9th Circuit Gives Participants Second Chance in Company Stock Suit

July 20, 2009 (PLANSPONSOR.com) - The 9th U.S. Circuit Court of Appeals has ruled that former participants in Amgen Inc.'s retirement plans should be given another chance to state their case of breach of fiduciary duty over the offering of company stock as an investment in the plans.

The appellate court said the district court’s conclusion that former participant Steve Harris lacked standing because he withdrew his benefits from the plans was reached prior to the 9 th Circuit’s precedent decided in another case following the district court’s dismissal. In that subsequently decided case the 9 th Circuit concluded that “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.”

According to the opinion, Harris should have statutory standing under ERISA § 502(a)(1)(B) based on the U.S. Supreme Court’s decision in LaRue v. DeWolff, Boberg & Assocs., Inc., in which it held that an ERISA plan participant may recover monetary losses to his or her individual plan account due to an alleged fiduciary breach (see Justices OK Individual ERISA Suits in Landmark Ruling ).

Harris’ and co-plaintiff Dennis F. Ramos’ remaining claims were dismissed by the district court because they misidentified the proper fiduciary defendants. However, the appellate court said they 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.

The 9 th Circuit concluded that Harris and Ramos are entitled by law to amend their complaint to assert claims against the proper fiduciaries of the 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,” the court said.

Harris and Ramos sued Amgen, Inc. and several Amgen directors and officers, alleging that they breached their fiduciary duties under the Employee Retirement Income Security Act 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 9 th Circuit’s decision is here .