The fiduciary should act “solely in the interest of the participants and beneficiaries,” and must discharge his duties “in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of [ERISA].” §§ 1104(a)(1)(A), (D). 29 U.S.C. § 1109(a) authorizes a beneficiary to bring suit against a fiduciary who has violated any of the fiduciary obligations ERISA imposes. Specifically, Plaintiffs assert nine separate violations of Defendants' fiduciary duties.

See 29 U.S.C. §1104(a) (the duty of loyalty requires a fiduciary to act “for the exclusive purpose of providing benefits to participants and their beneficiaries…”). Because Ameriprise knew that Plan fiduciaries committed prohibited transactions and breaches of the duties of prudence and loyalty by having the Plan recordkept by ATC and Wachovia, Ameriprise must disgorge their profits from the Plan’s role in that sale back to the Plan under both 29 U.S.C. §1109 and federal common law. Where “no cause of action [is] stated under an ERISA provision, and the parties are not claiming that a particular ERISA section expressly governs the issue…, [courts] are compelled to look to federal common law.”

Case 2:14-cv-00778-DB Document 29 Filed 01/25/17 Page 44 of 47 -37- Plan as a whole. Therefore, she has no basis for seeking relief under 29 U.S.C. §1109 as a matter of law, and the Court should dismiss her breach of fiduciary claim based on 29 U.S.C. § 1109. Id.

IV. CONCLUSION The only issue here on remand is the “appropriate remedy” for Defendants’ fiduciary breach, under ERISA § 409(a), 29 U.S.C. § 1109(a). No other issue may be considered here.

See, e.g., Complaint at 61- 62, Prayer for Relief, A. If Plaintiffs prevail in establishing Defendants’ liability, Defendants will be obliged to make the Plan whole and take whatever equitable actions are ordered by the Court, including the declaratory and equitable relief specifically sought by Plaintiffs. See ERISA § 409(a), 29 U.S.C. § 1109(a); ERISA §§ 502(a)(2)-(3), 29 U.S.C. §§ 1132(a)(2)-(3). Recognizing this, courts have certified analogous claims under Rule 23(b)(2), reasoning that “monetary relief in a plan-wide action brought under ERISA section 502 is incidental and flows Case: 1:11-cv-01112 Document #: 69 Filed: 08/16/11 Page 19 of 22 PageID #:1223 15 from relief to the plan.”

IV. CONCLUSION The only issue here on remand is the “appropriate remedy” for Defendants’ fiduciary breach, under ERISA § 409(a), 29 U.S.C. § 1109(a). All of the issues raised by Defendants in this motion are precluded by the Mandate from the Ninth Circuit, and should not be considered at all.

No Plan participant would (or legally could) be required to contribute to that recovery from Defendants, regardless if he or she benefitted from Defendants’ breaches. See 29 U.S.C. § 1109(a) (only fiduciaries are liable “to make good to such plan any losses to the plan” resulting from fiduciary breaches). The relief requested also has no effect on the Plan’s current investment options; all of Plaintiff’s claims are limited to the Relevant Period. And if Plaintiff was to reach a Plan-wide settlement with Defendants, such a settlement would be submitted to the Court for approval.

Injunctive relief may be appropriate to require a removal of certain investment options or a bidding process to replace the Plans’ recordkeepers. See, e.g., Tussey v. ABB, Inc., No. 06-4305, 2012 U.S.Dist.LEXIS 45240, *114 (W.D. Mo. Mar. 31, 2012)(ordering breaching fiduciary to “utilize[ ] a competitive bidding process . . . to select a new recordkeeper”). Separate individual adjudications to resolve any one of these issues would create incompatible standards for Defendant in so far as losses or profits it must restore to the Plans under §1109(a), and what Defendant must do to the Plans’ investment options and service providers. As numerous courts have recognized, these claims satisfy the requirements for certification under Rule 23(b)(1)(A).

ERISA section 409, 29 U.S.C. § 1109 titled, “Liability for Breach of Fiduciary Duty,” states that breaching fiduciaries may be made liable “to make good to such plan any losses to the plan resulting from each such breach . . .” ERISA holds a trustee liable for a breach of fiduciary duty only to the extent that losses to the plan result from the breach. ERISA section 409, 29 U.S.C. § 1109; Brandt v. Grounds, 687 F.2d 895, 898 (7th Cir. 1982) (Section 1109 “clearly indicates that a causal connection is required between the breach of fiduciary duty and losses incurred by the plan.” Friend v. Sanwa Bank California, 35 F.3d 466, 469 (9th Cir. 1994).

at 185 (emphasis by the Court). The statute renders incidental any losses that might be suffered by participants and beneficiaries: Although the ultimate goal of ERISA § 409(a) is “the restoration of the trust beneficiaries to the position they would have occupied but for the breach of trust,” Donovan v. Bierwirth, 754 F.2d 1049, 1056 (2d Cir.1985) (“Bierwirth II”), the express language of that section makes the breaching fiduciary liable not directly for losses to beneficiaries, but for “losses to the plan,” 29 U.S.C. § 1109(a). Id.