FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVE HARRIS; DENNIS F. RAMOS, 

On Behalf of Themselves and All

Others Similarly Situated,

Plaintiffs-Appellants,

v.

AMGEN, INC.; FRANK J. BIONDI, JR.; No. 08-55389

JERRY D. CHOATE; FRANK C. D.C. No.

HERRINGER; GILBERT S. OMENN;  2:07-cv-05442-PSGDAVID BALTIMORE; JUDITH C. PLA

PELHAM; KEVIN W. SHARER;

OPINION FREDERICK W. GLUCK; LEONARD D.

SCHAEFFER; ROBERT A. BRADWAY;

RETIREMENT BENEFITS

COMMITTEE OF THE BOARD OF

DIRECTORS OF AMGEN,

Defendants-Appellees. 

Appeal from the United States District Court

for the Central District of California

Philip S. Gutierrez, District Judge, Presiding

Argued and Submitted

May 8, 2009—Pasadena, California

Filed July 14, 2009

Before: Betty B. Fletcher, Raymond C. Fisher, and

Ronald M. Gould, Circuit Judges.

Opinion by Judge Gould

8819
COUNSEL

Francis M. Gregorek, Betsy C. Manifold, Rachele R. Rickert,

and Mark C. Rifkin (argued), Wolf Haldenstein Adler Freeman & Herz LLP, San Diego, California, and Thomas J.

McKenna, Gainey & McKenna, New York, New York, for

the plaintiffs-appellants.

Steven O. Kramer, John Nadolenco, Mack Anderson, Robert

P. Davis (argued), and Michele L. Odorizzi, Mayer Brown

LLP, Los Angeles, California, for the defendants-appellees.

OPINION

GOULD, Circuit Judge:

Steve Harris and Dennis F. Ramos (collectively, “Plaintiffs”) sued Amgen, Inc. (“Amgen”) and several Amgen directors and officers, alleging that the defendants breached their

fiduciary duties under the Employee Retirement Income

Security Act (“ERISA”) in their operation of two ERISA

retirement plans. The district court dismissed Harris’s claims

on the ground that he lacked standing as an ERISA plan “participant” because he had withdrawn all of his assets from his

plan. It also dismissed Ramos’s claims, reasoning that

although Ramos had standing, he did not allege any claims

against defendants who were fiduciaries under the plan. The

8822 HARRIS v. AMGEN, INC.
district court then denied Plaintiffs leave to amend their complaint.

We reverse the dismissal of Plaintiffs’ complaint. We hold

that Harris has standing as an ERISA plan participant to seek

relief under ERISA § 502(a)(2), codified at 29 U.S.C.

§ 1132(a)(2), despite having withdrawn all of his assets from

his plan. We also conclude that the district court improperly

denied Plaintiffs leave to amend their complaint to add more

factual allegations where necessary and to identify proper

fiduciaries of the Plaintiffs’ ERISA plans.

I

Amgen is a publicly traded biotechnology company that

operates Amgen Manufacturing, Ltd. (“Amgen Manufacturing”) as a wholly owned subsidiary. Employees of Amgen are

entitled to participate in the Amgen Retirement and Savings

Plan (the “Amgen Plan”), and Amgen Manufacturing employees may participate in the Retirement and Savings Plan for

Amgen Manufacturing, Ltd. (the “Manufacturing Plan”).

Each Plan is a “defined contribution plan,” defined as “a pension plan which provides for an individual account for each

participant and for benefits based solely upon the amount contributed to the participant’s account.” 29 U.S.C. § 1002(34).1

Amgen is a “named fiduciary” only of the Amgen Plan,2

and Amgen Manufacturing is a named fiduciary only of the

Manufacturing Plan. The Amgen Plan allows the Amgen

Board of Directors (the “Board”) to delegate management and

administration of the Plan to a “Fiduciary Committee.” Dur1A defined contribution plan is distinct from a “defined benefit plan,”

which, with exceptions not relevant here, “means a pension plan other

than an individual account plan.” 29 U.S.C. § 1002(35). 

2A named fiduciary is “a fiduciary who is named in the plan instrument”

or by an authorized employer or employee organization. 29 U.S.C.

§ 1102(a)(2). 

HARRIS v. AMGEN, INC. 8823
ing the time relevant to this appeal, fiduciary responsibilities

for both Plans were delegated to the Fiduciary Committee. 

Steve Harris worked at Amgen until January 2007 and participated in the Amgen Plan. His Amgen Plan holdings sometimes included Amgen stock. Harris withdrew his assets from

his Amgen Plan account in July 2007. Dennis F. Ramos

worked at Amgen Manufacturing until March 2007, participating in the Manufacturing Plan. His Manufacturing Plan

holdings also sometimes included Amgen Stock. Ramos still

has assets in the Manufacturing Plan.

In August 2007 Harris and Ramos filed a class action complaint (the “Complaint”), alleging that during a 22-month

class period the defendants breached their fiduciary duties by

allowing the Plans to purchase and hold Amgen stock while

knowing that the stock price was artificially inflated because

of improper off-label drug marketing and sales. The Complaint asserts that the Amgen stock price declined significantly once the off-label activity became public, and Harris

and Ramos claim that the defendants are liable for the resulting losses suffered by the class members. The Complaint

sought relief under ERISA § 502(a)(2) (“Section 502(a)(2)”),

codified at 29 U.S.C. § 1132(a)(2), which authorizes a suit by

a plan participant “for appropriate relief” against a plan fiduciary for breach of fiduciary duty.

The Complaint names as defendants Amgen, Amgen’s

chief financial officer, and nine Amgen Board members (collectively, “Defendants”). Neither Amgen Manufacturing nor

the Fiduciary Committee is named as a defendant. However,

the Complaint does assert claims against a “Retirement Benefits Committee of the Board of Directors of Amgen,” which

it claims has fiduciary responsibilities over both Plans. 

Defendants filed a motion to dismiss for lack of subject

matter jurisdiction under Federal Rule of Civil Procedure

(“Rule”) 12(b)(1), and for failure to state a claim under Rule

8824 HARRIS v. AMGEN, INC.
12(b)(6). The district court granted the motion and dismissed

with prejudice all of Harris’s claims, concluding that Harris

did not have statutory standing as a “participant” in the

Amgen Plan because he had already cashed out of his Plan

account. The district court determined that Ramos had standing because he still had assets in the Manufacturing Plan, but

it dismissed with prejudice all of Ramos’s claims on the

ground that neither Amgen, the alleged retirement committee,

nor the named defendants were fiduciaries of the Manufacturing Plan. 

The district court also denied Plaintiffs’ request for leave to

amend their Complaint. The district court reasoned that Harris

could not cure his lack of standing through amendment and

that Ramos did not “have a viable claim against the named

defendants.” The district court expressly made “no determination as to whether Plaintiffs have a viable claim against

Amgen Manufacturing or the members of the Fiduciary Committee.” Harris and Ramos appeal the dismissal of their claims

and the denial of leave to amend.

II

A

We first consider whether the district court properly determined that Harris lacked standing under Section 502(a)(2)

because he had withdrawn his assets from the Amgen Plan.

We review questions of standing under ERISA de novo. Stewart v. Thorpe Holding Co. Profit Sharing Plan, 207 F.3d

1143, 1148 (9th Cir. 2000).3

3Although the district court dismissed Harris’s claims for lack of subject

matter jurisdiction, a dismissal for lack of statutory standing is properly

viewed as a dismissal for failure to state a claim. See Vaughn v. Bay Envtl.

Mgmt., Inc., 567 F.3d 1021, 1024 (9th Cir. 2009). However, “[b]ecause we

review dismissals under both Rule 12(b)(1) and Rule 12(b)(6) de novo, the

district court’s error [in characterization] does not affect the result in this

case.” Id. (citation omitted). 

HARRIS v. AMGEN, INC. 8825
[1] “To establish standing to sue under ERISA, [plaintiffs]

must show that they are plan ‘participants.’ ” Poore v. Simpson Paper Co., 566 F.3d 922, 925 (9th Cir. 2009). Plaintiffs

seek relief under Section 502(a)(2), which grants standing to

a plan participant to bring an action against a defendant who

breaches a fiduciary duty with respect to that plan. See 29

U.S.C. § 1132(a)(2). An ERISA plan participant is “any

employee or former employee of an employer . . . who is or

may become eligible to receive a benefit of any type from an

employee benefit plan which covers employees of such

employer . . . .” 29 U.S.C. § 1002(7). This definition encompasses “former employees who have . . . a colorable claim to

vested benefits.” Firestone Tire & Rubber Co. v. Bruch, 489

U.S. 101, 117 (1989) (internal quotation omitted). “In contrast, former employees do not have standing if a successful

suit would result in a damage award that was not for benefits

due under the plan.” Vaughn v. Bay Envtl. Mgmt., Inc., 567

F.3d 1021, 1025 (9th Cir. 2009) (citing Kuntz v. Reese, 785

F.2d 1410, 1411 (9th Cir. 1986) (per curiam)).

The district court relied on Kuntz in concluding that Harris

was not a “participant” in the Amgen Plan. In Kuntz, we held

that a plaintiff who alleges that a former employer misrepresented the benefits due under a defined benefit ERISA plan

does not have standing if that plaintiff already received all

benefits that were due before filing suit and seeks only a damage award. Kuntz, 785 F.2d at 1411. The district court reasoned that because Harris had cashed out of the Amgen Plan,

any recovery he receives would be a damage recovery, and he

would not have prevailed in a “suit for benefits,” Firestone,

489 U.S. at 117, because “a damage claim is not a plan benefit.” Kuntz, 785 F.2d at 1411. 

[2] When it dismissed Harris’s claims, the district court did

not have the benefit of the reasoning and holding in our subsequent decision in Vaughn, in which we distinguished Kuntz

and held that “former employees who have received a full distribution of their account balances under a defined contribu8826 HARRIS v. AMGEN, INC.
tion pension plan have standing as plan participants under

ERISA to recover losses occasioned by a breach of fiduciary

duty that allegedly reduced the amount of their benefits.”

Vaughn, 567 F.3d at 1030. In Vaughn the plaintiff sued fiduciaries of his employer’s defined contribution ERISA plans,

alleging that the fiduciaries breached their fiduciary duties

with respect to the plans when they did not take certain

actions despite knowing the plans would be terminated. The

plaintiff claimed that “he has not received all of the benefits

due to him under the Plans . . . . because his accounts contained less than they would have if the fiduciaries had not

breached their duty of prudent investment.” Id. at 1026. 

The district court in Vaughn had granted the defendants’

motion to dismiss based on Kuntz, but on the appeal we distinguished Kuntz because there the plaintiffs had “conceded

that they had received all of the benefits due to them under the

plan [and] alleged only that they would not have participated

in the plan but-for the defendant’s misrepresentations about

the amount of benefits they would receive.” Id. We held in

Vaughn that “[b]ecause [the plaintiff] alleges that he did not

receive everything that was due to him under the Plan, he has

standing, even under Kuntz.” Id. We also noted that every

other circuit to have considered this issue has held that a

defined contribution plan plaintiff has ERISA standing. See

id. at 1023 & n.1 (citing cases). 

[3] Despite the marked similarity between this case and

Vaughn, Defendants contend that we should distinguish

Vaughn on two grounds. First, Defendants argue that Vaughn

is not controlling because there the employer terminated the

ERISA plans, but here Harris voluntarily withdrew his assets

from the still existing Amgen Plan. However, our reasoning

in Vaughn does not turn on a distinction between employer

termination and voluntary withdrawal. Also, other circuits

have granted plaintiffs ERISA standing to pursue breach of

fiduciary duty claims even when the plaintiffs had voluntarily

cashed out of their ERISA plans. See, e.g., In re Mutual

HARRIS v. AMGEN, INC. 8827
Funds Inv. Litig., 529 F.3d 207, 210 (4th Cir. 2008);

Harzewski v. Guidant Corp., 489 F.3d 799, 804 (7th Cir.

2007). When employees withdraw their funds from a benefit

plan, but claim that they would have had more to withdraw

absent breach of fiduciary duty by those managing the plan,

it is not difficult to see a common sense loss of benefits in

their plan caused by the alleged fiduciary breach. Relying on

Vaughn, which we conclude is not distinguishable in any

material way, we hold that employees who cash out of a

defined contribution ERISA plan are still “participants” in

that plan, as defined by 29 U.S.C. § 1002(7), regardless of

whether they withdrew their assets voluntarily. Thus the district court’s conclusion on standing, reached without the benefit of our subsequently decided Vaughn precedent, must be

reversed. Harris had standing to complain about his retirement

benefits plan. 

Second, at oral argument, Defendants conceded that Harris

was a participant in the Amgen Plan, but for the first time

argued that Harris should have statutory standing only under

ERISA § 502(a)(1)(B) (“Section 502(a)(1)(B)”), and not Section 502(a)(2).4

 Defendants rely on Chief Justice Roberts’s

concurrence in LaRue v. DeWolff, Boberg & Assocs., Inc.,

128 S. Ct. 1020 (2008). In LaRue the Supreme Court held that

an ERISA plan participant may recover monetary losses to his

or her individual plan account due to an alleged fiduciary

breach. Id. at 1026. In his concurrence, which was joined only

by Justice Kennedy, Chief Justice Roberts said that “[i]t is at

least arguable that a claim of this nature properly lies only

under § 502(a)(1)(B) of ERISA,” id., and he concluded that

“other courts in other cases remain free to consider what we

4Section 502(a)(1)(B) allows a plan participant “to recover benefits due

to him under the terms of his plan.” 29 U.S.C. § 1132(a)(1)(B). By contrast, Section 502(a)(2) encompasses claims based on breach of fiduciary

duty and allows for the more expansive recovery of “appropriate relief,”

including disgorgement of profits and equitable remedies. See 29 U.S.C.

§§ 1132(a)(2), 1109. 

8828 HARRIS v. AMGEN, INC.
have not—what effect the availability of relief under

§ 502(a)(1)(B) may have on a plan participant’s ability to proceed under § 502(a)(2),” id. at 1028. Defendants argue that

because Harris could bring a claim under Section

502(a)(1)(B), he lacks standing to bring a claim under Section

502(a)(2).

[4] We reject Defendants’ attempt to create a distinction on

standing between two similar ERISA causes of action.

Although Defendants are correct that in Vaughn a Section

502(a)(1)(B) remedy was unavailable,5 nothing in Vaughn

indicates that its decision depended on the unavailability of

this remedy. Also, at least two circuits that have analyzed

whether a distinction on standing exists between Sections

502(a)(1)(B) and 502(a)(2) have concluded that “[t]his dichotomy is untenable.” Evans v. Akers, 534 F.3d 65, 72-73 (1st

Cir. 2008) (“The chief difference between an action brought

under § 502(a)(1)(B) and § 502(a)(2) is the proper defendant,

not the proper plaintiff. . . . Bringing the suit under

§ 502(a)(2) does not change the underlying nature of the

plaintiffs’ claim as one for benefits.” (quotation and citation

omitted)); Graden v. Conexant Sys. Inc., 496 F.3d 291, 301

(3d Cir. 2007) (stating that even when plaintiffs “could

demand a full benefit payment from the plan itself under

§ 1132(a)(1)(B) . . . . for most plaintiffs the sensible route is

to use § 1132(a)(2) to get the money in the first instance from

a solvent party liable to make good on the loss, not from the

plan itself”). We agree with the reasoning of the First and

Third Circuits, and we join them in holding that an ERISA

plan participant who no longer has assets in the plan has statutory standing to assert fiduciary duty claims under Section

5

In Vaughn, the ERISA plans at issue “no longer exist[ed] and the allegedly imprudent investments were the result of actions by the trustees and

investment advisors, not the plan administrator. As a result, Vaughn could

not have brought an action under § 502(a)(1)(B) because the proper defendants could not have been named under that subsection.” Vaughn, 567

F.3d at 1029. 

HARRIS v. AMGEN, INC. 8829
502(a)(2), even when relief is also available under Section

502(a)(1)(B).

B

Defendants next argue that even if Harris has statutory

standing, we still must dismiss his claims for lack of standing

under Article III of the United States Constitution because

Harris has not sustained an injury that is redressable by a

favorable decision of this court. See Lujan v. Defenders of

Wildlife, 504 U.S. 555, 561 (1992) (holding that Article III

standing requires that “it must be ‘likely,’ as opposed to

merely ‘speculative,’ that the injury will be redressed by a

favorable decision” (quotation omitted)). Defendants contend

that any benefit to Harris is “merely speculative” because any

recovery from Harris’s suit would go to the Amgen Plan, and

plan administrators have discretion in allocating plan assets.

See Paulsen v. CNF Inc., 559 F.3d 1061, 1073 (9th Cir. 2009)

(“The Supreme Court has held that recovery for a violation of

29 U.S.C. § 1109 for breach of fiduciary duty inures to the

benefit of the plan as a whole, and not to an individual beneficiary.” (citing Mass. Mut. Life Ins. Co. v. Russell, 473 U.S.

134, 140-42 (1985))). 

[5] Defendants are not the first ERISA defendants to make

this redressability argument, and to our knowledge their

asserted reasoning has been rejected by every circuit to consider the issue with respect to defined contribution plans. See

Evans, 534 F.3d at 74-75 (“[T]he [ERISA] plaintiffs’ allegation of fiduciary mismanagement . . . identifies a concrete

injury that is redressable by a court and falls within the scope

of Article III standing.”); Mutual Funds, 529 F.3d at 210

(“[B]ecause the plans at issue are defined contribution plans,

rather than defined benefit plans, we reject the defendants’

argument that the plaintiffs’ injuries are not redressable and

therefore that they lack Article III standing.”); Harzewski, 489

F.3d at 803 (“Obviously the named plaintiffs have [Article

III] standing to sue . . . because if they win they will obtain

8830 HARRIS v. AMGEN, INC.
a tangible benefit.”). With a favorable ruling, a defined contribution plan plaintiff alleging breach of fiduciary duty claims

under Section 502(a)(2) can gain redress by “su[ing] for an

adjustment in the benefits designed to give him what he

would have received had the formula been honored,”

Harzewski, 489 F.3d at 804-05.

Our previous decisions dismissing ERISA suits for lack of

redressability involved fundamentally different facts. Paulsen

concerned a Section 502(a)(2) suit on a defined benefit plan,

but “the redressability problem that arises in defined benefit

plans does not exist with respect to defined contribution

plans” because in defined contribution plans a successful suit

leads to restoration of individual accounts. Mutual Funds, 529

F.3d at 218; see also Vaughn, 567 F.3d at 1028 n.9

(“[P]recedent from cases involving defined benefit plans is

not automatically applicable in cases involving defined contribution plans.” (citing LaRue, 128 S. Ct. at 1025)). Also, in

Paulsen the plaintiffs’ ERISA plan was “distress terminated”

and had fallen under the management of the Pension Benefit

Guaranty Corporation (“PBGC”) acting as a trustee. Paulsen,

559 F.3d at 1066. We noted that the PBGC was controlled by

a “complex priority scheme” in paying benefits, and it was

under no obligation to pay the plaintiffs any money above a

statutory minimum. Id. at 1073. 

In Glanton ex rel. ALCOA Prescription Drug Plan v.

AdvancePCS Inc., 465 F.3d 1123 (9th Cir. 2006), the plaintiffs, who were prescription drug plan participants, claimed

that their success in an ERISA lawsuit regarding drug costs

would cause the plan administrators to lower co-payment or

contribution amounts. Id. at 1125. The link between the plaintiffs’ claims and possible recovery in Glanton was more attenuated than are Harris’s claims here, because the Glanton

plaintiffs relied not directly on fiduciary recovery but on the

assumption that the defendants would voluntarily change copayment requirements. See id.

HARRIS v. AMGEN, INC. 8831
[6] We agree with the First, Fourth, and Seventh Circuits

that there is no lack of redressability merely because a plaintiff ’s recovery under Section 502(a)(2) might first go to the

defined contribution plan rather than directly to the plaintiff.

We hold that a plaintiff who has cashed out of a defined contribution ERISA plan has standing under Article III to assert

Section 502(a)(2) claims relating to that plan.

[7] In summary, we reject Defendants’ arguments that Harris lacks either statutory or constitutional standing. We follow

our precedent in Vaughn and hold that a former employee

who has voluntarily withdrawn his or her assets from a

defined contribution ERISA plan has statutory standing as a

“participant” of that plan. That employee has standing to

assert claims for breach of fiduciary duty under section

502(a)(2) of ERISA even if claims under Section

§ 502(a)(1)(B) are also available. We also hold that Section

502(a)(2) claims on a defined contribution plan to recover

losses occasioned by a breach of fiduciary duty are redressable and meet the constitutional standing requirements of

Article III. Accordingly, we reverse the district court’s dismissal of Harris’s claims on standing grounds.

C

[8] Both plaintiffs challenge the district court’s decision to

deny them leave to amend their Complaint. Plaintiffs seek

through amendment to cure any defects in their allegations

against the individual defendants,6 and properly to name the

6The district court determined that the Complaint made insufficient factual allegations that the individual defendants were fiduciaries of Ramos’s

ERISA plan. See Pegram v. Herdrich, 530 U.S. 211, 226 (2000) (“In

every case charging breach of ERISA fiduciary duty, then, the threshold

question is . . . whether [the defendant] was acting as a fiduciary (that is,

was performing a fiduciary function) when taking the action subject to

complaint.”). We agree with the district court that the Complaint does not

contain factual allegations against the individual defendants sufficient “to

8832 HARRIS v. AMGEN, INC.
misidentified fiduciaries of the Amgen and Manufacturing

Plans. Dismissal without leave to amend is improper unless it

is “clear” that “the complaint could not be saved by any

amendment.” Lee v. City of Los Angeles, 250 F.3d 668, 692

(9th Cir. 2001) (quotation omitted); see also Chappel v. Lab.

Corp. of Am., 232 F.3d 719, 726 (9th Cir. 2000) (holding that

the district court abused its discretion in denying an ERISA

plaintiff leave to amend because “amendment would allow

[the plaintiff] to state a legally cognizable claim for breach of

fiduciary duty”). We agree with Plaintiffs that the district

court erred by not granting leave to amend.

[9] We do not believe that it can be fairly said that the

Complaint cannot be saved by amendment. The district court

denied Harris leave to amend because it had determined that

Harris lacked standing and thus could not allege a valid claim.

Because we have held that Harris has statutory and constitutional standing, we also conclude that Harris should be

allowed to amend his claims in the Complaint to challenge the

proper defendants and to present any viable claim. Both plaintiffs also should be allowed to amend their claims against the

individual defendants because it is not “clear” that Plaintiffs

cannot save their Complaint by adding sufficient factual allegations supporting their claims that the individual defendants

were fiduciaries of the Amgen or Manufacturing Plans. Lee,

250 F.3d at 692.

Plaintiffs’ remaining claims were dismissed because they

misidentified the proper fiduciary defendants. Although Plaintiffs did not name the Fiduciary Committee as a defendant,

they did name a Retirement Benefits Committee, which they

raise a right to relief above the speculative level.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007); id. (stating that to survive a motion

to dismiss, a plaintiff must provide “more than labels and conclusions, and

a formulaic recitation of the elements of a cause of action will not do”);

see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009) (holding that the

pleading requirements stated in Twombly apply to “all civil actions”). 

HARRIS v. AMGEN, INC. 8833
thought served the same fiduciary functions. Also, Plaintiffs

identified Amgen as the named fiduciary of the Manufacturing Plan, when in fact Amgen Manufacturing is the named

fiduciary of that plan. In both cases, Plaintiffs would have

sued the proper fiduciary but for a misidentification of the

correct defendant, and their claims against Amgen Manufacturing and the Fiduciary Committee can be saved by amendment. See Bowles v. Reade, 198 F.3d 752, 758-59 (9th Cir.

1999) (reversing denial of leave to amend when the defendant

to be added by the amendment “knew or should have known

that, but for the mistaken identification, she would be a proper

party defendant in the action”). 

[10] We conclude that Plaintiffs are entitled by law to

amend their Complaint to assert claims against the proper

fiduciaries of the Amgen and Manufacturing Plans. A sound

theory of pleading should normally permit at least one amendment of a complex ERISA complaint that has failed to state

a claim where, as here, the Plaintiffs might be expected to

have less than complete information about the defendants’

organization and ERISA responsibilities, where there is no

meaningful evidence of bad faith on the part of the plaintiffs,

and where there is no significant prejudice to the defendants.

We reverse the district court’s denial of leave to amend.

III

Fiduciaries of an ERISA defined contribution plan who

breach their fiduciary duty might cause employees to receive

fewer benefits from their plans than they would have received

absent the breach. This is true even if the employees later

withdraw their assets from the plan. We conclude that former

employees who have voluntarily withdrawn assets from their

ERISA defined contribution plans have statutory and Article

III standing to assert fiduciary claims against Plan fiduciaries

under ERISA § 502(a)(2), regardless of whether a separate

remedy is available under ERISA § 502(a)(1)(B). We also

conclude that any defects in Plaintiffs’ Section 502(a)(2)

8834 HARRIS v. AMGEN, INC.
Complaint possibly can be cured through amendment. We

reverse the district court’s dismissal of Plaintiffs’ Complaint,

and we remand for proceedings consistent with this opinion.

REVERSED and REMANDED.

HARRIS v. AMGEN, INC. 8835