1 (Slip Opinion) OCTOBER TERM, 2019

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 enti

tled to those payments for the rest of their lives. Nevertheless, they filed a putative class-action suit against U. S. Bank and others (collec

tively, 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 p oorly investing the plan’s assets. They request the repayment of a pproximately $750 million to the plan in losses suffered due to mismanagem ent; 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 intere st in the plan and that injuries to the plan are ther efore injuries to the participants. But participants in a defined-benefit plan are not similarly situated tothe 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 on2 THOLE v. U. S. BANK N. A.

Syllabus
injuries to the plan wher e 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—inclu ding defined-benefit plan partic

ipants—a cause of action to sue does not satisfy the injury-in-fact re

quirement 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 regula

tion of plan fiduciaries is possible only if they may sue to target per

ceived fiduciary misconduct. But this Court has long rejected that ar

gument 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 ri sk that the plan and the employer would fail and be unable to pay the pa rticipants’ future benefits. The plaintiffs do not assert that theory of standing here, nor did their com

plaint allege that level of mismanagement. Pp. 2–8. 873 F. 3d 617, affirmed.

K

AVANAUGH , J., delivered the opinion of the Court, in which R OBERTS , C. J., and T HOMAS , A LITO , and G ORSUCH , JJ., joined. T HOMAS , J., filed a concurring opinion, in which G ORSUCH , J., joined. S OTOMAYOR , J., filed a dissenting opinion, in which G INSBURG , B REYER , and K AGAN , JJ., joined._________________

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

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, Wash

ington, D. C. 20543, of any typographical or other form al 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]

J USTICE K AVANAUGH delivered the opinion of the Court. To establish standing under Article III of the Constitu

tion, 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 defend

ant, 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 re tirement 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 in

vestment decisions. By con trast, in a defined-contribution plan, such as a 401(k) plan, the retirees’ benefits are typi

cally tied to the value of their accounts, and the benefits can turn on the plan fiduciaries’ particular investment deci

sions. 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 de

fined-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 mone

tary 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 de fendants violated ERISA’s du

ties 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 plainti ffs 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 dis

missed 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 Ar

ticle III standing. Thole and Smith have received all of their monthly benefit payments so far, and the outcome of3 Cite as: 590 U. S. ____ (2020)

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 al

ready 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 re

ceive, 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 underly

ing 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 stak e 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 re

cover 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 demons trate their standing to chal

lenge alleged plan mismanagement, the plaintiffs have ad

vanced four alternative arguments. First , analogizing to trust law, Thole and Smith contend that an ERISA defined-benefi t 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-ben

efit plan participants, even if the participants themselves4 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, th e value of the trust property and the ultimate amount of money received by the benefi

ciaries will typically depend on how well the trust is man

aged, so every penny of gain or loss is at the beneficiaries’ risk. By contrast, a defined-be nefit plan is more in the na

ture 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 em

ployer, not plan participants, is on the hook for plan short

falls. 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 & As

sociates, 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 mismanage

ment of a defined-benefit plan. Second , Thole and Smith assert standing as representa

tives of the plan itself. But in order to claim “the interests of others, the litigants themse lves still must have suffered an injury in fact, thus giving” them “a sufficiently concrete interest in the outcome of the issue in dispute.” Hol

lingsworth v. Perry , 570 U. S. 693, 708 (2013) (internal quo

tation marks omitted); cf. Gollust v. Mendell , 501 U. S. 115, 125–126 (1991) (suggesting that shareholder must “main

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

Opinion of the Court tain some continuing financial st ake in the litigation” in or

der 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 in

volving guardians, receivers, and executors falls short for basically the same reason. The plaintiffs have not been le

gally or contractually appointed to represent the plan. Third , in arguing for standing, Thole and Smith stress that ERISA affords the Secretary of Labor, fiduciaries, ben

eficiaries, and participants—including participants in a de

fined-benefit plan—a general cause of action to sue for res

toration 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 require

ment 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 stat

utory violation.” Spokeo , 578 U. S., at ___ (slip op., at 9). Here, the plaintiffs have faile d to plausibly and clearly al

lege 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 fiduci

aries. 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 Arti

cle 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 respond

ents 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 enti

tled to the plan surplus and are often on the hook for plan shortfalls. Therefore, about the last thing a rational em

ployer wants or needs is a mismanaged retirement plan. Cf. ERISA §4062(a), 29 U. S. C. §1362(a). Moreover, ERISA ex

pressly authorizes the Departm ent 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 aggressi vely pursue fiduciary miscon

duct, particularly to avoid the financial burden of failed de

fined-benefit plans being backl oaded onto the Federal Gov

ernment. When a defined-benefit plan fails and is unable

——————

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

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 Depart

ment of Labor is well positioned to understand the relation

ship 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 Peti

tioners 2. In addition, depending on the nature of the fidu

ciary misconduct, state and federal criminal laws may ap

ply. 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 phal

anx. 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. Am

nesty Int’l USA , 568 U. S. 398, 414, n. 5 (2013); Lee v. Veri

zon 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 mismanage

ment 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 plain

tiffs’ complaint alleged that the plan was underfunded for a8 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 a ffect an individual’s entitle

ment 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, com

monsense reason: They have received all of their vested pension benefits so far, and th ey are legally entitled to re

ceive 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 re

quired 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 Guar

anty 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

T HOMAS , 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]

J USTICE T HOMAS , with whom J USTICE G ORSUCH joins, concurring. I agree with the Court’s opinion, which correctly applies our precedents and concludes that petitioners lack stand

ing. 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 un

necessarily 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 “Con

troversies.” §§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) (T HOMAS , 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] instit uted according to the regular course of judicial procedure”). “Common-law courts imposed different limitations on a2 THOLE v. U. S. BANK N. A.

T HOMAS , J., concurring plaintiff ’s right to bring suit depending on the type of right the plaintiff sought to vindicate.” Spokeo , 578 U. S., at ___ (T HOMAS , J., concurring) (slip op., at 2). Rights were typi

cally divided into private rights and public rights. Private rights are those “ ‘belonging to individuals, considered as in

dividuals.’ ” Ibid. (quoting 3 W. Blackstone, Commentaries *2); see also Woolhandler & Nelson, Does History Defeat Standing Doctrine? 102 Mich. L. Rev. 689, 693 (2004). Pub

lic rights are “owed ‘to the whole community, considered as a community, in its social aggregate capacity.’ ” Spokeo

, su

pra , at ___ (T HOMAS , 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 ___ (T HOMAS , J., concurring) (slip op., at 2). In this case, however, none of the rights identified by petitioners belong to them. Th e 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 par

ticipants in a defined benefit pl an, 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 can

not 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 violat ed do not belong to petition

ers under ERISA or any contract. Our ERISA precedents have especially complicated the3 Cite as: 590 U. S. ____ (2020)

T HOMAS , J., concurring question of standing in this case due to their misinterpre

tations 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 construc

tion of a statute,’ the ‘starting point . . . is the language it

self.’ ” Id. , at 528 (T HOMAS , 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 com

mon law.” Varity
, supra, at 528

. The Court correctly ap

plies Varity here, but in an appropriate case, we should re

consider our reliance on loose analogies in both our standing and ERISA jurisprudence._________________

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

S OTOMAYOR , 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]

J USTICE S OTOMAYOR , with whom J USTICE G INSBURG , J USTICE B REYER , and J USTICE K AGAN 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 pensio ners may not bring a federal lawsuit to stop or cure retirement-plan mismanagement until their pensions are on the verge of default. This con

clusion conflicts with common sense and longstanding prec

edent.

I A
ERISA 1 protects “the interests of participants in em

ployee 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 in

ure to the benefit of any employer.” §1103(c)(1). Because ERISA requires that retirement-plan assets be

——————

1 Employee 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.

S OTOMAYOR , J., dissenting held in trust, it imposes on the trustees and other plan man

agers “ ‘strict standards’ ” of conduct “ ‘derived from the com

mon 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 partici

pants and beneficiaries—typically, the employees who sac

rifice wages today to secure their retirements tomorrow. §§1104, 1106. Not surprisingly, ERISA fiduciaries owe du

ties not only to the plan they manage, but also “to the ben

eficiaries” and participants for whom they manage it. Har

ris 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 person

ally liable. §§1109, 1132. The United States Secretary of Labor, a plan participant or be neficiary, or another fiduci

ary 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, disgor gement 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 as

sets in respondents’ own mutual funds and by paying them

selves excessive management fees. (Petitioners further contend that this self-dealing pe rsists today.) According to the complaint, the fiduciaries also made imprudent invest

ments that allowed them to manipulate accounting rules, boost their reported incomes, inflate their stock prices, and3 Cite as: 590 U. S. ____ (2020)

S OTOMAYOR , 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, dis

gorgement of respondents’ ill-gotten profits and fees, re

moval 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 respond

ents had unlawfully gained. See 873 F. 3d 617, 630–631 (CA8 2018).

II In the Court’s words, the que stion here is whether peti

tioners have alleged a “concrete” injury to support their con

stitutional 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 benefi

ciaries 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 law

suit 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 stand

ing to protect the assets in which they have an “equitable” interest. Ante , at 3–4. The critical question, then, is4 THOLE v. U. S. BANK N. A.

S OTOMAYOR , J., dissenting whether petitioners have an equi table interest in their re

tirement 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 trus t” 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 petition

ers’ defined-benefit plan states that, at “ ‘all times,’ ” all plan assets “ ‘shall’ ” be in a “ ‘trust fund’” managed for the par

ticipants’ 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.” Rec

ord in No. 13–cv–2687 (D Minn.), Doc. 107–1, p. 75. This arrangement confers on the “participants [and] beneficiar

ies” of a defined-benefit plan an equitable stake, or a “com

mon interest,” in “the financial integrity of the plan.” Mas

sachusetts Mut. Life Ins. Co. v. Russell , 473 U. S. 134, 142, n. 9 (1985). Petitioners’ equitable interest finds ample support in tra

ditional 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

——————

2 Generally, “a trust is created when on e person (a ‘settlor’ or ‘grantor’) transfers property to a third party (a ‘trustee’) to administer for the ben

efit of another (a ‘beneficiary’).” North Carolina Dept. of Revenue v. Kim

berley 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 pe titioners’ pension fund meets these elements.5 Cite as: 590 U. S. ____ (2020)

S OTOMAYOR , J., dissenting Trusts §74, Comment a , p. 192 (1957); see Blair v. Commis

sioner , 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 th e trust estate” and “any profit made by [the trustee] through the breach of trust”). 3 So too here. Because respondents’ alleged mismanage

ment 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 bene

ficiaries 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 peti

tioners 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 pe

titioners have an interest in payments from their trust

——————

3 Even contingent and discretionary beneficiaries (those who might not ever receive any assets from the trus t) 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 up

date) (Bogert & Bogert) (listing cases).6 THOLE v. U. S. BANK N. A.

S OTOMAYOR , 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 Doc

ument expressly incorporated. If the participants and beneficiaries in a defined-benefit plan did not have equita

ble title to the plan’s assets, th en 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-ben

efit 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 dis

tinguish an ERISA trust fund from a private trust fund, the Court observes that petitioners’ payments have not “fluctu

ate[d] with the value of the plan or because of the plan fi

duciaries’ 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 out

come of this suit, ante , at 3. But that is circular: Petitioners will receive benefits indefinitely because they receive bene

fits 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 promising7 Cite as: 590 U. S. ____ (2020)

S OTOMAYOR , J., dissenting fixed payments is not a trust because the promise “will not change, regardless of how well or poorly the [trust] is man

aged.” Ante, at 4. That does not follow (a promise of pay

ment differs from an actual payment) and it does not dis

prove 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 re

gardless whether a trust creates a “present interest” in “im

mediate enjoyment” of the trust property or “a future inter

est” 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 par

ticipants, receives any surplus left over after all of the ben

efits 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 pay

ments from a trust still has an equitable interest. See Bogert & Bogert §706. Even life-beneficiaries may “re

quir[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 per

formed.” Ibid. If anything, petitioners’ equitable interests are stronger than those of their common-law counterparts; the Plan Document provides peti tioners 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 to8 THOLE v. U. S. BANK N. A.

S OTOMAYOR , J., dissenting remedy trust losses) would depr ive beneficiaries of their eq

uitable interests in their trusts. See ibid. But the Court cites nothing supporting that pr oposition. To the contrary, it is well settled that benefici aries retain equitable interests in trust assets even when those assets are insured or re

plenished. See Bogert & Boge rt §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 au

thorities). None of those aut horities suggests that benefi

ciaries 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 insur

ance 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 con

tract, ante, at 4, but this too is insignificant here. The Court declares that petitioners’ pe nsion plan “is more in the na

ture of a contract,” ibid.  ̧ but then overlooks that the socalled contract creates a trust. The Plan Document ex

pressly requires that petitioners’ pension funds be held in a “trust” exclusively for petitioner s’ benefit. App. 60–61. The Court’s statement that “the employer, not plan partici

pants, 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 in

terest, 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), and9 Cite as: 590 U. S. ____ (2020)

S OTOMAYOR , 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 bene

ficiaries have a “common interest” in the “financial integ

rity” of their defined-benefit plan. 473 U. S., at 142, n. 9. Neither Hughes nor LaRue suggests otherwise. Hughes explained that a defined-bene fit-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 pay

ment 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 “a llege[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 inde

pendent duty to assure itself of Article III standing). LaRue is even less helpful to today’s Court. That case involved a defined-contributio n 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 in

juries” may occur from ERISA plan mismanagement, the statutory provision at issue re quired 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’s10 THOLE v. U. S. BANK N. A.

S OTOMAYOR , J., dissenting other statutory remedies. 4 In fact, LaRue confirmed that ERISA beneficiaries like petiti oners may sue fiduciaries for

“ ‘any profit which would have ac crued 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 as

sets,” 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 loy

alty and prudence. For over a century, trust law has pro

vided 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 benefi

ciary suffers personal financial loss. A beneficiary may sue a trustee for restitution or disgorgement, remedies that rec

ognize 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 benefi

ciary]’s legally protected rights,’ ” like a breach of fiduciary

——————

4 The Court expressly declined to addr ess other relief like that provided under §1132(a)(3), see LaRue , 552 U. S., at 252, a provision that petition

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

S OTOMAYOR , J., dissenting duty. Restatement (Third) of Restitution and Unjust En

richment §1, and Comment a , p. 3 (2010). Similarly, dis

gorgement 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 dif

ference that the [trust] estate was not a loser in the trans

action”); Bogert & Bogert §543 (similar). Put another way, “traditional remedies” like “unj ust enrichment . . . are not contingent on a plaintiff ’s allegation of damages beyond the violation of his private legal right.” Spokeo , 578 U. S., at ___–___ (T HOMAS , 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 Restatemen t (Second) of Trusts §205. In fact, because fiduciary duties are so paramount, the rem

edy 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 fiduciar

ies expressly liable to restore to the plan wrongful profits and any losses their breach caused, and by providing for in

junctive relief to stop the misconduct and remove the wrongdoers. See 29 U. S. C. §§1109, 1132(a)(2), (3). In do

ing so, Congress rejected the Court’s statement that a “trust-law analogy . . . does not” apply to “plaintiffs who al

lege 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.

S OTOMAYOR , J., dissenting to “[r]espon[d] to deficiencies in prior law regulating [retire

ment] plan fiduciaries” and to provide even greater protec

tions 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 ERI SA’s text, this Court itself has noted, in the defined-benefit-plan context, “that when a trustee” breaches “his fiduciar y duty to the beneficiaries,” the “beneficiaries may then maintain an action for restitu

tion . . . or disgorgement.” Harris Trust
, 530 U. S., at 250. Harris Trust confirms that ERISA incorporated “[t]he com

mon law of trusts” to allow de fined-benefit-plan beneficiar

ies to seek relief from fiduciary breaches. Ibid. ; see also id.

, at 241–242 (noting that certain ERISA provisions “supple

men[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 statu

tory evidence showing petitioners’ concrete interest in pru

dent and loyal fiduciaries. Instead, the Court insists again that “participants in a defined-benefit plan are not simi larly situated to the bene

ficiaries of a private trust,” ante, at 4, and that the “com

plaint did not plausibly and clearly claim that the alleged mismanagement of the plan substantially increased the

——————

5 Curiously, 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 interp retation 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 fidu

ciaries. See id. , at 506 (confirming that the “ERISA fiduciary duty in

cludes [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– 242.13 Cite as: 590 U. S. ____ (2020)

S OTOMAYOR , J., dissenting risk that the plan and the employer would fail and be una

ble to pay the plaintiffs’ future pension benefits,” ante , at 7. The first observation is in correct for the reasons stated above. But even were the Co urt correct that petitioners’ rights do not sound in trust la w, petitioners would still have standing. The Court reasons that petitioners have an en

forceable right to “monthly paym ents for the rest of their lives” because their plan confers a “contractua[l] enti

tle[ment].” Ante , at 2. Under that view, the plan also con

fers contractual rights to loyal and prudent plan manage

ment. 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 ___–___ (T HOMAS , J., concurring) (slip op., at 2–3) (“[C]ourts historically pre

sumed that the plaintiff suffered a de facto injury merely from having his personal, legal rights invaded” even with

out 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-fiduciary

duty claim exists regardless of the beneficiary’s personal gain, loss, or recovery. In rejecting petitioners’ standing and maintaining that “this suit would not change [petition

ers’] monthly pension benefits,” ante , at 8, the Court fails to14 THOLE v. U. S. BANK N. A.

S OTOMAYOR , J., dissenting distinguish the different rights on which pension-plan ben

eficiaries may sue. They have a right not just to their pen

sion benefits, but also to loyal and prudent fiduciaries. See Warth v. Seldin , 422 U. S. 490, 500 (1975) (the standing in

quiry “turns on the nature and source of the claim as

serted”). Petitioners seek relief tailored to the second cate

gory, including restitution, disgorgement, and injunctive remedies. Cf. Great-West Life & Annuity Ins. Co. v. Knud

son , 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 “in

junctive relief, including replacement of the plan’s fiduciar

ies,” ante, at 2, it offers no analysis on that issue. Put dif

ferently, 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 ___–___ (T HOMAS , J., concur

ring) (slip op., at 2–3); Tennessee Elec. Power Co. v. TVA
, 306 U. S. 118, 137–138 (1939). 6 In Heckler v. Mathews , 465

——————

6 This Court has found standing in myriad cases involving noneco

nomic injuries. Examples include th e 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 information15 Cite as: 590 U. S. ____ (2020)

S OTOMAYOR , J., dissenting

U. S. 728 (1984), for instance, this Court recognized a plain

tiff ’s standing to assert a “noneconomic” injury for discrim

inatory distribution of his Social Security benefits, even though he did not have “a substantive right to any particu

lar amount of benefits.” Id. , at 737, 739. Petitioners’ stand

ing here is even sturdier: They assert a noneconomic injury for unlawful management of their retirement plan and, un

like the plaintiff in Heckler , petitioners do have a substan

tive right to a particular amount of benefits. Cf. ante , at 2 (acknowledging that petitioner s’ benefits are “vested” and that payments are “legally and contractually” required). None of this is disputed. In fact, the Court seems to con

cede all this reasoning in a footnote. See ante, at 6, n. 1. The Court appears to acknowledge that an ERISA benefi

ciary’s noneconomic right to in formation from the fiduciar

ies would support standing. See ibid. (citing 29 U. S. C. §1132(a)(1)(A)). Yet the Court offe rs no reason to think that a beneficiary’s noneconomic ri ght 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 T HOMAS , 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 pur

suant 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 recon

cile these cases with its novel financ ial-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.

S OTOMAYOR , J., dissenting that view. Compare Varity Corp. , 516 U. S., at 507 (“This argument fails”), with id. , at 516 (T HOMAS , 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 T HOMAS , J.). Of course a plan fiduciary per

forms 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 stat

ute 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 it

self would. There is no disputing at this stage that respond

ents’ “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 T HOMAS , 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 on17 Cite as: 590 U. S. ____ (2020)

S OTOMAYOR , J., dissenting the plan’s behalf. Typically that is the fiduciary’s job. See §1102(a)(1) (fiduciaries have “authority to control and man

age the operation and administration of the plan”). But im

agine a case like this one, where the fiduciaries refuse to sue because they would be the defendants. Does the Con

stitution 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 prem

ise that in certain circumstances, particular relationships (recognized either by common-l aw 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. Man

ning, D. Meltzer, & D. Shapiro, Hart & Wechsler’s The Fed

eral 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 repre

sentational 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 co mmon 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” aris

ing from the action “inures to the benefit of the plan as a18 THOLE v. U. S. BANK N. A.

S OTOMAYOR , 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 fidu

ciary duties “must” be brought “in a representative capac

ity.” Varity Corp. , 516 U. S., at 516 (T HOMAS , J., dissent

ing) (internal quotation marks omitted). Permitting beneficiaries to enforce their plan’s rights finds plenty of support in our co nstitutional case law. Take associational standing: An association may file suit “to re

dress its members’ injuries, even without a showing of in

jury to the association itself.” Food and Commercial Work

ers , 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 th e 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 as

sets held for their exclusive benefit. Next-friend standing is another apt analog. Long “ac

cepted [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 peti

tioners’ interests. 7

——————

7 Other examples include guardians ad litem and, of course, trustees. E.g.
, Sprint Communications Co. v. APCC Services

, Inc. , 554 U. S. 269,19 Cite as: 590 U. S. ____ (2020)

S OTOMAYOR , J., dissenting Congress was on well-established ground when it allowed pension participants and benefici aries to sue on their retire

ment plan’s behalf.

2 The Court’s conflicting conclu sion 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 “pri

vate parties” with no stake in the litigation “distinguishable from the general interest of ev ery citizen” were not proper representatives of the State. 570 U. S., at 707, 710. If an

ything, 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 tra

ditional beneficiary-versus-tru stee 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 stan ding context that “federal courts routinely entertain suits which will re sult 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 (R OBERTS , C. J., dissenting) (“Trustees, guardi ans ad litem, execut ors, and the like make up a settled, continuous practice ‘of the sort traditionally amenable to, and resolved by, the judicial process’ ”).

8 The 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 ex

pansive 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 representa

tional standing to assert an equal pr otection claim on a business patron’s behalf ). To the extent the Court suggests that a financial loss is neces

sary (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.

S OTOMAYOR , J., dissenting represent the plan. Ante , at 5. Although a formal assign

ment or appointment suffices for standing, it is not neces

sary. See, e.g. , Food and Commercial Workers , 517 U. S., at 552; Whitmore , 495 U. S., at 162. Regardless, Congress ex

pressly and thereby legally assigned pension-plan partici

pants and beneficiaries the right to represent their plan, in

cluding 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, Com

ment d(1) , at 7 (trust terms may confer standing to sue the trustee). ERISA was “primarily concerned with the possi

ble 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’ ” con

ferring 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, fi

duciary 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. Be

cause ERISA does so here, petitioners should be permitted to sue for their pension plan’s sake.

——————

9 Neither Sprint , 554 U. S. 269, nor Vermont Agency of Natural Re

sources 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 “ ‘na

ked legal title’ ” has long permitted suit and that “federal courts routinely entertain suits which will result in relief for parties that are not them

selves directly bringing suit,” such as when “[t]rustees bring suits to ben

efit 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 ).21 Cite as: 590 U. S. ____ (2020)

S OTOMAYOR , 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 pensio n 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 bene fits were not “guaranteed in full by the PBGC.” Ibid. Those statements underscore the problem in today’s de

cision. Whereas ERISA and petitioners’ Plan Document ex

plicitly mandate that all pl an assets be handled prudently and loyally for petitioners’ ex clusive benefit, the Court sug

gests that beneficiaries should endure disloyalty, impru

dence, 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 pre

vent 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 em

ployers once thought incapable of failing. ERISA deliber

ately provides protection re gardless 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 be

come insolvent. See GAO, Report to Congressional Com

mittees, High-Risk Series: Substantial Efforts Needed To

——————

10 This 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 in

come. Cf. ante, at 7–8.22 THOLE v. U. S. BANK N. A.

S OTOMAYOR , J., dissenting Achieve Greater Progress on High-Risk Areas (GAO–19– 157SP, 2019) (GAO High-Risk Report). Noting the insol

vency 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 work

ers 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 Gov

ernment 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 congres

sional concern was misuse and mismanagement of plan as

sets 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 en

courages the very mischief ERISA meant to end. After today’s decision, about 35 million people with de

fined-benefit plans 11 will be vulnerable to fiduciary miscon

duct. 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

——————

11 See Dept. of Labor, Private Pe nsion 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.23 Cite as: 590 U. S. ____ (2020)

S OTOMAYOR , 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 re

markable 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. Con

gress thus recognized that one of the best ways to protect retirement plans was to codify the same fiduciary duties and beneficiary-enforcement po wers 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 stand

ard: “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 co mfort in the so-called “regu

latory phalanx” guarding defined-benefit plans from mis

management. Ante , at 7. Having divested ERISA of en

forceable fiduciary duties and be neficiaries of their right to sue, the Court lists “employers and their shareholders,” other fiduciaries, and the “Dep artment 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 likethis 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. Recall24 THOLE v. U. S. BANK N. A.

S OTOMAYOR , J., dissenting the allegations: Respondents misused a pension plan’s as

sets 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 em

ployers and shareholders to look out for beneficiaries—“be

cause 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 Gove rnment’s enforcement power a palliative. “ERISA makes clear that Congress did not in

tend for Government enforceme nt powers to lessen the re

sponsibilities 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 Govern

ment cannot “monitor every [ERISA] plan in the country.” Brief for United States as Amicus Curiae 26. Even when the Government can sue (in a re presentational 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 taxpay

ers 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 con

flict 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 benefi ts 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 th e benefit of any employer” while the trust exists); see also App. 61; Record in No. 13–cv–2687 (D Minn.), Doc. 107–1, p. 75.25 Cite as: 590 U. S. ____ (2020)

S OTOMAYOR , J., dissenting basis for standing. As the Court appears to admit, its focus on fees is about optics, not law. See ante , at 3 (acknowledg

ing that attorney’s fees do not advance the standing in

quiry). 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 respond

ents restored $311 million to the plan in compliance with statutorily required funding levels; and that counsel justi

fied 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, “some

times 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 beneficiar ies to watch idly as their supposed fiduciaries misappropria te their pension funds. I respectfully dissent.