unrecognizable in the 

fundamental trust law that both ERISA and the Plan Document expressly incorporated. If the participants and

beneficiaries in a defined-benefit plan did not have equitable title to the plan’s assets, then no one would. Yet that 

would mean that no “trust” exists, contrary to the plain

terms of both ERISA and the Plan Document. See 29 

U. S. C. §1103(a); App. 60; see also n. 2, supra; Blair, 300 

U. S., at 13; Bogert & Bogert §1; Restatement (Second) of 

Trusts §74, Comment a, at 192. 

Recognizing this problem, the Court asserts that, despite 

our case law, ERISA’s text, and petitioners’ Plan Document, 

trust law is not relevant at all. The Court announces that 

all “plaintiffs who allege mismanagement of a defined-benefit plan,” regardless of their plan terms, cannot invoke a

“trust-law analogy” to “support Article III standing.” Ante, 

at 4. 

That categorical conclusion has no basis in logic or law.

Logically, the Court’s reasoning relies on tautology. To distinguish an ERISA trust fund from a private trust fund, the 

Court observes that petitioners’ payments have not “fluctuate[d] with the value of the plan or because of the plan fiduciaries’ good or bad investment decisions” in the past, 

ante, at 1, so petitioners will necessarily continue to receive

full payments “for the rest of their lives,” no matter the outcome of this suit, ante, at 3. But that is circular: Petitioners 

will receive benefits indefinitely because they receive benefits now? The Court does not explain how the pension could 

satisfy its monthly obligation if, as petitioners allege, the 

plan fiduciaries drain the pool from which petitioners’ fixed 

income streams flow. 

Legally, the Court’s analysis lists distinctions without a

difference. First, the Court writes that a trust promising 
 

Cite as: 590 U. S. ____ (2020) 7 

SOTOMAYOR, J., dissenting 

fixed payments is not a trust because the promise “will not 

change, regardless of how well or poorly the [trust] is managed.” Ante, at 4. That does not follow (a promise of payment differs from an actual payment) and it does not disprove a trust. Trusts vary in their terms, to be sure. See 

Bogert & Bogert §181 (“The settlor has great freedom in the 

selection of the beneficiaries and their interests”). But regardless whether a trust creates a “present interest” in “immediate enjoyment” of the trust property or “a future interest” in “receiv[ing] trust assets or benefits at a later time,” 

the beneficiary “always” has an “equitable” stake. Ibid. 

Second, the Court states that “the employer, not plan participants, receives any surplus left over after all of the benefits are paid” and “the employer, not plan participants, is

on the hook for plan shortfalls.” Ante, at 4; see also ante, 

at 7 (noting that “the federal Pension Benefit Guaranty 

Corporation is required by law to pay” some benefits if a 

plan fails). But that does not distinguish ERISA from 

standard trust law, either. It does not matter that other 

parties besides beneficiaries may have a residual stake in

trust assets; a beneficiary with a life-estate interest in payments from a trust still has an equitable interest. See 

Bogert & Bogert §706. Even life-beneficiaries may “requir[e]” the trustee “to pay the trust the amount necessary

to place the trust account in the position in which it would 

have been, had the [trustee’s fiduciary] duty been performed.” Ibid. If anything, petitioners’ equitable interests 

are stronger than those of their common-law counterparts;

the Plan Document provides petitioners a residual interest

in the pension fund’s assets even after the trust terminates.

See Record in No. 13–cv–2687, Doc. 107–1, at 75. 

Nor is it relevant whether additional parties (including

an insurance carrier) are “on the hook” for plan shortfalls

after a loss occurs. Cf. ante, at 4, 6, 7, 8, n. 2. The Court 

appears to conclude that insurance (or other protections to 
 

 

8 THOLE v. U. S. BANK N. A. 

SOTOMAYOR, J., dissenting 

remedy trust losses) would deprive beneficiaries of their equitable interests in their trusts. See ibid. But the Court 

cites nothing supporting that proposition. To the contrary,

it is well settled that beneficiaries retain equitable interests 

in trust assets even when those assets are insured or replenished. See Bogert & Bogert §599. Some States and 

trusts require that the “property of a trust . . . be insured” 

or similarly protected; indeed, some jurisdictions impose on 

trustees a fiduciary “duty to insure.” Ibid. (collecting authorities). None of those authorities suggests that beneficiaries lose their equitable interests as a result, and none 

suggests that the law excuses a fiduciary’s malfeasance 

simply because other sources may help provide relief. The 

Court’s opposing view—that employer liability and insurance pardon a trustee’s wrongdoing from a beneficiary’s

suit—has no support in law.

Third, the Court draws a line between a trust and a contract, ante, at 4, but this too is insignificant here. The Court 

declares that petitioners’ pension plan “is more in the nature of a contract,” ibid. ̧ but then overlooks that the socalled contract creates a trust. The Plan Document expressly requires that petitioners’ pension funds be held in a 

“trust” exclusively for petitioners’ benefit. App. 60–61. The 

Court’s statement that “the employer, not plan participants, receives any surplus left over after all of the benefits 

are paid,” cf. ante, at 4, actually proves that a trust exists.

The reason the employer does not receive any residual until

“after all of the benefits are paid,” ibid., is because the Plan 

Document provides petitioners an enforceable residual interest, Record in No. 13–cv–2687, Doc. 107–1, at 75. It is 

telling that the Court does not cite, let alone analyze, the

“contract” governing petitioners’ trust fund. 

Last, the Court cites inapposite case law. It asserts that 

“this Court has stated” that “plan participants possess no 

equitable or property interest in the plan.” Ante, at 4 (citing 

Hughes Aircraft Co. v. Jacobson, 525 U. S. 432 (1999), and 
 

 

Cite as: 590 U. S. ____ (2020) 9 

SOTOMAYOR, J., dissenting 

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

(2008)). But precedent has said no such thing. Quite the 

opposite: Russell explained that defined-benefit-plan beneficiaries have a “common interest” in the “financial integrity” of their defined-benefit plan. 473 U. S., at 142, n. 9. 

Neither Hughes nor LaRue suggests otherwise. Hughes 

explained that a defined-benefit-plan beneficiary does not 

have “a claim to any particular asset that composes a part 

of the plan’s general asset pool.” 525 U. S., at 440. But that 

statement concerned whether the beneficiaries had a legal 

right to extra payments after the plan’s assets grew. Id., at 

436–437. Whether a beneficiary has a legal claim to payment when a plan gains money says nothing about whether 

a beneficiary has an equitable interest to restore assets 

when a plan loses money. Hughes, in fact, invited a suit 

like petitioners’: The Court suggested that the plaintiffs 

could have prevailed had they “allege[d] that [the employer] 

used any of the assets for a purpose other than to pay its 

obligations to the Plan’s beneficiaries.” Id., at 442–443. 

Equally telling is that Hughes resolved the beneficiaries’ 

breach-of-fiduciary claims on the merits without doubting 

whether the plaintiffs had standing to assert them. See id., 

at 443–446; Steel Co. v. Citizens for Better Environment, 

523 U. S. 83, 94–95 (1998) (explaining this Court’s independent duty to assure itself of Article III standing). 

LaRue is even less helpful to today’s Court. That case 

involved a defined-contribution plan, not a defined-benefit 

plan. 552 U. S., at 250. It was about remedies, not rights. 

See id., at 256. And it stated that although “individual injuries” may occur from ERISA plan mismanagement, the 

statutory provision at issue required that the remedy go to 

the plan. Ibid. (discussing 29 U. S. C. §1132(a)(2)). LaRue 

said nothing about standing and nothing about ERISA’s 
 

10 THOLE v. U. S. BANK N. A. 

SOTOMAYOR, J., dissenting 

other statutory remedies.4 In fact, LaRue confirmed that 

ERISA beneficiaries like petitioners may sue fiduciaries for 

“‘any profit which would have accrued to the [plan] if there 

had been no breach of trust,’” 552 U. S., at 254, n. 4, or 

where “fiduciary breaches . . . impair the value of plan assets,” id., at 256. Because petitioners bring those kinds of 

claims, LaRue supports their standing. 

B 

Second, petitioners have standing because a breach of 

fiduciary duty is a cognizable injury, regardless whether

that breach caused financial harm or increased a risk of 

nonpayment. 

1 

A beneficiary has a concrete interest in a fiduciary’s loyalty and prudence. For over a century, trust law has provided that breach of “a fiduciary or trust relation” makes 

the trustee “suable in equity.” Clews v. Jamieson, 182 U. S. 

461, 480–481 (1901). That is because beneficiaries have an 

enforceable “right that the trustee shall perform the trust

in accordance with the directions of the trust instrument 

and the rules of equity.” Bogert & Bogert §861; see also

Restatement (Second) of Trusts §199 (trust beneficiary may

“maintain a suit” for breach of fiduciary duty).

That interest is concrete regardless whether the beneficiary suffers personal financial loss. A beneficiary may sue 

a trustee for restitution or disgorgement, remedies that recognize the relevant harm as the trustee’s wrongful gain. 

Through restitution law, trustees are “subject to liability” if 

they are unjustly enriched by a “‘violation of [a beneficiary]’s legally protected rights,’” like a breach of fiduciary 

—————— 4The Court expressly declined to address other relief like that provided 

under §1132(a)(3), see LaRue, 552 U. S., at 252, a provision that petitioners invoke here. 
 

Cite as: 590 U. S. ____ (2020) 11 

SOTOMAYOR, J., dissenting 

duty. Restatement (Third) of Restitution and Unjust Enrichment §1, and Comment a, p. 3 (2010). Similarly, disgorgement allows a beneficiary to “stri[p]” the trustee of “a

wrongful gain.” Id., §3, Comment a, at 22. Our Court drew 

on these principles almost 200 years ago when it stated that

a trustee’s breach of loyalty supports a cause of action

“without any further inquiry” into gain or loss to a trust or 

its beneficiaries. Michoud v. Girod, 4 How. 503, 553 (1846); 

see also, e.g., id., at 556–557 (noting this rule’s roots in 

“English courts of chancery from an early day”); see also 

Magruder v. Drury, 235 U. S. 106, 120 (1914) (under “the 

principles governing the duty of a trustee,” it “makes no difference that the [trust] estate was not a loser in the transaction”); Bogert & Bogert §543 (similar). Put another way,

“traditional remedies” like “unjust enrichment . . . are not 

contingent on a plaintiff ’s allegation of damages beyond the 

violation of his private legal right.” Spokeo, 578 U. S., at 

___–___ (THOMAS, J., concurring) (slip op., at 2–3). 

Nor does it matter whether the beneficiaries receive the 

remedy themselves. A beneficiary may require a trustee to

“restore” assets directly “to the trust fund.” Bogert &

Bogert §861; see also Restatement (Second) of Trusts §205. 

In fact, because fiduciary duties are so paramount, the remedy need not involve money at all. A beneficiary may sue 

to “enjoin the trustee from committing a breach of trust”

and to “remove the trustee.” Id., §199. 

Congress built on this tradition by making plan fiduciaries expressly liable to restore to the plan wrongful profits 

and any losses their breach caused, and by providing for injunctive relief to stop the misconduct and remove the 

wrongdoers. See 29 U. S. C. §§1109, 1132(a)(2), (3). In doing so, Congress rejected the Court’s statement that a 

“trust-law analogy . . . does not” apply to “plaintiffs who allege mismanagement of a defined-benefit plan.” Cf. ante, at 

4. To the contrary, ERISA imposes “trust-like fiduciary 

standards,” Varity Corp. v. Howe, 516 U. S. 489, 497 (1996), 
 

 

12 THOLE v. U. S. BANK N. A. 

SOTOMAYOR, J., dissenting 

to “[r]espon[d] to deficiencies in prior law regulating [retirement] plan fiduciaries” and to provide even greater protections for defined-benefit-plan beneficiaries, Harris Trust, 

530 U. S., at 241–242; see also Spokeo, 578 U. S., at ___ (slip 

op., at 9) (historical and congressionally recognized injuries 

often support standing). 

Given all that history and ERISA’s text, this Court itself

has noted, in the defined-benefit-plan context, “that when a

trustee” breaches “his fiduciary duty to the beneficiaries,” 

the “beneficiaries may then maintain an action for restitution . . . or disgorgement.” Harris Trust, 530 U. S., at 250. 

Harris Trust confirms that ERISA incorporated “[t]he common law of trusts” to allow defined-benefit-plan beneficiaries to seek relief from fiduciary breaches. Ibid.; see also id., 

at 241–242 (noting that certain ERISA provisions “supplemen[t] the fiduciary’s general duty of loyalty to the plan’s 

beneficiaries”).5 

2 

The Court offers no reply to all the historical and statutory evidence showing petitioners’ concrete interest in prudent and loyal fiduciaries.

Instead, the Court insists again that “participants in a

defined-benefit plan are not similarly situated to the beneficiaries of a private trust,” ante, at 4, and that the “complaint did not plausibly and clearly claim that the alleged

mismanagement of the plan substantially increased the 

—————— 5Curiously, today’s Court suggests that ERISA’s efforts to bolster 

trust-law fiduciary duties actually degraded them instead. See ante, at 

4 (justifying a narrow construction of ERISA protections because “trust 

law informs but does not control interpretation of ERISA”). Yet the case 

the Court cites, Varity Corp. v. Howe, 516 U. S. 489 (1996), relied on trust 

law to establish the minimum obligations ERISA imposes on plan fiduciaries. See id., at 506 (confirming that the “ERISA fiduciary duty includes [the] common law duty of loyalty”). Today’s Court mistakes the 

floor for the ceiling. See ibid.; see also Harris Trust, 530 U. S., at 241– 

242. 
 

 

Cite as: 590 U. S. ____ (2020) 13 

SOTOMAYOR, J., dissenting 

risk that the plan and the employer would fail and be unable to pay the plaintiffs’ future pension benefits,” ante, at 7. 

The first observation is incorrect for the reasons stated 

above. But even were the Court correct that petitioners’

rights do not sound in trust law, petitioners would still have 

standing. The Court reasons that petitioners have an enforceable right to “monthly payments for the rest of their

lives” because their plan confers a “contractua[l] entitle[ment].” Ante, at 2. Under that view, the plan also confers contractual rights to loyal and prudent plan management. See App. 60–61; 29 U. S. C. §§1104, 1109. 

Thus, for the same reason petitioners could bring suit if

they did not receive payments from their plan, they could 

bring suit if they did not receive loyalty and prudence from

their fiduciaries. After all, it is well settled that breach of 

“a contract to act diligently and skil[l]fully” provides a

“groun[d] of action” in federal court. Wilcox v. Executors of 

Plummer, 4 Pet. 172, 181–182 (1830). It is also undisputed 

that “[a] breach of contract always creates a right of action,”

even when no financial “harm was caused.” Restatement 

(First) of Contracts §328, and Comment a, pp. 502–503 

(1932); see also Spokeo, 578 U. S., at ___–___ (THOMAS, J., 

concurring) (slip op., at 2–3) (“[C]ourts historically presumed that the plaintiff suffered a de facto injury merely

from having his personal, legal rights invaded” even without any “allegation of damages”). Petitioners would thus 

have standing even were they to accept the Court’s flawed 

premise.

The Court’s second statement, that petitioners have not 

alleged a substantial risk of missed payments, ante, at 7, is 

orthogonal to the issues at hand. A breach-of-fiduciaryduty claim exists regardless of the beneficiary’s personal 

gain, loss, or recovery. In rejecting petitioners’ standing 

and maintaining that “this suit would not change [petitioners’] monthly pension benefits,” ante, at 8, the Court fails to 
 

14 THOLE v. U. S. BANK N. A. 

SOTOMAYOR, J., dissenting 

distinguish the different rights on which pension-plan beneficiaries may sue. They have a right not just to their pension benefits, but also to loyal and prudent fiduciaries. See 

Warth v. Seldin, 422 U. S. 490, 500 (1975) (the standing inquiry “turns on the nature and source of the claim asserted”). Petitioners seek relief tailored to the second category, including restitution, disgorgement, and injunctive 

remedies. Cf. Great-West Life & Annuity Ins. Co. v. Knudson, 534 U. S. 204, 215–216 (2002) (explaining the various 

historical bases for ERISA’s remedies). The Court does not 

even try to explain ERISA’s (or the Plan Document’s) text 

imposing fiduciary duties, let alone this Court’s decision in 

Harris Trust supporting petitioners’ standing. And even 

though the Court briefly mentions that petitioners seek “injunctive relief, including replacement of the plan’s fiduciaries,” ante, at 2, it offers no analysis on that issue. Put differently, the Court denies petitioners standing to sue 

without analyzing all their claims to relief. 

With its focus on fiscal harm, the Court seems to suggest 

that pecuniary injury is the sine qua non of standing. The 

Court emphasizes that petitioners themselves have not 

“sustained any monetary injury” apart from their trust 

fund’s losses. Ante, at 2; see also ante, at 4. 

But injury to a plaintiff ’s wallet is not, and has never 

been, a prerequisite for standing. The Constitution permits 

federal courts to hear disputes over nonfinancial injuries 

like the harms alleged here. Spokeo, 578 U. S., at ___ (slip 

op., at 9); see also, e.g., id., at ___–___ (THOMAS, J., concurring) (slip op., at 2–3); Tennessee Elec. Power Co. v. TVA, 

306 U. S. 118, 137–138 (1939).6 In Heckler v. Mathews, 465 

—————— 6This Court has found standing in myriad cases involving noneconomic injuries. Examples include the denial or threatened impairment 

of: equal treatment, Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 

211 (1995); Northeastern Fla. Chapter, Associated Gen. Contractors of 

America v. Jacksonville, 508 U. S. 656, 666 (1993); “truthful information 
 

 

Cite as: 590 U. S. ____ (2020) 15 

SOTOMAYOR, J., dissenting 

U. S. 728 (1984), for instance, this Court recognized a plaintiff ’s standing to assert a “noneconomic” injury for discriminatory distribution of his Social Security benefits, even 

though he did not have “a substantive right to any particular amount of benefits.” Id., at 737, 739. Petitioners’ standing here is even sturdier: They assert a noneconomic injury 

for unlawful management of their retirement plan and, unlike the plaintiff in Heckler, petitioners do have a substantive right to a particular amount of benefits. Cf. ante, at 2 

(acknowledging that petitioners’ benefits are “vested” and 

that payments are “legally and contractually” required). 

None of this is disputed. In fact, the Court seems to concede all this reasoning in a footnote. See ante, at 6, n. 1. 

The Court appears to acknowledge that an ERISA beneficiary’s noneconomic right to information from the fiduciaries would support standing. See ibid. (citing 29 U. S. C. 

§1132(a)(1)(A)). Yet the Court offers no reason to think that 

a beneficiary’s noneconomic right to loyalty and prudence

from the fiduciaries is meaningfully different. 

For its part, the concurrence attempts to fill the Court’s

gaps by adding that “[t]he fiduciary duties created by 

ERISA are owed to the plan, not petitioners.” Ante, at 2 

(opinion of THOMAS, J.). But this Court has already rejected 

—————— 

concerning the availability of housing,” Havens Realty Corp. v. Coleman, 

455 U. S. 363, 373 (1982); esthetic and recreational interests, Friends of 

the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 

167, 181–182 (2000); “information which must be publicly disclosed pursuant to a statute,” Federal Election Comm’n v. Akins, 524 U. S. 11, 21 

(1998); one’s “personal, political, and professional reputation,” Meese v. 

Keene, 481 U. S. 465, 473 (1987); and the right to speak, Spokeo, 578 

U. S., at ___ (slip op., at 9) (citing Pleasant Grove City v. Summum, 555 

U. S. 460 (2009)). This Court has even said that a for-profit business has

standing to assert religious injuries. See Burwell v. Hobby Lobby Stores, 

Inc., 573 U. S. 682, 715, and n. 26 (2014). Today’s Court does not reconcile these cases with its novel financial-harm requirement; nor does the

Court explain why a breach of fiduciary duty is less concrete than the 

injuries listed above. 
 

 

 

16 THOLE v. U. S. BANK N. A. 

SOTOMAYOR, J., dissenting 

that view. Compare Varity Corp., 516 U. S., at 507 (“This 

argument fails”), with id., at 516 (THOMAS, J., dissenting). 

Nor is that argument persuasive on its own terms. The 

concurrence relies on a compound prepositional phrase

taken out of context, collecting ERISA provisions saying

that a fiduciary acts “with respect to” a plan. See ante, at 2 

(opinion of THOMAS, J.). Of course a plan fiduciary performs her duties “with respect to a plan.” 29 U. S. C. 

§1104(a)(1). After all, she manages the plan. §1102(a). But 

she does so “solely in the interest” and “for the exclusive 

purposes” of the plan’s “participants and beneficiaries.” 

§§1103(a), (c)(1), 1104(a)(1). 

In short, the concurrence gets it backwards. Congress did

not enact ERISA to protect plans as artificial entities. It 

enacted ERISA (and required trusts in the first place) to

protect the plan “participants” and “their beneficiaries.” 

§1001(b). Thus, ERISA fiduciary duties run where the statute says: to the participants and their beneficiaries. 

C 

Last, petitioners have standing to sue on their retirement

plan’s behalf. 

1 

Even if petitioners had no suable interest in their plan’s

financial integrity or its competent supervision, the plan itself would. There is no disputing at this stage that respondents’ “mismanagement” caused the plan “approximately 

$750 million in losses” still not fully reimbursed. Ante, at 2 

(majority opinion). And even under the concurrence’s view, 

respondents’ fiduciary duties “are owed to the plan.” Ante, 

at 2 (opinion of THOMAS, J.). The plan thus would have 

standing to sue under either theory discussed above.

The problem is that the plan is a legal fiction: Although 

ERISA provides that a retirement plan “may sue . . . as an 

entity,” 29 U. S. C. §1132(d)(1), someone must still do so on 
 

 

Cite as: 590 U. S. ____ (2020) 17 

SOTOMAYOR, J., dissenting 

the plan’s behalf. Typically that is the fiduciary’s job. See 

§1102(a)(1) (fiduciaries have “authority to control and manage the operation and administration of the plan”). But imagine a case like this one, where the fiduciaries refuse to 

sue because they would be the defendants. Does the Constitution compel a pension plan to let a fox guard the henhouse? 

Of course not. This Court’s representational standing 

doctrine permits petitioners to sue on their plan’s behalf.

See Food and Commercial Workers v. Brown Group, Inc., 

517 U. S. 544, 557 (1996). This doctrine “rests on the premise that in certain circumstances, particular relationships

(recognized either by common-law tradition or by statute)

are sufficient to rebut the background presumption . . . that 

litigants may not assert the rights of absent third parties.” 

Ibid. (footnotes omitted). This is especially so where, as

here, there is “some sort of impediment” to the other party’s

“effective assertion of their own rights.” R. Fallon, J. Manning, D. Meltzer, & D. Shapiro, Hart & Wechsler’s The Federal Courts and the Federal System 158 (6th ed. 2009); see 

also Powers v. Ohio, 499 U. S. 400, 410–411 (1991).

The common law has long regarded a beneficiary’s representational suit as a proper “basis for a lawsuit in English 

or American courts.” Spokeo, 578 U. S., at ___ (slip op., at 

9). When “the trustee cannot or will not” sue, a beneficiary 

may do so “as a temporary representative of the trust.”

Bogert & Bogert §869. The common law also allows “the 

terms of a trust” to “confer upon others the power to enforce

the trust,” giving that person “standing” to “bring suit 

against the trustee.” Restatement (Third) of Trusts §94,

Comment d(1), at 7. 

ERISA embraces this tradition. Sections 1132(a)(2) and 

(a)(3) authorize participants and beneficiaries to sue “in a 

representative capacity on behalf of the plan as a whole,” 

Russell, 473 U. S., at 142, n. 9, so that any “recovery” arising from the action “inures to the benefit of the plan as a 
 

 

18 THOLE v. U. S. BANK N. A. 

SOTOMAYOR, J., dissenting 

whole,” id., at 140. Perhaps for this reason, and adding to 

the incongruity in today’s outcome, some Members of this 

Court have insisted that lawsuits to enforce ERISA’s fiduciary duties “must” be brought “in a representative capacity.” Varity Corp., 516 U. S., at 516 (THOMAS, J., dissenting) (internal quotation marks omitted). 

Permitting beneficiaries to enforce their plan’s rights 

finds plenty of support in our constitutional case law. Take 

associational standing: An association may file suit “to redress its members’ injuries, even without a showing of injury to the association itself.” Food and Commercial Workers, 517 U. S., at 552. All Article III requires is that a 

member “‘would otherwise have standing to sue in their 

own right’” and that “‘the interests [the association] seeks 

to protect are germane to the organization’s purpose.’” Id., 

at 553. Petitioners’ suit here is the other side of the same 

coin: The plan would have standing to sue in its own right, 

and petitioners’ interest is to disgorge wrongful profits and 

reimburse the trust for losses, thereby preserving trust assets held for their exclusive benefit. 

Next-friend standing is another apt analog. Long “accepted [as a] basis for jurisdiction,” this doctrine allows a 

party to “appear in [federal] court on behalf of detained 

prisoners who are unable . . . to seek relief themselves.” 

Whitmore v. Arkansas, 495 U. S. 149, 162 (1990) (tracing 

the doctrine’s roots to the 17th century). Here, of course, 

petitioners’ plan cannot access the courts itself because the 

parties the Court thinks should file suit (the fiduciaries) are 

the defendants. Like a “next friend,” moreover, petitioners 

are “dedicated to the best interests” of the party they seek 

to protect, id., at 163, because the plan’s interests are petitioners’ interests.7 

—————— 7Other examples include guardians ad litem and, of course, trustees. 

E.g., Sprint Communications Co. v. APCC Services, Inc., 554 U. S. 269, 
Cite as: 590 U. S. ____ (2020) 19 

SOTOMAYOR, J., dissenting 

Congress was on well-established ground when it allowed

pension participants and beneficiaries to sue on their retirement plan’s behalf. 

2 

The Court’s conflicting conclusion starts with inapposite 

cases. It invokes Hollingsworth v. Perry, 570 U. S. 693, 708 

(2013), reasoning that “to claim ‘the interests of others, the 

litigants themselves still must have suffered an injury in

fact.’” Ante, at 4. Perry, a case about a California ballot 

initiative, is a far cry from this one. Perry found that “private parties” with no stake in the litigation “distinguishable 

from the general interest of every citizen” were not proper

representatives of the State. 570 U. S., at 707, 710. If anything, Perry supports petitioners here: This Court found 

“readily distinguishable” other representational-standing 

cases by underscoring their sound traditions. Id., at 711 

(distinguishing assignee and next-friend standing).8 A traditional beneficiary-versus-trustee claim like petitioners’ is 

exactly such a suit.

Next, the Court maintains that petitioners “have not 

been legally or contractually assigned” or “appointed” to 

—————— 

287 (2008) (noting in the Article III standing context that “federal courts

routinely entertain suits which will result in relief for parties that are 

not themselves directly bringing suit,” such as when “[t]rustees bring 

suits to benefit their trusts”); see also id., at 304–305, n. 2 (ROBERTS, 

C. J., dissenting) (“Trustees, guardians ad litem, executors, and the like

make up a settled, continuous practice ‘of the sort traditionally amenable

to, and resolved by, the judicial process’”). 8The Court cites two more cases: Gollust v. Mendell, 501 U. S. 115 

(1991), and Craig v. Boren, 429 U. S. 190 (1976). But both endorsed expansive views of standing. See Gollust, 501 U. S., at 125–127 (allowing 

indirect owners of a corporation to sue under federal securities laws); 

Craig, 429 U. S., at 194–195 (holding that a plaintiff had representational standing to assert an equal protection claim on a business patron’s 

behalf ). To the extent the Court suggests that a financial loss is necessary (or that a breach of fiduciary duty is insufficient) for standing, that 

is incorrect. See Part II–B, supra. 
 

 

20 THOLE v. U. S. BANK N. A. 

SOTOMAYOR, J., dissenting 

represent the plan. Ante, at 5. Although a formal assignment or appointment suffices for standing, it is not necessary. See, e.g., Food and Commercial Workers, 517 U. S., at 

552; Whitmore, 495 U. S., at 162. Regardless, Congress expressly and thereby legally assigned pension-plan participants and beneficiaries the right to represent their plan, including in lawsuits where the other would-be 

representative is the defendant. 29 U. S. C. §§1132(a)(2), 

(3); see also, e.g., Restatement (Third) of Trusts §94, Comment d(1), at 7 (trust terms may confer standing to sue the 

trustee). ERISA was “primarily concerned with the possible misuse of plan assets, and with remedies that would 

protect the entire plan.” Russell, 473 U. S., at 142; see also 

id., at 140–142, nn. 8–9.9 Far from “‘automatically’” conferring petitioners standing to sue or creating an injury

from whole cloth, cf. ante, at 5, ERISA assigns the right to

sue on the plan’s unquestionably cognizable harm: here, fiduciary breaches causing wrongful gains and hundreds of 

millions of dollars in losses. So even under the Court’s 

framing, it does not matter whether petitioners “sustained

any monetary injury,” ante, at 2, because their pension plan 

did. 

To support standing, a statute may (but need not)

legally designate a party to sue on another’s behalf. Because ERISA does so here, petitioners should be permitted

to sue for their pension plan’s sake. 

—————— 9Neither Sprint, 554 U. S. 269, nor Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765 (2000), is to the 

contrary. Cf. ante, at 5. Both decisions undermine today’s result. See 

Sprint, 554 U. S., at 280, 287 (noting in the Article III context that “ ‘naked legal title’ ” has long permitted suit and that “federal courts routinely

entertain suits which will result in relief for parties that are not themselves directly bringing suit,” such as when “[t]rustees bring suits to benefit their trusts”); Vermont Agency, 529 U. S., at 774 (showing that even

a partial statutory assignment grants constitutional standing to sue on 

another’s behalf ). 
Cite as: 590 U. S. ____ (2020) 21 

SOTOMAYOR, J., dissenting 

III 

The Court also notes that “[e]ven if a defined-benefit plan

is mismanaged into plan termination, the federal [Pension 

Benefit Guaranty Corporation] by law acts as a backstop 

and covers the vested pension benefits up to a certain 

amount and often in full.” Ante, at 8, n. 2. The Court then 

suggests that the only way beneficiaries of a mismanaged 

plan could sue is if their benefits were not “guaranteed in 

full by the PBGC.” Ibid. 

Those statements underscore the problem in today’s decision. Whereas ERISA and petitioners’ Plan Document explicitly mandate that all plan assets be handled prudently

and loyally for petitioners’ exclusive benefit, the Court suggests that beneficiaries should endure disloyalty, imprudence, and plan mismanagement so long as the Federal 

Government is there to pick up the bill when “the plan and 

the employer” “fail.” Ibid. 

But the purpose of ERISA and fiduciary duties is to prevent retirement-plan failure in the first place. 29 U. S. C. 

§1001. In barely more than a decade, the country (indeed

the world) has experienced two unexpected financial crises

that have rocked the existence and stability of many employers once thought incapable of failing. ERISA deliberately provides protection regardless whether an employer 

is on sound financial footing one day because it may not be

so stable the next. See ibid.10 

The Court’s references to Government insurance also 

overlook sobering truths about the PBGC. The Government 

Accountability Office recently relisted the PBGC as one of 

the “High Risk” Government programs most likely to become insolvent. See GAO, Report to Congressional Committees, High-Risk Series: Substantial Efforts Needed To 

—————— 10This also explains why a material risk of loss is not a prerequisite for

standing, least of all for retirees relying on their retirement plan for income. Cf. ante, at 7–8. 
 

 

 

 

22 THOLE v. U. S. BANK N. A. 

SOTOMAYOR, J., dissenting 

Achieve Greater Progress on High-Risk Areas (GAO–19–

157SP, 2019) (GAO High-Risk Report). Noting the insolvency of defined-benefit plans that the PBGC insures and 

the “significant financial risk and governance challenges

that the PBGC faces,” the GAO High-Risk Report warns 

that “the retirement benefits of millions of American workers and retirees could be at risk of dramatic reductions” 

within four years. Id., at 56–57. At last count, the PBGC’s 

“net accumulated financial deficit” was “over $51 billion” 

and its “exposure to potential future losses for underfunded 

plans” was “nearly $185 billion.” Id., at 267. Notably, the

GAO had issued these warnings before the current financial 

crisis struck. Exchanging ERISA’s fiduciary duties for Government insurance would only add to the PBGC’s plight 

and require taxpayers to bail out pension plans. 

IV 

It is hard to overstate the harmful consequences of the 

Court’s conclusion. With ERISA, “the crucible of congressional concern was misuse and mismanagement of plan assets by plan administrators.” Russell, 473 U. S., at 141, 

n. 8. In imposing fiduciary duties and providing a private 

right of action, Congress “designed” the statute “to prevent

these abuses in the future.” Ibid. Yet today’s outcome encourages the very mischief ERISA meant to end. 

After today’s decision, about 35 million people with defined-benefit plans11 will be vulnerable to fiduciary misconduct. The Court’s reasoning allows fiduciaries to misuse 

pension funds so long as the employer has a strong enough

balance sheet during (or, as alleged here, because of ) the 

misbehavior. Indeed, the Court holds that the Constitution 

—————— 11See Dept. of Labor, Private Pension Plan Bulletin Historical 

Tables and Graphs, 1975–2017 (Sept. 2019) (Table E4),

https: / /www.dol.gov / sites / dolgov / files /EBSA / researchers / statistics / 

retirement-bulletins /private -pension-plan-bulletin-historical-tables -

and -graphs.pdf. 
 

Cite as: 590 U. S. ____ (2020) 23 

SOTOMAYOR, J., dissenting 

forbids retirees to remedy or prevent fiduciary breaches in

federal court until their retirement plan or employer is on

the brink of financial ruin. See ante, at 7–8. This is a remarkable result, and not only because this case is

bookended by two financial crises. There is no denying that 

the Great Recession contributed to the plan’s massive losses 

and statutory underfunding, or that the present pandemic

punctuates the perils of imprudent and disloyal financial 

management.

Today’s result also disrupts the purpose of ERISA and the

trust funds it requires. Trusts have trustees and fiduciary

duties to protect the assets and the beneficiaries from the 

vicissitudes of fortune. Fiduciary duties, especially loyalty, 

are potent prophylactic rules that restrain trustees 

“tempted to exploit [a] trust.” Bogert & Bogert §543. Congress thus recognized that one of the best ways to protect 

retirement plans was to codify the same fiduciary duties

and beneficiary-enforcement powers that have existed for 

centuries. E.g., 29 U. S. C. §§1001(b), 1109, 1132. Along 

those lines, courts once held fiduciaries to a higher standard: “Not honesty alone, but the punctilio of an honor the

most sensitive.” Meinhard v. Salmon, 249 N. Y. 458, 464, 

164 N. E. 545, 546 (1928) (Cardozo, C. J.). Not so today.

Nor can petitioners take comfort in the so-called “regulatory phalanx” guarding defined-benefit plans from mismanagement. Ante, at 7. Having divested ERISA of enforceable fiduciary duties and beneficiaries of their right to

sue, the Court lists “employers and their shareholders,”

other fiduciaries, and the “Department of Labor” as parties 

on whom retirees should rely. Ante, at 6–7. But there are 

serious holes in the Court’s proffered line of defense.

The Court’s proposed solutions offer nothing in a case like

this one. The employer, its shareholders, and the plan’s cofiduciaries here have no reason to bring suit because they 

either committed or profited from the misconduct. Recall 
 

 

 

24 THOLE v. U. S. BANK N. A. 

SOTOMAYOR, J., dissenting 

the allegations: Respondents misused a pension plan’s assets to invest in their own mutual funds, pay themselves 

excessive fees, and swell the employer’s income and stock 

prices. Nor is the Court’s suggestion workable in the mine

run of cases. The reason the Court gives for trusting employers and shareholders to look out for beneficiaries—“because the employers are entitled to the plan surplus and are

often on the hook for plan shortfalls,” ante, at 6—is what 

commentators call a conflict of interest.12 

Neither is the Federal Government’s enforcement power

a palliative. “ERISA makes clear that Congress did not intend for Government enforcement powers to lessen the responsibilities of plan fiduciaries.” Central States, 472 U. S., 

at 578. The Secretary of Labor, moreover, signed a brief (in 

support of petitioners) verifying that the Federal Government cannot “monitor every [ERISA] plan in the country.”

Brief for United States as Amicus Curiae 26. Even when 

the Government can sue (in a representational capacity, of 

course), it cannot seek all the relief that a participant or

beneficiary could. Compare 29 U. S. C. §1132(a)(2) with 

§1132(a)(3). At bottom, the Court rejects ERISA’s privateenforcement scheme and suggests a preference that taxpayers fund the monitoring (and perhaps the bailing out) of 

pension plans. See ante, at 6–8, and n. 2. 

Finally, in justifying today’s outcome, the Court discusses

attorney’s fees. Twice the Court underlines that attorneys

have a “$31 million” “stake” in this case. Ante, at 2, 3. But 

no one in this litigation has suggested attorney’s fees as a 

—————— 12 E.g., Fischel & Langbein, ERISA’s Fundamental Contradiction: The

Exclusive Benefit Rule, 55 U. Chi. L. Rev. 1105, 1121 (1988). This conflict exists because, contrary to the Court’s assertion, the employer and 

its shareholders are not “entitled to the plan surplus” until after the plan

terminates and after all vested benefits have been paid from the trust 

fund’s assets. Compare ante, at 6, with 29 U. S. C. §1103(c)(1) (ERISA 

plan assets “shall never inure to the benefit of any employer” while the

trust exists); see also App. 61; Record in No. 13–cv–2687 (D Minn.), Doc. 

107–1, p. 75. 
 

Cite as: 590 U. S. ____ (2020) 25 

SOTOMAYOR, J., dissenting 

basis for standing. As the Court appears to admit, its focus 

on fees is about optics, not law. See ante, at 3 (acknowledging that attorney’s fees do not advance the standing inquiry).

The Court’s aside about attorneys is not only misplaced,

it is also mistaken. Missing from the Court’s opinion is any 

recognition that Congress found private enforcement suits 

and fiduciary duties critical to policing retirement plans; 

that it was after this litigation was initiated that respondents restored $311 million to the plan in compliance with

statutorily required funding levels; and that counsel justified their fee request as a below-market percentage of the

$311 million employer infusion that this lawsuit allegedly 

precipitated. 

* * * 

The Constitution, the common law, and the Court’s cases 

confirm what common sense tells us: People may protect 

their pensions. “Courts,” the majority surmises, “sometimes make standing law more complicated than it needs to 

be.” Ante, at 8. Indeed. Only by overruling, ignoring, or

misstating centuries of law could the Court hold that the 

Constitution requires beneficiaries to watch idly as their

supposed fiduciaries misappropriate their pension funds. I 

respectfully dissent.