NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL F. DORMAN, individually as a 

participant in the SCHWAB PLAN 

RETIREMENT SAVINGS AND 

INVESTMENT PLAN and on behalf of a 

class of all those similarly situated, 

Plaintiff-Appellee, 

 v. 

THE CHARLES SCHWAB 

CORPORATION; et al., 

Defendants-Appellants.

No. 18-15281 

D.C. No. 4:17-cv-00285-CW 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Claudia Wilken, District Judge, Presiding

Argued and Submitted June 14, 2019

San Francisco, California

Before: GOULD and IKUTA, Circuit Judges, and PEARSON,** District Judge.

The district court erred by refusing to compel arbitration of the ERISA 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Benita Y. Pearson, United States District Judge for the 

Northern District of Ohio, sitting by designation.

FILED

AUG 20 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

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breach of fiduciary duty claims asserted in the First Amended Class Action 

Complaint even though those claims fall squarely within the ambit of at least the 

Schwab Retirement Savings and Investment Plan (the “Plan”).

1

1. The district court incorrectly found that Michael Dorman was not bound 

by the Plan document’s arbitration provision (the “Provision”). Contrary to the 

district court’s ruling, the record reflects that Dorman participated in the Plan for 

nearly a year while the Provision was in effect. A plan participant agrees to be 

bound by a provision in the plan document when he participates in the plan while 

the provision is in effect. See, e.g., Chappel v. Lab. Corp. of Am., 232 F.3d 719, 

723–24 (9th Cir. 2000).

The district court reasoned Dorman was not bound by the Provision and,

therefore, he did not agree to arbitrate his ERISA § 502(a) claims. We recently 

held, however, that such claims belong to a plan—not an individual. Munro v. 

Univ. of S. Cal., 896 F.3d 1088, 1092 (9th Cir. 2018). The relevant question is 

whether the Plan agreed to arbitrate the § 502(a)(2) claims. Here, the Plan 

expressly agreed in the Plan document that all ERISA claims should be arbitrated.

The Provision selects an arbitral forum for resolving fiduciary breach claims 

and requires the arbitration to be conducted on an individual rather than collective 

1

In a published opinion filed concurrently with this memorandum, we 

overrule Amaro v. Continental Can Co., 724 F.2d 747 (9th Cir. 1984), and reverse

and remand.

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basis. These claims “arise out of” and “relate to” the Plan because the claims are 

asserted under ERISA and allege that Plan fiduciaries breached their duties to the 

Plan. Therefore, the claims fall within the scope of the Provision.

The district court’s reliance on Johnson v. Couturier, 572 F.3d 1067 (9th 

Cir. 2009), is misplaced because, in this case, the amendment was not an effort to 

insulate fiduciaries from ERISA liability. Instead of obstructing liability, a forum 

was selected for litigating fiduciary breach claims that offered “quicker, more 

informal, and often cheaper resolutions for everyone involved.” Epic Sys. Corp. v. 

Lewis, 138 S. Ct. 1612, 1621 (2018).

The Provision is not invalid under ERISA § 410(a), 29 U.S.C. § 1110(a). 

An agreement to conduct arbitration on an individual basis, as in this case, does not 

“relieve a fiduciary from responsibility or liability.”

2. Once it is established that a dispute falls within the scope of an arbitration 

agreement, a court must order arbitration unless the agreement is unenforceable 

“upon such grounds as exist at law or in equity for the revocation of any contract.” 

9 U.S.C. § 2. The Federal Arbitration Act’s (“FAA”) savings clause recognizes 

only “generally applicable contract defenses, such as fraud, duress, or 

unconscionability.” Epic, 138 S. Ct. at 1622. The FAA’s savings clause is 

inapplicable because Dorman does not assert any generally applicable contract 

defenses.

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The district court held that the Provision was unenforceable on two 

alternative grounds. One ground, however, was later expressly rejected by the 

Supreme Court in Epic, and the other turned on the court’s finding that arbitration 

places plan participants at a “disadvantage.” To the extent the district court 

believed that an arbitrator would be less equipped than a court to resolve ERISA 

claims or less willing to find against Plan fiduciaries, the court was expressing 

precisely the type of “judicial hostility” towards arbitration that the FAA was 

designed to eliminate. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 

24 (1991).

The district court’s holding that the Provision is unenforceable because it 

violates the National Labor Relations Act (“NLRA”) is foreclosed by Epic, which 

held that an arbitration agreement in which an employee agrees to arbitrate claims 

against an employer on an individual basis, is enforceable and does not violate the 

NLRA. 138 S. Ct. at 1624–25.

Claims alleging a violation of a federal statute such as ERISA are generally 

arbitrable absent a “contrary congressional command.” Am. Express Co. v. Italian 

Colors Rest., 570 U.S. 228, 233 (2013). As every circuit to consider the question 

has held, ERISA contains no congressional command against arbitration, therefore 

an agreement to arbitrate ERISA claims is generally enforceable. See, e.g., 

Williams v. Imhoff, 203 F.3d 758, 767 (10th Cir. 2000); Kramer v. Smith Barney, 

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80 F.3d 1080, 1084 (5th Cir. 1996).

In its second ground, the district court incorrectly held that the Provision is

unenforceable under Bowles v. Reade, 198 F.3d 752 (9th Cir. 1999), because a plan 

participant cannot agree to arbitrate a § 502(a)(2) claim without the plan’s consent. 

Here, the Plan did consent in the Plan document to arbitrate all ERISA claims. 

Dorman also did not waive any rights that belong to the Plan. When an individual

participant agrees to arbitrate, he does not give up any substantive rights that 

belong to other Plan participants.

3. No party can be compelled under the FAA to arbitrate on a class-wide or 

collective basis unless it agrees to do so by contract. Stolt-Nielsen S.A. v. 

AnimalFeeds Int’l Corp., 559 U.S. 662, 684 (2010). The Supreme Court’s recent 

decision in Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407 (2019), confirms that the 

parties here should be ordered into individual arbitration, as they did not agree to 

class-wide or collective arbitration. Because “arbitration is a matter of contract,” 

the Provision’s waiver of class-wide and collective arbitration must be enforced 

according to its terms, and the arbitration must be conducted on an individualized 

basis. See Am. Express Co., 570 U.S. at 233.

Although § 502(a)(2) claims seek relief on behalf of a plan, the Supreme 

Court has recognized that such claims are inherently individualized when brought 

in the context of a defined contribution plan like that at issue. LaRue v. DeWolff, 

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Boberg & Assocs., Inc., 552 U.S. 248 (2008). LaRue stands for the proposition 

that a defined contribution plan participant can bring a § 502(a)(2) claim for the 

plan losses in her own individual account. Id. at 256; see also Munro, 896 F.3d at 

1093. The Plan and Dorman both agreed to arbitration on an individualized basis. 

This is consistent with LaRue.

REVERSED and REMANDED with instructions for the district court to 

order arbitration of individual claims limited to seeking relief for the impaired 

value of the plan assets in the individual’s own account resulting from the alleged 

fiduciary breaches.

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