SUPREME COURT OF THE UNITED STATES

Syllabus

LARUE v. DEWOLFF, BOBERG & ASSOCIATES, INC.,
ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06856. 
Argued November 26, 2007Decided February 20, 2008

Petitioner, a participant in a defined contribution pension plan, alleged that the plan administrators failure to follow petitioners investment directions "depleted" his interest in the plan by approximately$150,000 and amounted to a breach of fiduciary duty under the Employee Retirement Income Security Act of 1974 (ERISA). The District Court granted respondents judgment on the pleadings, and the Fourth Circuit affirmed. Relying on Massachusetts Mutual Life Ins. Co. v. Russell, 473 U. S. 134, the Circuit held that ERISA 502(a)(2)provides remedies only for entire plans, not for individuals.

Held: Although 502(a)(2) does not provide a remedy for individual injuries distinct from plan injuries, it does authorize recovery for fiduciary breaches that impair the value of plan assets in a participants individual account. Section 502(a)(2) provides for suits to enforce the liability-creating provisions of 409, concerning breaches of fiduciary duties that harm plans. The principal statutory duties imposed by409 relate to the proper management, administration, and investment of plan assets, with an eye toward ensuring that the benefits authorized by the plan are ultimately paid to plan participants. The misconduct that petitioner alleges falls squarely within that category, unlike the misconduct in Russell. There, the plaintiff received all of the benefits to which she was contractually entitled, but sought consequential damages arising from a delay in the processing of her claim. Russells emphasis on protecting the "entire plan" reflects the fact that the disability plan in Russell, as well as the typical pension plan at that time, promised participants a fixed benefit. Misconduct by such a plans administrators will not affect an individuals entitlement to a defined benefit unless it creates or enhances the risk of default by the entire plan. For defined contribution plans, however, fiduciary misconduct need not threaten the entire plans solvency to reduce benefits below the amount that participants would otherwise receive. Whether a fiduciary breach diminishes plan assets payable to all participants or only to particular individuals, it creates the kind of harms that concerned 409s draftsmen. Thus, Russells "entire plan" references, which accurately reflect 409s operation in the defined benefit context, are beside the point in the defined contribution context. Pp. 48.

450 F. 3d 570, vacated and remanded.

STEVENS, J., delivered the opinion of the Court, in which SOUTER, GINSBURG, BREYER, and ALITO, JJ., joined. ROBERTS, C. J., filed an opinion concurring in part and concurring in the judgment, in which KENNEDY, J., joined. THOMAS, J., filed an opinion concurring in the judgment, in which SCALIA, J., joined.

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, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 06856

JAMES LARUE, PETITIONER v. DEWOLFF, BOBERG & ASSOCIATES, INC., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT

[February 20, 2008]

JUSTICE STEVENS delivered the opinion of the Court.

In Massachusetts Mut. Life Ins. Co. v. Russell, 473 U. S. 134 (1985), we held that a participant in a disability plan that paid a fixed level of benefits could not bring suit under 502(a)(2) of the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 891, 29 U. S. C.1132(a)(2), to recover consequential damages arising from delay in the processing of her claim. In this case we consider whether that statutory provision authorizes a participant in a defined contribution pension plan to sue a fiduciary whose alleged misconduct impaired the value of plan assets in the participants individual account.¹ Relying on our decision in Russell, the Court of Appeals for the Fourth Circuit held that 502(a)(2) "provides remedies only for entire plans, not for individuals. . . . Recovery under this subsection must inure[ ] to the benefit of the plan as a whole, not to particular persons with rights under the plan." 450 F. 3d 570, 572573 (2006) (quoting Russell, 473 U. S., at 140). While language in our Russell opinion is consistent with that conclusion, the rationale for Russells holding supports the opposite result in this case.

I

Petitioner filed this action in 2004 against his former employer, DeWolff, Boberg & Associates (DeWolff), and the ERISA-regulated 401(k) retirement savings plan administered by DeWolff (Plan). The Plan permits participants to direct the investment of their contributions in accordance with specified procedures and requirements. Petitioner alleged that in 2001 and 2002 he directed De-Wolff to make certain changes to the investments in his individual account, but DeWolff never carried out these directions. Petitioner claimed that this omission "depleted" his interest in the Plan by approximately$150,000, and amounted to a breach of fiduciary duty under ERISA. The complaint sought "make-whole or other equitable relief as allowed by [502(a)(3)]," as well as "such other and further relief as the court deems just and proper." Civil Action No. 2:04174718 (D. S. C.), p. 4, 2Record, Doc. 1. Respondents filed a motion for judgment on the pleadings, arguing that the complaint was essentially a claim for monetary relief that is not recoverable under 502(a)(3). Petitioner countered that he "d[id] not wish for the court to award him any money, but . . . simply want[ed] the plan to properly reflect that which would be his interest in the plan, but for the breach of fiduciary duty." Reply to Defendants Motion to Dismiss, p. 7, 3 id., Doc. 17. The District Court concluded, however, that since respondents did not possess any disputed funds that rightly belonged to petitioner, he was seeking damages rather than equitable relief available under 502(a)(3). Assuming, arguendo, that respondents had beached a fiduciary duty, the District Court nonetheless granted their motion.

On appeal petitioner argued that he had a cognizable claim for relief under 502(a)(2) and 502(a)(3) of ERISA. The Court of Appeals stated that petitioner had raised his502(a)(2) argument for the first time on appeal, but nevertheless rejected it on the merits.

Section 502(a)(2) provides for suits to enforce the liability-creating provisions of 409, concerning breaches of fiduciary duties that harm plans.² The Court of Appeals cited language from our opinion in Russell suggesting that that these provisions "protect the entire plan, rather than the rights of an individual beneficiary." 473 U. S., at 142. It then characterized the remedy sought by petitioner as "personal" because he "desires recovery to be paid into his plan account, an instrument that exists specifically for his benefit," and concluded:

"We are therefore skeptical that plaintiffs individual remedial interest can serve as a legitimate proxy for the plan in its entirety, as [502(a)(2)] requires. To be sure, the recovery plaintiff seeks could be seen as accruing to the plan in the narrow sense that it would be paid into plaintiffs plan account, which is part of the plan. But such a view finds no license in the statutory text, and threatens to undermine the careful limitations Congress has placed on the scope of ERISA relief." 450 F. 3d, at 574.

The Court of Appeals also rejected petitioners argument that the make-whole relief he sought was "equitable" within the meaning of 502(a)(3). Although our grant of certiorari, 551 U. S. ___ (2007), encompassed the 502(a)(3) issue, we do not address it because we conclude that the Court of Appeals misread 502(a)(2).

II

As the case comes to us we must assume that respondents breached fiduciary obligations defined in 409(a), and that those breaches had an adverse impact on the value of the plan assets in petitioners individual account. Whether petitioner can prove those allegations and whether respondents may have valid defenses to the claim are matters not before us.³ Although the record does not reveal the relative size of petitioners account, the legal issue under 502(a)(2) is the same whether his account includes 1% or 99% of the total assets in the plan.

As we explained in Russell, and in more detail in our later opinion in Varity Corp. v. Howe, 516 U. S. 489, 508 512 (1996), 502(a) of ERISA identifies six types of civil actions that may be brought by various parties. The second, which is at issue in this case, authorizes the Secretary of Labor as well as plan participants, beneficiaries, and fiduciaries, to bring actions on behalf of a plan to recover for violations of the obligations defined in 409(a). The principal statutory duties imposed on fiduciaries by that section "relate to the proper management, administration, and investment of fund assets," with an eye toward ensuring that "the benefits authorized by the plan" are ultimately paid to participants and beneficiaries. Russell, 473 U. S., at 142; see also Varity, 516 U. S., at 511512 (noting that 409s fiduciary obligations "relat[e] to the plans financial integrity" and "reflec[t] a special congressional concern about plan asset management"). The misconduct alleged by the petitioner in this case falls squarely within that category.⁴ 

The misconduct alleged in Russell, by contrast, fell outside this category. The plaintiff in Russell received all of the benefits to which she was contractually entitled, but sought consequential damages arising from a delay in the processing of her claim. 473 U. S., at 136137. In holding that 502(a)(2) does not provide a remedy for this type of injury, we stressed that the text of 409(a) characterizes the relevant fiduciary relationship as one "with respect to a plan," and repeatedly identifies the "plan" as the victim of any fiduciary breach and the recipient of any relief. See id., at 140. The legislative history likewise revealed that "the crucible of congressional concern was misuse and mismanagement of plan assets by plan administrators." Id., at 141, n. 8. Finally, our review of ERISA as a whole confirmed that 502(a)(2) and 409 protect "the financial integrity of the plan," id., at 142, n. 9, whereas other provisions specifically address claims for benefits. See id., at 143144 (discussing 502(a)(1)(B) and 503). We therefore concluded:

"A fair contextual reading of the statute makes it abundantly clear that its draftsmen were primarily concerned with the possible misuse of plan assets, and with remedies that would protect the entire plan, rather than with the rights of an individual beneficiary." Id., at 142.

Russells emphasis on protecting the "entire plan" from fiduciary misconduct reflects the former landscape of employee benefit plans. That landscape has changed.

Defined contribution plans dominate the retirement plan scene today.⁵ In contrast, when ERISA was enacted, and when Russell was decided, "the [defined benefit] plan was the norm of American pension practice." J. Langbein, S. Stabile, & B. Wolk, Pension and Employee Benefit Law 58 (4th ed. 2006); see also Zelinsky, The Defined Contribution Paradigm, 114 Yale L. J. 451, 471 (2004) (discussing the "significant reversal of historic patterns under which the traditional defined benefit plan was the dominant paradigm for the provision of retirement income"). Unlike the defined contribution plan in this case, the disability plan at issue in Russell did not have individual accounts; it paid a fixed benefit based on a percentage of the employees salary. See Russell v. Massachusetts Mut. Life Ins. Co., 722 F. 2d 482, 486 (CA9 1983).

The "entire plan" language in Russell speaks to the impact of 409 on plans that pay defined benefits. Misconduct by the administrators of a defined benefit plan will not affect an individuals entitlement to a defined benefit unless it creates or enhances the risk of default by the entire plan. It was that default risk that prompted Congress to require defined benefit plans (but not defined contribution plans) to satisfy complex minimum funding requirements, and to make premium payments to the Pension Benefit Guaranty Corporation for plan termination insurance. See Zelinsky, 114 Yale L. J., at 475478.

For defined contribution plans, however, fiduciary misconduct need not threaten the solvency of the entire plan to reduce benefits below the amount that participants would otherwise receive. Whether a fiduciary breach diminishes plan assets payable to all participants and beneficiaries, or only to persons tied to particular individual accounts, it creates the kind of harms that concerned the draftsmen of 409. Consequently, our references to the "entire plan" in Russell, which accurately reflect the operation of 409 in the defined benefit context, are beside the point in the defined contribution context.

Other sections of ERISA confirm that the "entire plan" language from Russell, which appears nowhere in 409 or 502(a)(2), does not apply to defined contribution plans. Most significant is 404(c), which exempts fiduciaries from liability for losses caused by participants exercise of control over assets in their individual accounts. See also 29 CFR 2550.404c1 (2007). This provision would serve no real purpose if, as respondents argue, fiduciaries never had any liability for losses in an individual account.

We therefore hold that although 502(a)(2) does not provide a remedy for individual injuries distinct from plan injuries, that provision does authorize recovery for fiduciary breaches that impair the value of plan assets in a participants individual account. Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.⁶ 

It is so ordered.

Opinion of ROBERTS, C. J. CHIEF JUSTICE ROBERTS, with whom JUSTICE KENNEDY joins, concurring in part and concurring in the judgment.

In the decision below, the Fourth Circuit concluded that the loss to LaRues individual plan account did not permit him to "serve as a legitimate proxy for the plan in its entirety," thus barring him from relief under 502(a)(2) of the Employee Retirement Income Security Act of 1974(ERISA), 29 U. S. C. 1132(a)(2). 450 F. 3d 570, 574 (2006). The Court today rejects that reasoning. See ante, at 4, 78. I agree with the Court that the Fourth Circuit's analysis was flawed, and join the Courts opinion to that extent.

The Court, however, goes on to conclude that 502(a)(2) does authorize recovery in cases such as the present one. See ante, at 78. It is not at all clear that this is true. LaRues right to direct the investment of his contributions was a right granted and governed by the plan. See ante, at 2. In this action, he seeks the benefits that would otherwise be due him if, as alleged, the plan carried out his investment instruction. LaRues claim, therefore, is a claim for benefits that turns on the application and interpretation of the plan terms, specifically those governing investment options and how to exercise them.

It is at least arguable that a claim of this nature properly lies only under 502(a)(1)(B) of ERISA. That provision allows a plan participant or beneficiary "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan." 29 U. S. C. 1132(a)(1)(B). It is difficult to imagine a more accurate description of LaRues claim. And in fact claimants have filed suit under 502(a)(1)(B) alleging similar benefit denials in violation of plan terms. See, e.g., Hess v. Reg-Ellen Machine Tool Corp., 423 F. 3d 653, 657 (CA7 2005) (allegation made under 502(a)(1)(B) that a plan administrator wrongfully denied instruction to move retirement funds from employers stock to a diversified investment account).

If LaRue may bring his claim under 502(a)(1)(B), it is not clear that he may do so under 502(a)(2) as well. Section 502(a)(2) provides for "appropriate" relief. Construing the same term in a parallel ERISA provision, we have held that relief is not "appropriate" under 502(a)(3) if another provision, such as 502(a)(1)(B), offers an adequate remedy. See Varity Corp. v. Howe, 516 U. S. 489, 515 (1996). Applying the same rationale to an interpretation of "appropriate" in 502(a)(2) would accord with our usual preference for construing the "same terms [to] have the same meaning in different sections of the same statute," Barnhill v. Johnson, 503 U. S. 393, 406 (1992), and with the view that ERISA in particular is a "comprehensive and reticulated statute" with "carefully integrated civil enforcement provisions," Massachusetts Mut. Life Ins. Co. v. Russell, 473 U. S. 134, 146 (1985) (quoting Nachman Corp. v. Pension Benefit Guaranty Corporation, 446 U. S. 359, 361 (1980)). In a variety of contexts, some Courts of Appeals have accordingly prevented plaintiffs from recasting what are in essence plan-derived benefit claims that should be brought under 502(a)(1)(B) as claims for fiduciary breaches under 502(a)(2). See, e.g., Coyne & Delany Co. v. Blue Cross & Blue Shield of Va., Inc., 102 F. 3d 712, 714 (CA4 1996). Other Courts of Appeals have disagreed with this approach. See, e.g., Graden v. Conexant Systems Inc., 496 F. 3d 291, 301 (CA3 2007).

The significance of the distinction between a 502(a)(1)(B) claim and one under 502(a)(2) is not merely a matter of picking the right provision to cite in the complaint. Allowing a 502(a)(1)(B) action to be recast as one under 502(a)(2) might permit plaintiffs to circumvent safeguards for plan administrators that have developed under 502(a)(1)(B). Among these safeguards is the requirement, recognized by almost all the Courts of Appeals, see Fallick v. Nationwide Mut. Ins. Co., 162 F. 3d 410, 418, n. 4 (CA6 1998) (citing cases), that a participant exhaust the administrative remedies mandated by ERISA 503, 29 U. S. C. 1133, before filing suit under 502(a)(1)(B).^* Equally significant, this Court has held that ERISA plans may grant administrators and fiduciaries discretion in determining benefit eligibility and the meaning of plan terms, decisions that courts may review only for an abuse of discretion. Firestone Tire & Rubber Co. v. Bruch, 489 U. S. 101, 115 (1989).

These safeguards encourage employers and others to undertake the voluntary step of providing medical and retirement benefits to plan participants, see Aetna Health Inc. v. Davila, 542 U. S. 200, 215 (2004), and have no doubt engendered substantial reliance interests on the part of plans and fiduciaries. Allowing what is really a claim for benefits under a plan to be brought as a claim for breach of fiduciary duty under 502(a)(2), rather than as a claim for benefits due "under the terms of [the] plan,"502(a)(1)(B), may result in circumventing such plan I do not mean to suggest that these are settled questions. They are not. Nor are we in a position to answer them. LaRue did not rely on 502(a)(1)(B) as a source of relief, and the courts below had no occasion to address the argument, raised by an amicus in this Court, that the availability of relief under 502(a)(1)(B) precludes LaRues fiduciary breach claim. See Brief for ERISA Industry Committee as Amicus Curiae 1330. I simply highlight the fact that the Courts determination that the present claim may be brought under 502(a)(2) is reached without considering whether the possible availability of relief under 502(a)(1)(B) alters that conclusion. See, e.g., United Parcel Service, Inc. v. Mitchell, 451 U. S. 56, 60, n. 2 (1981) (noting general reluctance to consider arguments raised only by an amicus and not considered by the courts below). In matters of statutory interpretation, where principles of stare decisis have their greatest effect, it is important that we not seem to decide more than we do. I see nothing in todays opinion precluding the lower courts on remand, if they determine that the argument is properly before them, from considering the contention that LaRues claim may proceed only under 502(a)(1)(B). In any event, other courts in other cases remain free to consider what we have notwhat effect the availability of relief under 502(a)(1)(B) may have on a plan participant's ability to proceed under 502(a)(2).

THOMAS, J., concurring in judgment JUSTICE THOMAS, with whom JUSTICE SCALIA joins, concurring in the judgment.

I agree with the Court that petitioner alleges a cognizable claim under 502(a)(2) of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U. S. C. 1132(a)(2), but it is ERISAs text and not "the kind of harms that concerned [ERISAs] draftsmen" that compels my decision. Ante, at 7. In Massachusetts Mut. Life Ins. Co. v. Russell, 473 U. S. 134 (1985), the Court held that409 of ERISA, 29 U. S. C. 1109, read together with502(a)(2), authorizes recovery only by "the plan as an entity," 473 U. S., at 140, and does not permit individuals to bring suit when they do not seek relief on behalf of the plan, id., at 139144. The majority accepts Russells fundamental holding, but reins in the Courts further suggestion in Russell that suits under 502(a)(2) are meant to "protect the entire plan," rather than "the rights of an individual beneficiary." Ante, at 48; see Russell, supra, at 142. The majority states that emphasizing the "entire plan" was a sensible application of 409 and502(a)(2) in the historical context of defined benefit plans, but that the subsequent proliferation of defined contribution plans has rendered Russells dictum inapplicable to most modern cases. Ante, at 67. In concluding that a loss suffered by a participants defined contribution plan account because of a fiduciary breach "creates the kind of harms that concerned the draftsmen of 409," the majority holds that 502(a)(2) authorizes recovery for plan participants such as petitioner. Ante, at 78.

Although I agree with the majoritys holding, I write separately because my reading of 409 and 502(a)(2) is not contingent on trends in the pension plan market. Nor does it depend on the ostensible "concerns" of ERISAs drafters. Rather, my conclusion that petitioner has stated a cognizable claim flows from the unambiguous text of 409 and 502(a)(2) as applied to defined contribution plans. Section 502(a)(2) states that "[a] civil action may be brought" by a plan "participant, beneficiary or fiduciary," or by the Secretary of Labor, to obtain "appropriate relief" under 409. 29 U. S. C. 1132(a)(2). Section 409(a) provides that "[a]ny person who is a fiduciary with respect to a plan . . . shall be personally liable to make good to such plan any losses to the plan resulting from each [fiduciary] breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary . . . ." 29 U. S. C. 1109(a) (emphasis added).

The plain text of 409(a), which uses the term "plan" five times, leaves no doubt that 502(a)(2) authorizes recovery only for the plan. Likewise, Congress repeated use of the word "any" in 409(a) clarifies that the key factor is whether the alleged losses can be said to be losses "to the plan," not whether they are otherwise of a particular nature or kind. See, e.g., Ali v. Federal Bureau of Prisons, ante, at 4 (noting that the natural reading of "any" is "one or some indiscriminately of whatever kind" (internal quotation marks omitted)). On their face, 409(a) and 502(a)(2) permit recovery of all plan losses caused by a fiduciary breach.

The question presented here, then, is whether the losses to petitioners individual 401(k) account resulting from respondents alleged breach of their fiduciary duties were losses "to the plan." In my view they were, because the assets allocated to petitioners individual account were plan assets. ERISA requires the assets of a defined contribution plan (including "gains and losses" and legal recoveries) to be allocated for bookkeeping purposes to individual accounts within the plan for the beneficial interest of the participants, whose benefits in turn depend on the allocated amounts. See 29 U. S. C. 1002(34) (defining a "defined contribution plan" as a "plan which provides for an individual account for each participant and for benefits based solely upon the amount contributed to the participants account, and any income, expenses, gains and losses, and any forfeitures of accounts of other participants which may be allocated to such participants account"). Thus, when a defined contribution plan sustains losses, those losses are reflected in the balances in the plan accounts of the affected participants, and a recovery of those losses would be allocated to one or more individual accounts.

The allocation of a plans assets to individual accounts for bookkeeping purposes does not change the fact that all the assets in the plan remain plan assets. A defined contribution plan is not merely a collection of unrelated accounts. Rather, ERISA requires a plans combined assets to be held in trust and legally owned by the plan trustees. See 29 U. S. C. 1103(a) (providing that "all assets of an employee benefit plan shall be held in trust by one or more trustees"). In short, the assets of a defined contribution plan under ERISA constitute, at the very least, the sum of all the assets allocated for bookkeeping purposes to the participants individual accounts. Because a defined contribution plan is essentially the sum of its parts, losses attributable to the account of an individual participant are necessarily "losses to the plan" for purposes of 409(a).Accordingly, when a participant sustains losses to his individual account as a result of a fiduciary breach, the plan's aggregate assets are likewise diminished by the same amount, and 502(a)(2) permits that participant to recover such losses on behalf of the plan.^** 

^* Of course, a participant suing to recover benefits on behalf of the plan is not entitled to monetary relief payable directly to him; rather, any recovery must be paid to the plan.

^** Sensibly, the Court leaves open the question whether exhaustion may be required of a claimant who seeks recovery for a breach of fiduciary duty under 502(a)(2). See ante, at 4, n. 3. terms.

¹ As its names imply, a "defined contribution plan" or "individual account plan" promises the participant the value of an individual account at retirement, which is largely a function of the amounts contributed to that account and the investment performance of those contributions. A "defined benefit plan," by contrast, generally promises the participant a fixed level of retirement income, which is typically based on the employees years of service and compensation. See 3(34)(35), 29 U. S. C. 1002(34)(35); P. Schneider & B. Freedman, ERISA: A Comprehensive Guide 3.02 (2d ed. 2003).

² Section 409(a) provides: "Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this title shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary, and shall be subject to such other equitable or remedial relief as the court may deem appropriate, including removal of such fiduciary. A fiduciary may also be removed for a violation of section 411 of this Act." 88 Stat. 886, 29 U. S. C. 1109(a).

³ For example, we do not decide whether petitioner made the alleged investment directions in accordance with the requirements specified by the Plan, whether he was required to exhaust remedies set forth in the Plan before seeking relief in federal court pursuant to 502(a)(2), or whether he asserted his rights in a timely fashion.

⁴ The record does not reveal whether the alleged $150,000 injury represents a decline in the value of assets that DeWolff should have sold or an increase in the value of assets that DeWolff should have purchased. Contrary to respondents argument, however, 502(a)(2) encompasses appropriate claims for "lost profits." See Brief for Respondents 1213. Under the common law of trusts, which informs our interpretation of ERISAs fiduciary duties, see Varity, 516 U. S., at 496497, trustees are "chargeable with . . . any profit which would have accrued to the trust estate if there had been no breach of trust," including profits forgone because the trustee "fails to purchase specific property which it is his duty to purchase." 1 Restatement (Second) Trusts 205, and Comment i, 211 (1957); see also 3 A. Scott, Law on Trusts 205, 211 (3d ed. 1967).

⁵ See, e.g., D. Rajnes, An Evolving Pension System: Trends in Defined Benefit and Defined Contribution Plans, Employee Benefit Research Institute (EBRI) Issue Brief No. 249 (Sept. 2002), http://www.ebri.org/ pdf/briefs PDF/0902ib.pdf (all Internet materials as visited Jan. 28, 2008,and available in Clerk of Courts case file); Facts from EBRI: Retirement Trends in the United States Over the Past Quarter-Century (June 2007), http://www.ebri.org/pdf/publications/facts/0607fact.pdf.

⁶ After our grant of certiorari respondents filed a motion to dismiss the writ, contending that the case is moot because petitioner is no longer a participant in the Plan. While his withdrawal of funds from the Plan may have relevance to the proceedings on remand, we denied their motion because the case is not moot. A plan "participant," as defined by 3(7) of ERISA, 29 U. S. C. 1002(7), may include a former employee with a colorable claim for benefits. See, e.g., Harzewski v. Guidant Corp., 489 F. 3d 799 (CA7 2007).