Navarro v. Wells Fargo & Company

                UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                


SERGIO NAVARRO, THERESA            Case No. 24-cv-3043 (LMP/DTS)         
GAMAGE, DAYLE BULLA, and                                                 
JANE KINSELLA, on their own                                              
behalf, and on behalf of all others                                      
similarly situated, and on behalf of the                                 
Wells Fargo & Company Health Plan                                        
and its component plans,                                                 

                    Plaintiffs,  ORDER GRANTING DEFENDANT’S              
                                      MOTION TO DISMISS                  
v.                                                                       

WELLS FARGO & COMPANY,1                                                  
MICHAEL BRANCA, MARK                                                     
HICKMAN, DREW WINELAND,                                                  
DAVID GALLOREESE, BEI LING,                                              
and DOES 1–20,                                                           

                    Defendants.                                          


Kai  H.  Richter  and  Eleanor  E.  Frisch,  Cohen  Milstein  Sellers  &  Toll,  PLLC, 
Minneapolis, MN; Michelle C. Yau and Allison Pienta, Cohen Milstein Sellers & Toll, 
PLLC, Washington, DC; Michael B. Eisenkraft, Cohen Milstein Sellers & Toll, PLLC, 
New York, NY; Jamie Crooks and Michael D. Lieberman, Fairmark Partners, LLP, 
Washington, DC; and Daniel E. Gustafson and Amanda M. Williams, Gustafson Gluek 
PLLC, Minneapolis, MN, for Plaintiffs.                                    
Russell L. Hirschhorn, Joseph E. Clark, and Sydney L. Juliano, Proskauer Rose LLP, 
New York, NY; and Jeffrey P. Justman, and Kiera Murphy, Faegre Drinker Biddle & 
Reath LLP, Minneapolis, MN, for Defendants.                               

1    Wells Fargo & Company agreed to assume responsibility for “all acts or omissions 
relating to the allegations and claims in this action” and for “any judgment entered in this 
action,” and Plaintiffs agreed to dismiss all claims asserted against all defendants without 
prejudice except Wells Fargo.  ECF No. 27 ¶¶ 2–4.  Accordingly, the Court herein refers to 
Wells Fargo & Company as the Defendant in this case.                      
    Plaintiffs  Sergio  Navarro,  Theresa  Gamage,  Dayle  Bulla,  and  Jane  Kinsella 
(collectively, “Plaintiffs”) are former employees of Defendant Wells Fargo & Company 

(“Wells Fargo”), and former participants in the Wells Fargo & Company Health Plan (the 
“Plan”).  Plaintiffs allege that Wells Fargo mismanaged the Plan’s employee prescription 
drug  benefits  program,  resulting  in  Plaintiffs  and  other  Plan  participants  paying 
substantially more in premiums and out-of-pocket costs for certain prescription drug 
benefits than they would have absent Wells Fargo’s mismanagement.  Plaintiffs contend 
this  mismanagement  constitutes  a  breach  of  Wells  Fargo’s  fiduciary  duties  to  Plan 

participants in violation of the Employee Retirement Income Security Act (“ERISA”).  
Wells Fargo moves to dismiss Plaintiffs’ complaint for lack of Article III standing or, 
alternatively, for failure to state a claim upon which relief can be granted.  Because 
Plaintiffs are unable to show concrete individual harm, causation, and redressability, the 
Court finds that Plaintiffs lack standing to bring their claims.          

                    FACTUAL BACKGROUND2                                  
I.   The Plan                                                             
    The Plan is an employee welfare benefit plan3 established to provide medical 
benefits to Wells Fargo employees who choose to enroll.  See ECF No. 1 ¶ 20.  Wells Fargo, 


2    For purposes of assessing Wells Fargo’s motion to dismiss, the Court must accept 
the factual allegations in Plaintiffs’ complaint as true.  L.H. v. Indep. Sch. Dist., 

 (8th Cir. 2024).  As such, the Factual Background here is drawn largely from the 
complaint.                                                                
3    As relevant here, an “employee welfare benefit plan” is “any plan, fund, or program 
which was . . . established or maintained by an employer . . . for the purpose of providing 
as the Plan sponsor and a fiduciary of the Plan, is responsible for appointing and removing 
the individual administrators of the Plan, among whom are several Wells Fargo executives.  

 ¶ 22–23.  As such, Wells Fargo retains decision-making authority with respect to the 
management of the Plan.  

  Plaintiffs are each former employees of Wells Fargo and 
former participants4 in the Plan.  

 ¶¶ 14–17.                          
    To cover the expenses incurred in administering benefits to Plan participants, Wells 
Fargo established the Wells Fargo & Company Employee Benefit Trust (the “Trust”).  Id. 
¶ 21.  The Trust is funded by a combination of employer and employee contributions, along 

with unspecified amounts of investment income.  Id.  From 2018 to 2022, Wells Fargo 
consistently required participants to contribute, in the form of premiums, approximately 
25% of the Plan’s costs annually, with Wells Fargo contributing the remaining 75%.  Id. 
¶ 206.  Wells Fargo nevertheless retains “sole discretion” to set and modify participant 
contribution amounts.  ECF No. 31-3 at 9; see also ECF No. 31-2 at 22 (“The Plan Sponsor 

may establish different contribution rates for different classes of Participants . . . for any 
Benefit Option.”).  The Trust’s funds, regardless of their source, are considered assets of 
the Plan.  ECF No. 1 ¶ 21.                                                



for  its  participants  or  their  beneficiaries,  through  the  purchase  of  insurance  or 
otherwise . . . medical, surgical, or hospital care or benefits, or benefits in the event of 
sickness, accident, disability, death or unemployment.”  

(1). 
4    A “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.”  

(7).                 
II.  The Plan’s Prescription Drug Program                                 
    A.   Pharmacy Benefit Managers Generally                             

    Many employer-sponsored prescription drug plans, including the Plan, retain third-
party service providers called pharmacy benefit managers (“PBMs”) to administer the 
plans’ prescription drug benefits.  

.  PBMs handle the day-to-day administrative 
tasks for a plan’s prescription drug program, like processing claims, and typically offer 
other  services  like  negotiating  with  pharmacies  to  establish  coverage  networks  and 
determining which prescription drugs a plan will cover (and the extent to which they are 

covered).  

 ¶¶ 52–53.  Generally, when a plan participant is prescribed a drug and fills 
that  prescription  at  a  pharmacy,  the  participant  pays  the  portion  for  which  she  is 
responsible—like  her  co-pay  or  deductible—and  the  PBM  pays  the  pharmacy  the 
remaining balance and is later reimbursed by the Plan.  

.  The overall price of the 
prescription drug is negotiated by the PBM and the plan fiduciaries, 

, while the 

portion for which the participant is responsible is typically dictated by the terms of the plan, 
see, e.g., 

.                                                      
    PBMs are typically for-profit entities, and the largest PBMs tend to be publicly 
traded  companies.    

.   As  such,  two  dominant  PBM  models  have  emerged: 
(1) “traditional” PBMs, which generate profit through some mix of spread pricing,5 rebates 


5    “Spread pricing” is a practice whereby a PBM negotiates a price with pharmacies 
for a particular prescription drug that is lower than the price the PBM charges the plan for 
that drug, then retains the difference as profit.  ECF No. 1 ¶ 62.  For example, if a PBM 
negotiates a price of $10 for a participant’s prescription with the pharmacy, it may (if its 
they negotiate with pharmacies, administrative fees charged to the plans they serve, and 
ownership of their own pharmacies; and (2) “pass-through” PBMs that generate profit 

through  charging  administrative  fees  alone.    

  ¶¶ 54–55.   According  to  Plaintiffs, 
traditional PBMs are incentivized, to some degree, to charge the highest price to which a 
plan’s administrators will agree for prescription drugs, regardless of the price pharmacies 
charge the PBM for the same drugs.  

.  Plaintiffs assert that traditional PBMs that 
own their own pharmacies also may be able to represent to plans that they are not engaging 
in  spread  pricing  which,  while  technically  true,  could  be  misleading  since  they  are 

effectively negotiating with themselves for pricing.  See 

.  In other words, a PBM-
owned pharmacy may quote an artificially high price for a certain drug to the PBM, and 
the PBM may then represent that it is charging the same price to the plans it serves—that 
is, with no markup—but the effect is that the plans pay a higher price for the drug, and the 
PBM generates a windfall.  See 

                                        

    Traditional PBMs and plan fiduciaries negotiate the prices that the plan will pay the 
PBM for various prescription drugs.  

.  Given the sheer volume of prescription 
drugs available today, however, it would be impractical for PBMs and plan fiduciaries to 
negotiate pricing for each drug individually, so some PBMs and plan fiduciaries structure 
their agreements to create formularies6 that set prices for groups of drugs by reference to 



agreement with the plan at issue permits) charge the plan $15 for that prescription and 
retain the $5 difference.  See 

                                        
6    A “formulary,” in this context, is a list of prescription drugs that a health plan agrees 
to cover.  See Formulary, Black’s Law Dictionary (12th ed. 2024).         
an external benchmark price.  See 

.  Such benchmarks include the National Average 
Drug Acquisition Cost (“NADAC”), which is generated by the Centers for Medicare and 

Medicaid Services using survey data to determine the average cost to pharmacies to acquire 
certain prescription drugs; and the Average Wholesale Price (“AWP”), which purports to 
do the same thing as NADAC, but which Plaintiffs allege is inaccurate and susceptible to 
industry manipulation.  

 ¶¶ 58–59.                                     
    B.   Wells Fargo’s Agreement with Express Scripts, Inc.              
    Wells Fargo entered an agreement with Express Scripts, Inc. (“ESI”), a traditional 

PBM, to serve as the Plan’s PBM.  

.  ESI, along with CVS Caremark and 
OptumRx, is one of the “Big 3” PBMs.  

.  Wells Fargo did not conduct an open bid 
process before it decided to retain ESI.  

.  Rather, Wells Fargo engaged an 
employee benefit consultant to identify potential PBM candidates for the Plan.  See 

.  The agreement between Wells Fargo and ESI is not publicly available, but ESI’s 

standard  contract  with  other  companies  and  plans  typically  spells  out  various  terms 
regarding  prescription  drug  pricing, formulary management,  pharmacy  networks,  and 
administrative services.  

.  ESI’s standard contract also makes clear that plan 
sponsors and fiduciaries like Wells Fargo, not ESI, have final authority over decisions 
relating to plan management and assets.  

.7                      




7    Wells Fargo does not dispute the substance of Plaintiffs’ allegations regarding the 
details of its agreement with ESI.                                        
    The Plan’s formulary includes a list of approximately 300 generic drugs that are 
designated as “preferred alternatives,” meaning participants are encouraged to use those 

generic versions rather than the brand-name versions.  See 

.  The prices ESI 
negotiated with the Plan for those drugs, using AWP as a benchmark—rather than NADAC, 
for example—are substantially higher than the acquisition costs paid by pharmacies.  See 

, 108–09.  A comparison between the pharmacy acquisition cost for the 260 
“preferred alternative” drugs for which NADAC information is available shows that, on 
average, ESI charges the Plan more than twice as much as what pharmacies paid to acquire 

those “preferred alternative” drugs.  

.                          
    The agreement between ESI and the Plan requires Plan participants to acquire so-
called “generic-specialty” drugs exclusively from ESI’s wholly owned pharmacy, Accredo.  

.  For example, abiraterone acetate, a prescription drug used to treat prostate 
cancer, is designated as a “generic-specialty” drug in the Plan’s formulary and has an 

average pharmacy acquisition cost of $82.80 for a ninety-count prescription.  See 

.  
Under the terms of Wells Fargo’s agreement with ESI, however, ESI charges the Plan 
$1,881.00 for the same prescription, more than a 2,100% markup over the acquisition cost.  

  A Plan participant would be required to pay the full cost for that prescription—that is, 
$1,881.00—out of pocket until the participant met his annual deductible.  

.  By 

contrast, an uninsured person filling the same prescription could obtain it from various 
retail pharmacies for between $90.50 and $115.30.  

.             
    The administrative fees ESI charges to the Plan exceed the fees paid by other large 
plan sponsors for seemingly comparable or equivalent services.  

.  In 2019, the 
Plan had about 218,000 participants and paid about $9.2 million in administrative fees to 
ESI, or roughly $42 per participant.  See 

.  Just three years later, despite the 

Plan’s enrollment decreasing to about 189,000 participants in 2022, the Plan paid about 
$25.6 million in administrative fees—about $136 per participant.  

.  Wells Fargo 
acknowledges that the services offered by the Plan were unchanged throughout this period.  
ECF No. 30 at 26 n.11.  For comparison, the Railroad Employees National Health and 
Welfare Plan, for which ESI is the PBM, paid roughly $4.25 million in administrative fees 
for its 214,000 participants in 2022, or about $20 per participant.  ECF No. 1 ¶ 141. 

III.  Plaintiffs Allege Breach of Fiduciary Duty                          
    While they were enrolled in the Plan, Plaintiffs each paid premiums, co-pays, and 
out-of-pocket costs related to prescription drugs they purchased under the Plan’s coverage.  
See 

 ¶¶ 196–203.  Plaintiffs allege that these costs were excessive and that a prudent plan 
fiduciary would have carefully monitored those costs and taken action to keep them 

reasonable.  E.g., 

 ¶¶ 223–24.  According to Plaintiffs, Wells Fargo could or should have 
wielded its substantial bargaining power, derived from the size of the Plan, to negotiate 
better terms, 

 ¶¶ 8–10; conducted a more diligent and thorough search through an open 
bidding process for a PBM which may have resulted in a better deal, 

; steered 
participants toward lower-cost alternatives to Accredo for generic-specialty drugs, see 

; or retained a PBM structured under a different model, like a pass-through PBM, 

, 223–24.                                                            
    Plaintiffs bring claims on behalf of the Plan under 

(a)(2), and 
individually and on behalf of a putative class of Plan participants under both 

(a)(2) and (a)(3).  

 ¶¶ 221–46.  Plaintiffs allege that Wells Fargo’s failure to 
monitor costs or to proactively seek ways to keep them low constitutes a breach of Wells 

Fargo’s fiduciary duties under 

(a).  See 

 ¶¶ 221–32.  Plaintiffs also 
allege that Wells Fargo breached its fiduciary duties by causing the Plan to engage in 
prohibited transactions with ESI, a party in interest under ERISA.  See 

 ¶¶ 233–46.  
Plaintiffs assert that the compensation, including the administrative fees, Wells Fargo 
agreed to pay ESI was unreasonable, resulting in increased premiums and out-of-pocket 
costs to Plaintiffs and other Plan participants and losses to the Plan generally.  

.  Plaintiffs seek various forms of monetary and equitable relief, including recovery of 
losses to the Plan, restitution, disgorgement, surcharge, and permanent injunctive relief 
such as removal of the current Plan fiduciaries, replacement of ESI as the Plan’s PBM, and 
appointment of an independent Plan fiduciary.  

.           
    Wells Fargo denies Plaintiffs’ allegations and moves to dismiss Plaintiffs’ complaint 

in its entirety under Federal Rule of Civil Procedure 12(b)(1) for lack of standing or, in the 
alternative, for failure to state a claim upon which relief may be granted under Rule 
12(b)(6).  ECF No. 28; ECF No. 30 at 1–3.                                 
                           ANALYSIS                                      
I.   Legal Standard                                                       

    Challenges to a plaintiff’s Article III standing implicate the court’s subject matter 
jurisdiction and thus are analyzed under Federal Rule of Civil Procedure 12(b)(1).  Mekhail 
v. N. Mem’l Health Care, 

, 931 (D. Minn. 2024).  A defendant may 
raise either a “facial” or a “factual” challenge to a court’s jurisdiction under Rule 12(b)(1).  
Scott v. UnitedHealth Grp., Inc., 

, 861 (D. Minn. 2021).  On a facial 
challenge “the court restricts itself to the face of the pleadings” and “the non-moving party 

receives the same protections as it would defending against a motion brought under Rule 
12(b)(6).”  Osborn v. United States, 

, 729 n.6 (8th Cir. 1990).  By contrast, 
“[i]n a factual attack, the court considers matters outside the pleadings.”  

 
    Wells Fargo raises a facial challenge to Plaintiffs’ standing, so the Court applies the 
standard for reviewing motions to dismiss under Rule 12(b)(6).8  See Osborn, 

 n.6.  In reviewing such motions, “the court must accept all factual allegations in the 

complaint as true and draw all inferences in the plaintiff’s favor.”  L.H. v. Indep. Sch. Dist., 

 (8th Cir. 2024) (internal quotation marks omitted) (citation omitted).  
However, “the Court will not give the plaintiff the benefit of unreasonable inferences . . . 
and is not bound to accept as true a legal conclusion couched as a factual allegation.”  
Harris v. Medtronic Inc., 

, 877 (D. Minn. 2024) (internal quotation 

marks omitted) (citations omitted).  To overcome a motion to dismiss, a complaint must 
contain “enough facts to state a claim to relief that is plausible on its face.”  Bell Atl. Corp. 
v. Twombly, 

 (2007).  A complaint need not contain “detailed factual 


8    Generally, courts may not consider matters outside the pleadings on a motion to 
dismiss under Rule 12(b)(6).  Enervations, Inc. v. Minn. Mining & Mfg. Co., 

 (8th Cir. 2004).  However, a court may consider documents that are “necessarily 
embraced  by  the  complaint,”  including  documents  “whose  contents  are  alleged  in  a 
complaint and whose authenticity no party questions, but which are not physically attached 
to the pleadings.”  Rossi v. Arch Ins. Co., 

, 1193 (8th Cir. 2023) (citation 
omitted).  Here, the Court need not look further than the pleadings and the Plan documents 
submitted by Wells Fargo, which are “necessarily embraced by the complaint,” and thus 
the Court construes Wells Fargo’s motion as a facial attack on Plaintiffs’ standing.  See 

 
allegations,” but it must contain facts with enough specificity “to raise a right to relief 
above the speculative level.”  

.                                

II.  Article III Standing                                                 
    “Standing to sue under Article III ‘is the threshold question in every federal case 
because it determines the power of the court to entertain the suit.’”  Becker v. N.D. Univ. 
Sys., 

 (8th Cir. 2024) (cleaned up) (quoting Warth v. Seldin, 

 (1975)).  To establish standing, Plaintiffs must plead facts showing they have 
(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the 

defendant, and (3) that is likely to be redressed by a favorable judicial decision.  Arc of 
Iowa v. Reynolds, 

 (8th Cir. 2024) (citing Spokeo, Inc. v. Robins, 

 (2016)).  “Plaintiffs, as the parties invoking federal court jurisdiction, bear the 
burden of establishing these elements.”  

  And “standing is not dispensed in gross,” so 
Plaintiffs “must demonstrate standing for each claim that they press and for each form of 

relief that they seek.”  TransUnion LLC v. Ramirez, 

 (2021). 
    To establish injury in fact, a plaintiff “must show that he or she suffered ‘an invasion 
of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, 
not conjectural or hypothetical.’”  Scott, 540 F. Supp. 3d at 861 (quoting Spokeo, 

).  Whether a plaintiff has shown injury-in-fact “often turns on the nature and source 

of the claim asserted.”  Braden v. Wal-Mart Stores, Inc., 

 (8th Cir. 2009) 
(quoting Warth, 

).  This typically means, practically speaking, that “a 
plaintiff’s standing tracks his cause of action.  That is, the question whether he has a 
cognizable injury sufficient to confer standing is closely bound up with the question of 
whether and how the law will grant him relief.”  

  But “[i]t is crucial . . . not to conflate 
Article III’s requirement of injury in fact with a plaintiff’s potential causes of action, for 

the concepts are not coextensive.”  Turtle Island Foods, SPC v. Thompson, 

 (8th Cir. 2021) (citation omitted).                                   
    Plaintiffs’ theory of standing is fairly straightforward: (1) Plaintiffs individually 
were harmed in the form of high out-of-pocket costs and increased monthly premiums for 
their healthcare coverage, and the Plan was harmed by Wells Fargo causing it to pay 
excessive fees to ESI; (2) both harms are traceable to Wells Fargo’s purported breaches of 

fiduciary duty; and (3) the relief Plaintiffs request will both redress the past harms and 
prevent them from recurring.  See ECF No. 38 at 9.  In challenging Plaintiffs’ pleadings, 
Wells Fargo largely attacks Plaintiffs’ alleged harm as insufficient to confer standing and 
asserts that, to the extent Plaintiffs’ harm qualifies as injury-in-fact, the relief Plaintiffs 
request would not redress it.  See ECF No. 30 at 9–20.                    

    The Court agrees with Plaintiffs—in theory—that the individual harm they allege 
could constitute injury-in-fact for standing purposes.  But on the actual facts Plaintiffs 
allege, these Plaintiffs cannot satisfy Article III’s standing requirements because their 
alleged harm is speculative and, ultimately, not redressable.             
    A.   Breach of Fiduciary Duty Under ERISA                            

    Plaintiffs bring claims under both 

(a)(2) and (a)(3).  Section 
1132(a)(2) provides that a plan participant may bring a civil action “for appropriate relief 
under section 1109 of this title.”  

(a)(2).  Section 1109, in turn, makes 
fiduciaries of an ERISA-governed plan personally liable for breaches of “any of the 
responsibilities, obligations, or duties imposed upon fiduciaries” by ERISA.  

 § 1109(a).  
Among the duties ERISA imposes are the duties to act “solely in the interest of the 

participants and beneficiaries” of the plan, and to act “with the care, skill, prudence, and 
diligence” of a prudent person “acting in a like capacity and familiar with such matters.”  
Id. § 1104(a)(1).  Fiduciaries are also prohibited from causing a plan to engage in certain 
transactions with a “party in interest.”  Id. § 1106(a)–(b).  ERISA fiduciaries found liable 
for breach of fiduciary duty can be required to “make good” any losses to the plan that 
results from a breach of fiduciary duty, 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.”  Id. 
§ 1109(a).  Section 1109 also empowers courts to award “such other equitable or remedial 
relief as the court may deem appropriate, including removal of such fiduciary.”  Id. 
    Section 1132(a)(3), meanwhile, provides that a plan participant may bring a civil 
action to enjoin a plan fiduciary from engaging in any act that violates ERISA or the terms 

of the plan at issue,  or to obtain  other equitable relief redressing such violations or 
enforcing the provisions of ERISA or the terms of the plan.  Id. § 1132(a)(3).  In other 
words, Section 1132(a)(3) “is a ‘catch-all’ provision that ‘act[s] as a safety net, offering 
appropriate  equitable  relief  for  injuries  caused  by  violations  that  [§ 1132]  does  not 
elsewhere adequately remedy.’”  Thole v. U.S. Bank, Nat’l Ass’n (“Thole I”), 

 (8th Cir. 2017) (alterations in original) (quoting Soehnlen v. Fleet Owners Ins. Fund, 

 (6th Cir. 2016)), aff’d sub nom. Thole v. U.S. Bank N.A., 

 
(2020).                                                                   
    Whether claims are brought under Section 1132(a)(2) or (a)(3), “[t]here is no ERISA 
exception to Article III.”  Thole v. U.S. Bank N.A. (“Thole II”), 

 (2020).  

Thus, “the plaintiffs must show actual injury . . . to fall within the class of plaintiffs whom 
Congress has authorized to sue under [ERISA].”  Thole I, 

. 
         1.   Claims Under 

(a)(2) (Counts I and III)     
    Key to the standing analysis is whether Plaintiffs have pleaded a concrete and 
particularized injury that can be remedied by this Court.  In the context of Plaintiffs’ 
allegations here, whether Plaintiffs have established standing requires the Court first to 

determine whether the Plan is a defined-benefit or a defined-contribution plan.  See Thole 
II, 

 (explaining the “decisive importance” that the plan at issue was a 
“defined-benefit” plan, as opposed to a “defined-contribution” plan).  A defined-benefit 
plan is “in the nature of a contract.” Thole II, 590 U.S. at 542–43.  Such plans are typically 
“funded by employer or employee contributions, or a combination of both,” and consist of 

“a general pool of assets rather than individual dedicated accounts.”  Hughes Aircraft Co. 
v. Jacobson, 

 (1999); see Scott, 540 F. Supp. 3d at 862.  “The structure 
of a defined benefit plan reflects the risk borne by the employer.  Given the employer’s 
obligation to make up any shortfall, no plan member has a claim to any particular asset that 
composes a part of the plan’s general asset pool.”  Hughes Aircraft, 

.  

Defined-contribution plans, by contrast, “provide[] for an individual account for each 
participant and for benefits based solely upon the amount contributed to the participant’s 
account, and any income, expenses, gains and losses.”  Scott, 540 F. Supp. 3d at 862 
(quoting 

(34)).                                           
    The key difference, as courts have explained, is that “in a defined-contribution plan, 
such as a 401(k) plan, the [participants’] benefits are typically tied to the value of their 

accounts,” Thole II, 

, while “benefits under a defined-benefit plan ‘do not 
fluctuate with the value of the plan or because of the plan fiduciaries’ good or bad 
investment decisions,” Scott, 540 F. Supp. 3d at 862 (quoting Thole II, 

); 
see also Thole II, 

 (“The plan participants’ benefits are fixed and will not 
change, regardless of how well or poorly the plan is managed.”).  Thus, “a necessary 
predicate to a participant bringing broader claims on behalf of [a defined-benefit] plan is a 

showing of a concrete and particularized injury to the participant herself,” not just the plan, 
and that individual harm must “affect [the participant’s] benefits” to confer standing to sue.  
Scott, 540 F. Supp. 3d at 865; see also Thole II, 590 U.S. at 542–43.     
    The Plan in this case is “closely analogous to the defined-benefit plan at issue in 
Thole [II], as participants are entitled to their contractually defined benefits regardless of 

the value of the [Plan’s] assets.”  Scott, 540 F. Supp. 3d at 864.  In Scott, the plaintiffs were 
participants  in  a  defined-benefit  health  plan  administered  by  UnitedHealth  Group 
(“UHG”).    Id.    The  plaintiffs  challenged  UHG’s  practice  of  “cross-plan  offsetting,” 
whereby UHG used assets of the plaintiffs’ plan to recoup alleged overpayments made by 
a different UHG plan in which the plaintiffs were not participants.  See id. at 859–60.  The 

plaintiffs alleged that this cross-plan offsetting constituted harm to the plan and a breach 
of UHG’s fiduciary duties under ERISA.  Id. at 861.  As to their individual harm, the 
plaintiffs asserted that UHG “misus[ed] their payroll contributions” and “caus[ed] them 
financial injury” when it used the plaintiffs’ plan’s assets to cover another plan’s losses.  Id. 
at  862.    The  court  rejected  the  plaintiffs’  argument,  explaining  that  the  plaintiffs 
relinquished any individual interest in their contributions once those contributions became 

part of the plan’s “general pool of assets,” and that “[a] diminution of those assets [did] not 
affect plaintiffs’ entitlement to benefits in any way and therefore [did] not cause plaintiffs 
any injury.”  Id. (citation omitted).  The court, citing Thole II, ultimately concluded that 
“an injury to a plan that does not affect a plaintiff’s benefits does not give that plaintiff 
standing to sue on behalf of the plan.”  Id. at 865.                      
    Wells Fargo relies on Scott to assert that Plaintiffs do not plead a concrete injury 

sufficient to confer standing.  Specifically, Wells Fargo emphasizes that Plaintiffs have not 
alleged that they did not receive all the benefits to which they were entitled while they were 
members  of  the  Plan.    See  ECF  No.  30  at  10–12.    But  while  instructive,  Scott  is 
distinguishable from the facts and allegations in this case.  In Scott, the plaintiffs’ theory of 
individual harm was premised on their allegations that the plan at issue mismanaged plan 

assets, including the plaintiffs’ contributions, but that argument was expressly foreclosed 
by the Supreme Court’s decision in Thole II.  See Scott, 540 F. Supp. 3d at 862–63.  The 
Scott plaintiffs did not specifically allege that the contributions they were required to pay 
were excessive, as Plaintiffs do here.  And the Scott court was explicit that the plaintiffs in 
that case lacked standing because they had only alleged the defendants’ breaches of 

fiduciary duty “caused injury to the plan—and not injury to [the] plaintiffs themselves.”  
Id. at 861.  Importantly, the Scott court did not reach the issue of whether “additional or 
replacement  contributions”  could  satisfy the  injury-in-fact  requirement  for Article  III 
purposes because the Scott plaintiffs “[did] not allege that they personally had to make” 
such contributions.  See id. at 863 n.4.                                  

    Plaintiffs here avoid that pitfall—at least to some extent.  They assert that the 
contributions and out-of-pocket costs they were required to pay under the Plan’s terms were 
excessively high given Wells Fargo’s alleged breaches of fiduciary duty.  See, e.g., ECF 
No. 1 ¶ 208.  Unlike the Scott plaintiffs, Plaintiffs here do not premise their theory of 
individual harm solely on Wells Fargo’s purported misuse of participant contributions after 
Plaintiffs relinquished any legal interest in them.  And the hypothetical “additional or 

replacement contributions” discussed in Scott are analogous to the excessive contributions 
Plaintiffs allege here.  See id. (“[Plaintiffs] paid more in premiums than they would have 
paid absent [Wells Fargo’s] fiduciary breaches.”).                        
    A more recent Third Circuit case on which Plaintiffs rely, Knudsen v. MetLife Group, 
Inc., provides a closer analogy.  

 (3d Cir. 2024).  There, the plaintiffs were 

participants in an employee-sponsored defined-benefit health plan that retained a PBM—
coincidentally, ESI—to manage its prescription-drug benefits.  

 at 573–74.  As part of 
that agreement, ESI negotiated volume discounts and rebates with drug manufacturers, and 
under the plan’s terms, MetLife was to apply those rebates toward plan expenses.  

.  The plaintiffs alleged that MetLife directed the rebates to itself instead and that 

they would have received “multiple benefits,” including lower contributions and out-of-
pocket costs, had MetLife applied the rebates to plan expenses.  

 at 574–75.  Citing Thole 
II, MetLife argued, and the district court agreed, that “a beneficiary of an ERISA regulated 
defined-benefit plan has no injury unless the plan participants plead that they did not 
receive promised benefits . . . or that there is a substantial likelihood that the plan will 
default.”  

.                                                    

    On  appeal,  the  Knudsen  plaintiffs  convincingly  distinguished  the  employee-
sponsored health plan in their case with the pension plan at issue in Thole II: 
    [Plaintiffs] point out that benefits in pension plans accrue over years, and 
    once earned, the benefits, i.e., pension payments, are fixed and paid at regular 
    intervals.  In contrast, participants in a self-funded health plan pay for their 
    benefits through payroll deductions in the form of premiums, and the plan 
    sponsor can annually change both the amount of the premium (and other out-
    of-pocket costs) and the benefits to which a participant is entitled. 

  The Third Circuit agreed with the plaintiffs as a “purely theoretical proposition”: 
    [W]e decline to hold that Thole [II] . . . require[s] dismissal, under Article III, 
    whenever a participant in a self-funded healthcare plan brings an ERISA suit 
    alleging that mismanagement of plan assets increased his/her out-of-pocket 
    expenses.  While MetLife is correct that sponsors of self-funded health 
    insurance plans, like pension plans, bear all the risk of distributing benefits 
    to beneficiaries, we cannot ignore a more fundamental tenet of injury-in-fact: 
    financial harm, even if only a few pennies, is a concrete, non-speculative 
    injury.  A contrary conclusion, would mean that MetLife could charge Plan 
    participants thousands of dollars more in premiums than is allowed under 
    Plan  documents,  resulting  in  potential  ERISA  violations,  and  Plan 
    participants  would  have  no  judicial  recourse  to  seek  return  of  their 
    overpayments.  Thole [II] . . . command[s] no such result, and in a different 
    case, a plaintiff may well establish such a financial injury sufficient to satisfy 
    Article III.                                                         

 at 579–80 (citations omitted).  Still, despite its theoretical agreement with the plaintiffs’ 
argument, the Third Circuit concluded that the plaintiffs had not alleged concrete financial 
harm because “it is speculative that MetLife’s alleged misappropriation of drug rebate 
money resulted in Plaintiffs paying more for their health insurance or had any effect at all.”  

.                                                               
    The  Court  agrees  with  the  Third  Circuit’s  “purely  theoretical  proposition”  in 
Knudsen.  Thole II controls this case, as it controlled in Scott, 540 F. Supp. 3d at 862.  But 

the Court does not read Thole II to hold, as a matter of law, that a plaintiff suing a fiduciary 
of an ERISA-governed defined-benefit health plan cannot ever establish standing on a 
theory  of  harm  premised  on  excessive  out-of-pocket  costs.   As  the  Knudsen  court 
explained, such a conclusion would lead to absurd results where fiduciaries of defined-
benefit plans could flagrantly violate ERISA, up to and including plainly breaching the 
terms of the plans they serve, while effectively enjoying immunity from any liability so 

long as participants receive the benefits to which they are entitled.  Such an outcome would 
frustrate ERISA’s core purpose: to “protect contractually defined benefits.”  US Airways, 
Inc. v. McCutchen, 

 (2013) (citation omitted); see also, e.g., Boggs v. 
Boggs, 

 (1997) (“The principal object of [ERISA] is to protect plan 
participants  and  beneficiaries.”).   And  more  broadly,  it  would  undermine  the  well-

established principle that “[f]or standing purposes, a loss of even a small amount of money 
is ordinarily an ‘injury.’”  Demarais v. Gurstel Chargo, P.A., 

 (8th Cir. 
2017) (quoting Czyzewski v. Jevic Holding Corp., 

 (2017)); cf. Thole II, 

 (“There is no ERISA exception to Article III.”).          
    Unfortunately for Plaintiffs, that is not the end of this Court’s agreement with the 

Knudsen  court,  and  the  Third  Circuit’s  theoretical  proposition  runs  aground  when 
confronted with the facts alleged here, just as it did there.  The underlying argument 
Plaintiffs advance, while different in the specifics, is essentially the same as in Knudsen: 
had Wells Fargo more closely monitored the Plan’s prescription drug costs and negotiated 
a better deal with ESI, replaced ESI with a different PBM,9 or adopted a different model 
altogether, the Plan would have paid less in administrative fees and other compensation to 

ESI, which would have resulted in lower participant contributions and out-of-pocket costs.  
Plaintiffs’ theory appears tempting at first blush, but it withers upon closer scrutiny. 
    To begin, the connection between what Plan participants were required to pay in 
contributions and out-of-pocket costs, and the administrative fees the Plan was required to 
pay ESI, is tenuous at best.  Of critical importance here is that the Plan vests Wells Fargo 
with “sole discretion” to set participant contribution rates.  ECF No. 31-3 at 9; see also 

ECF No. 31-2 at 22.  The Plan’s terms are clear that participant contribution amounts may 
be affected by several factors having nothing to do with prescription drug benefits, like 


9    On this point, the Court struggles to see how Wells Fargo selecting ESI as the Plan’s 
PBM could form a basis for a claim of breach of fiduciary duty under ERISA on the facts 
alleged here.  Plaintiffs themselves acknowledge that ESI is one of the “Big 3” PBMs.  See 
ECF No. 1 ¶ 86.  Even if Wells Fargo had conducted an “open RFP process,” as Plaintiffs 
insist it should have, id. ¶ 82, it appears quite plausible that Wells Fargo still would have 
selected ESI—as many other companies evidently have, see id. ¶ 86—leaving Plaintiffs in 
precisely the same situation.  Further, Plaintiffs do not offer any meaningful or relevant 
comparison between ESI and the other two of the “Big 3” PBMs—CVS Caremark and 
OptumRx.  See id.  Plaintiffs allege that other large companies generally “use the specialty 
carve-out model for their prescription-drug plans,” which purportedly “offer[s] substantial 
savings to plans and their participants,” and cite two specific companies who implemented 
such carve-outs in their agreements with CVS Caremark and OptumRx.  Id. ¶ 90.  But these 
allegations, even accepted as true, are missing critical information.  Plaintiffs do not allege 
facts regarding the relative size and scope of those companies’ plans or explain how much 
those companies’ plans saved by implementing those carve-outs.  Indeed, Plaintiffs do not 
clearly  or  specifically  allege  that  the  carve-outs  reduced  those  plan  participants’ 
contributions or out-of-pocket costs at all.  Nor do Plaintiffs offer specific facts relating to 
why those companies chose to implement carve-outs.  Ultimately, Plaintiffs’ allegation that 
such a carve-out in Wells Fargo’s agreement with ESI necessarily would have resulted in 
lower contributions and out-of-pocket costs is speculative and conclusory. 
whether a participant uses tobacco, whether a participant obtains coverage for her spouse 
or children in addition to herself, and a participant’s “compensation category.”  ECF 

No. 31-3 at 9.  And notwithstanding that Wells Fargo supplied the bulk of Plan funding 
during the relevant period, see ECF No. 30 at 4 n.1, the Plan authorizes Wells Fargo to 
require participants to fund all Plan expenses, not just expenses related to their own 
individual  benefits.    See  ECF  No.  31-2  at  22  (emphasis  added)  (providing  that 
“[p]articipants shall be responsible for payment of applicable premiums and contributions 
to the Plan,” but that “[Wells Fargo] may pay such contributions to the Plan”); ECF No. 

31-2 at 22 (emphasis added) (“All fees and expenses incurred in connection with the 
operation and administration of the Plan may be paid out of the Trust or any other Plan 
asset . . . .”).                                                          
    Taken together, it is speculative that the allegedly excessive fees the Plan paid to 
ESI “had any effect at all” on Plaintiffs’ contribution rates and out-of-pocket costs for 

prescriptions.  Knudsen, 

.  And Plaintiffs’ attempts to establish a direct 
connection between their increased costs and the increases in administrative fees paid by 
the Plan to ESI are unconvincing. For example, Plaintiffs offer comparisons between the 
purchase  prices  for  certain  prescription  drugs  under  the  Plan  vis-à-vis  the  prices  an 
uninsured  person  would  pay  at  retail  pharmacies  for  the  same  prescriptions  or  the 

acquisition costs paid by the pharmacies to obtain those drugs.  See ECF No. 1 ¶¶ 114–31.  
But as Wells Fargo notes, those comparisons relate to only 260 of the drugs in the Plan’s 
formulary,  a  relatively  narrow  subset  of  the  “thousands”  of  drugs  in  the  Plan’s  full 
formulary.  ECF No. 30 at 7.  And a Plan participant is only responsible for the full out-of-
pocket costs for prescription drugs—whether “preferred alternative,” “generic-specialty,” 
or otherwise—until the participant meets their annual deductible, after which the Plan 

covers most of the costs for that participant’s prescription drugs for the remainder of the 
year.  See ECF No. 1 ¶ 33.  Plaintiffs’ selective allegations regarding the markups on a 
subset of prescription drugs in the Plan’s formulary, ECF No. 1 ¶¶ 108–31, which itself 
represents only a subset of the total benefits whose costs Plan participants’ contributions 
may be used to cover, ECF No. 31-2 at 22, are not sufficient to establish a causal connection 
between Plaintiffs’ increased costs and ESI’s administrative fees.  There are simply too 

many variables in how Plan participants’ contribution rates are calculated to make the 
inferential leaps necessary to elevate Plaintiffs’ allegations from merely speculative to 
plausible.  See Harris, 729 F. Supp. 3d at 877.                           
    Knudsen is instructive on this point as well.  There, the plaintiffs asserted they would 
have received “multiple benefits” had the defendant not breached its fiduciary duties: 

    First, it may have been consistent with its fiduciary duties for [MetLife] to 
    reduce ongoing contributions on account of the rebates collected by the Plan.  
    Second,  [MetLife]  may  have . . .  reduced  co-pays  and  co-insurance  for 
    pharmaceutical benefits.  Third, [MetLife] may have distributed rebates to 
    participants in proportion to their contributions to the Plan.       
Knudsen, 

 (alterations in original).  The Third Circuit was not convinced, 
reasoning that “[t]hese allegations readily permit an inference that even if MetLife had not 
committed  ERISA  violations,  it  may  not  have  taken  any  of  these  listed  actions  and 
Plaintiffs’ out-of-pocket costs would have still increased.”  

         
    Such  is  the  case  here.    Plaintiffs  attempt  to  avoid  Knudsen’s  conclusion  by 
substituting “may” with “would.”  For instance, Plaintiffs allege that “if [Wells Fargo] 
stopped causing the Plan to overspend on prescription drugs and related fees by millions 
of dollars each year[,] employee contributions would be lower as well, in order to maintain 

the same 75-25 split between employer and employee contributions to which [Wells Fargo 
has] demonstrated [its] commitment.”  ECF No. 1 ¶ 207 (emphasis added); see ECF No. 38 
at 12–13.  But this argument assumes that Wells Fargo would maintain the 75-25 employer-
employee contribution ratio, and nothing in the Plan requires Wells Fargo to do so.  See 
ECF No. 31-3 at 9; ECF No. 31-2 at 22.  Plaintiffs’ argument also fundamentally misses 
the point: if Plaintiffs prevailed in this case and received every bit of the relief they request, 

see 

 ¶¶ 249–57, Wells Fargo could still increase Plan participants’ contribution amounts 
under the Plan’s terms without any violation of ERISA having occurred.  Merely changing 
“may” to “would” is a semantic sleight of hand that does not make the proposition any 
more certain or its conclusion any less speculative.10  See Horvath v. Keystone Health Plan 
E., Inc., 

, 457 (3d Cir. 2003) (concluding that whether plan savings would 

have passed to plan participants was “too speculative to serve as the basis for a claim of 
individual loss”).                                                        
    Plaintiffs also seem to suggest this Court could alter the terms of the Plan to 
expressly require Wells Fargo to reduce (or even maintain) participants’ contribution 
amounts, but the Court is not convinced.  The Court is unaware of any mechanism by which 



10   In fact, Knudsen characterized the plaintiffs’ allegations in exactly the way Plaintiffs 
here framed their allegations: “According to Plaintiffs, they would have received ‘multiple 
benefits’ if MetLife had not misallocated drug rebates[.]”  Knudsen, 

 
(emphasis added).                                                         
it could force Wells Fargo to reduce participant contribution rates.  Nor have Plaintiffs 
identified one.11  Whether “surcharge, restitution, or other make-whole equitable relief,” 

“[r]emoving the Plan’s fiduciary” and “appointing an independent fiduciary,” “[r]emoving 
and replacing the Plan’s PBM and/or requiring a search for [an] alternative PBM,” or 
injunctive relief, ECF No. 1 ¶¶ 251–54, Plaintiffs’ theory of redressability stumbles on the 
same obstacle: Wells Fargo’s “sole discretion” to set participant contribution rates.  ECF 
No.  31-3  at  9.    Simply  put,  while  Plaintiffs’  requested  relief  could  result  in  lower 
contribution  rates  and  out-of-pocket  costs,  there  is  no  guarantee  that  it  would,  and 

“pleadings  must  be  something  more  than  an  ingenious  academic  exercise  in  the 
conceivable” to meet the standing threshold.  United States v. Students Challenging Regul. 
Agency Procs., 

 (1973).  Plaintiffs’ theory is plainly rooted in speculation 
and conjecture, and “[s]uch pleadings are not sufficient to support Article III standing.”  
Knudsen, 

.                                                

    While compelling and detailed, Plaintiffs’ allegations are simply too speculative to 
show concrete individual harm, too tenuous to show causation, and too conjectural to show 


11   Reformation, which Plaintiffs do not request, would ostensibly fit the bill, and it is 
an available remedy under Section 1132(a)(3).  Powell v. Minn. Life Ins. Co., 

 (8th Cir. 2023).  Reformation is only appropriate, however, in instances of mistake or 
fraud, neither of which Plaintiffs allege here.  See, e.g., Ibson v. United Healthcare Servs., 
Inc., 

 (8th Cir. 2017) (alteration in original) (quoting Silva v. Metro. Life 
Ins. Co., 

 (8th Cir. 2014)) (“The ‘reformation remedy available under 
§ 1132(a)(3) . . . allow[s] courts to reform contracts that failed to express the agreement of 
the parties.’”); CIGNA Corp. v. Amara, 

 (2011) (“The power to reform 
contracts (as contrasted with the power to enforce contracts as written) is a traditional 
power of an equity court . . . and was used to prevent fraud.”).          
redressability.  Accordingly, Plaintiffs lack Article III standing to sue under 

(a)(2).                                                             

         2.   Claims Under 

(a)(3) (Counts II and IV)     
    As  even  Wells  Fargo  concedes,  Plaintiffs’  individual  claims  under  Section 
1132(a)(3) “do not suffer from” all the same issues as their representative claims on behalf 
of the Plan under Section 1132(a)(2).12  ECF No. 30 at 14.  Nevertheless, Plaintiffs cannot 
establish standing under Section 1132(a)(3) both because they have not alleged concrete 
individual harm and because these Plaintiffs “have no concrete stake in the lawsuit” 

regarding any prospective injunctive relief.  Thole II, 590 U.S. 541–42.  
    Section 1132(a)(3) “allows an individual plan participant to seek equitable remedies 
for breach of fiduciary duty in his [or her] individual capacity.”  Knieriem v. Grp. Health 
Plan, Inc., 

 (8th Cir. 2006).  Recovery under Section 1132(a)(3), 
however, is limited to traditional equitable remedies “such as injunctive, restitutionary, or 

mandamus relief.”  

 (quoting Kerr v. Charles F. Vatterott & Co., 

 (8th 
Cir. 1999)).  Importantly, Section 1132(a)(3) “does not . . . authorize appropriate equitable 
relief at large, but only appropriate equitable relief for the purpose of redressing any 
violations or . . . enforcing any provisions of ERISA or an ERISA plan.”  Peacock v. 
Thomas, 

 (1996) (cleaned up) (citation omitted).         


12   Wells Fargo largely focuses its argument on the distinction between “fiduciary” and 
“settlor” acts, contending that the conduct Plaintiffs challenge—“setting premiums, co-
pays, and deductibles”—are settlor functions that are not subject to review under ERISA.  
ECF No. 30 at 15–17.  Wells Fargo does not “explain how this analysis goes to the Court’s 
standing inquiry.”  Sigetich v. Kroger Co., No. 1:21-cv-697, 

, at *8 (S.D. 
Ohio Mar. 9, 2023).                                                       
    Plaintiffs must show “‘actual or imminent injury to the Plan itself’ that caused injury 
to the plaintiffs’ interests in the Plan” to establish standing under Section 1132(a)(3).  Thole 

I, 

 (quoting Soehnlen, 

).  The Supreme Court affirmed that 
approach in Thole II, reasoning that the plaintiffs there lacked standing because they had 
received all benefits to which they were entitled, and “the outcome of [the] suit would not 
affect their future benefit[s].”  Thole II, 

.  Thole II instructs that ERISA 
plaintiffs must “have [a] concrete stake” in the outcome of the suit, as Article III requires 
of plaintiffs in all cases.  

; see also 

 (“There is no ERISA exception to 

Article III.”).                                                           
    Again, Thole II controls here, and Plaintiffs clearly do not have a stake in any of the 
prospective equitable relief they request.  They are no longer participants in the Plan, see 
ECF No. 1 ¶¶ 14–17, so any changes to the Plan’s structure or administration going 
forward—like replacing ESI as the Plan’s PBM or removing the Plan’s fiduciaries and 

appointing an independent fiduciary, 

 ¶¶ 252–53—will not personally affect them in any 
way, much less redress the individual harm they allege.  See e.g., DeFazio v. Hollister Emp. 
Share Ownership Tr., 

 (9th Cir. 2015) (“The Plan Participants, who 
have already cashed out of the Plan, lack Article III standing as to redressability vis-à-vis 
their claims for prospective equitable relief.”); Trauernicht v. Genworth Fin. Inc., No. 3:22-

cv-532,  

,  at  *6  (E.D.  Va.  Sept.  13,  2023)  (holding  former  plan 
participants lacked standing because “any changes to the process in the future would not 
affect them, making their claim for prospective injunctive relief non-redressable”); Peters 
v. Aetna, Inc., No. 1:15-cv-109-MR, 

, at *7 (W.D.N.C. June 5, 2023) 
(“[T]he Plaintiff’s lack of continued participation in the Mars Plan is fatal to her standing 
to assert claims for prospective injunctive relief.”); Savage v. Sutherland Glob. Servs., Inc., 

No. 6:19-cv-6840 EAW, 

, at *6 (W.D.N.Y. Aug. 28, 2024) (holding 
“Plaintiffs lack Article III standing to seek prospective relief” because “none of Plaintiffs 
are still enrolled in the Plan” and “thus are not in danger of any future injury from the 
selection of ADP as recordkeeper”).                                       
    As it relates to Plaintiffs’ request for non-injunctive (that is, retrospective) equitable 
relief, Plaintiffs do not dispute that they received all the benefits to which they were entitled 

when they were participants in the Plan, even if they believe they had to pay more for those 
benefits than they should have.  See, e.g., ECF No. 1 ¶¶ 196–203.  And as already discussed, 
Plaintiffs’ allegations of individual harm are speculative at best and insufficient to establish 
Article  III  standing.    Other  courts  have  reached  the  same  conclusion  in  similar 
circumstances—even before Thole II was decided.  See Cox v. Blue Cross Blue Shield of 

Mich., 

 (E.D. Mich. 2016) (finding no standing to seek “restitution, 
disgorgement, [and] surcharge” under Section 1132(a)(3) because “[a]t most, it is Plaintiffs’ 
healthcare plans that suffered concrete and particularized injuries when they paid BCBSM 
the hidden fees” which was “not concrete or particularized harm to Plaintiffs.”).  Further, 
much of the retrospective equitable relief Plaintiffs request bears the characteristics of 

monetary or compensatory relief.  See ECF No. 1 ¶¶ 251, 254 (requesting “make-whole” 
and “monetary” relief).  But such relief is not available under Section 1132(a)(3).  See, e.g., 
Kerr, 

 (“[S]ection 1132(a)(3) recovery . . . does not extend to compensatory 
damages.”); Mertens v. Hewitt Assocs., 

 (1993) (holding plaintiffs could 
not seek relief under Section 1132(a)(3) because their claims sought “monetary relief for 
all losses their plan sustained as a result of the alleged breach of fiduciary duties,” which 

is the “classic form of legal relief”); Paulsen v. CNF Inc., 

 (9th Cir. 
2009) (finding no standing to sue under Section 1132(a)(3) where plaintiffs requested to be 
made “whole in the amounts by which their pension benefits have been reduced as a result 
of [fiduciary] breaches”).                                                
    Plaintiffs have no stake in the outcome of this case as it relates to the prospective 
equitable relief they seek.  Nor can they show a concrete and particularized injury sufficient 

to establish standing to seek retrospective equitable relief, and some of the retrospective 
equitable relief they request is “foreclosed by Supreme Court precedent.”  Paulsen, 

; see also Mertens, 

.  Consequently, Plaintiffs lack standing to 
pursue their claims under 

(a)(3).13                       
                         CONCLUSION                                      

    The Court is not unsympathetic to Plaintiffs’ concerns.  Prescription drug costs are 
high—even for those who are insured, as forcefully set forth in Plaintiffs’ complaint.  
Plaintiffs’ frustration is understandable, and this Court will not tell them otherwise. 
    But however sympathetic the Court may be, it cannot ignore the law.  Under ERISA, 
as interpreted in decisions that bind this Court, Plaintiffs’ allegations are insufficient to 

establish Article III standing.   As a result, Plaintiffs’ complaint must be dismissed. 

13   Because the Court dismisses Plaintiffs’ complaint for lack of standing, the Court 
need not address Wells Fargo’s alternative basis for dismissal under Rule 12(b)(6).  See 
ECF No. 30 at 20–31.                                                      

    Based on the foregoing, and on all of the files, records, and proceedings in the 

above-captioned matter, IT IS HEREBY ORDERED that:                        
    1.   Wells Fargo’s Motion to Dismiss (ECF No. 28) is GRANTED; and    
    2.   Plaintiffs’  Complaint  (ECF  No.  1)  is  DISMISSED  WITHOUT   
PREJUDICE.                                                                
    LET JUDGMENT BE ENTERED ACCORDINGLY.                                 


Dated: March 24, 2025           s/Laura M. Provinzino                    
                                Laura M. Provinzino                      
                                United States District Judge             

                UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                


SERGIO NAVARRO, THERESA            Case No. 24-cv-3043 (LMP/DTS)         
GAMAGE, DAYLE BULLA, and                                                 
JANE KINSELLA, on their own                                              
behalf, and on behalf of all others                                      
similarly situated, and on behalf of the                                 
Wells Fargo & Company Health Plan                                        
and its component plans,                                                 

                    Plaintiffs,  ORDER GRANTING DEFENDANT’S              
                                      MOTION TO DISMISS                  
v.                                                                       

WELLS FARGO & COMPANY,1                                                  
MICHAEL BRANCA, MARK                                                     
HICKMAN, DREW WINELAND,                                                  
DAVID GALLOREESE, BEI LING,                                              
and DOES 1–20,                                                           

                    Defendants.                                          


Kai  H.  Richter  and  Eleanor  E.  Frisch,  Cohen  Milstein  Sellers  &  Toll,  PLLC, 
Minneapolis, MN; Michelle C. Yau and Allison Pienta, Cohen Milstein Sellers & Toll, 
PLLC, Washington, DC; Michael B. Eisenkraft, Cohen Milstein Sellers & Toll, PLLC, 
New York, NY; Jamie Crooks and Michael D. Lieberman, Fairmark Partners, LLP, 
Washington, DC; and Daniel E. Gustafson and Amanda M. Williams, Gustafson Gluek 
PLLC, Minneapolis, MN, for Plaintiffs.                                    
Russell L. Hirschhorn, Joseph E. Clark, and Sydney L. Juliano, Proskauer Rose LLP, 
New York, NY; and Jeffrey P. Justman, and Kiera Murphy, Faegre Drinker Biddle & 
Reath LLP, Minneapolis, MN, for Defendants.                               

1    Wells Fargo & Company agreed to assume responsibility for “all acts or omissions 
relating to the allegations and claims in this action” and for “any judgment entered in this 
action,” and Plaintiffs agreed to dismiss all claims asserted against all defendants without 
prejudice except Wells Fargo.  ECF No. 27 ¶¶ 2–4.  Accordingly, the Court herein refers to 
Wells Fargo & Company as the Defendant in this case.                      
    Plaintiffs  Sergio  Navarro,  Theresa  Gamage,  Dayle  Bulla,  and  Jane  Kinsella 
(collectively, “Plaintiffs”) are former employees of Defendant Wells Fargo & Company 

(“Wells Fargo”), and former participants in the Wells Fargo & Company Health Plan (the 
“Plan”).  Plaintiffs allege that Wells Fargo mismanaged the Plan’s employee prescription 
drug  benefits  program,  resulting  in  Plaintiffs  and  other  Plan  participants  paying 
substantially more in premiums and out-of-pocket costs for certain prescription drug 
benefits than they would have absent Wells Fargo’s mismanagement.  Plaintiffs contend 
this  mismanagement  constitutes  a  breach  of  Wells  Fargo’s  fiduciary  duties  to  Plan 

participants in violation of the Employee Retirement Income Security Act (“ERISA”).  
Wells Fargo moves to dismiss Plaintiffs’ complaint for lack of Article III standing or, 
alternatively, for failure to state a claim upon which relief can be granted.  Because 
Plaintiffs are unable to show concrete individual harm, causation, and redressability, the 
Court finds that Plaintiffs lack standing to bring their claims.          

                    FACTUAL BACKGROUND2                                  
I.   The Plan                                                             
    The Plan is an employee welfare benefit plan3 established to provide medical 
benefits to Wells Fargo employees who choose to enroll.  See ECF No. 1 ¶ 20.  Wells Fargo, 


2    For purposes of assessing Wells Fargo’s motion to dismiss, the Court must accept 
the factual allegations in Plaintiffs’ complaint as true.  L.H. v. Indep. Sch. Dist., 

 (8th Cir. 2024).  As such, the Factual Background here is drawn largely from the 
complaint.                                                                
3    As relevant here, an “employee welfare benefit plan” is “any plan, fund, or program 
which was . . . established or maintained by an employer . . . for the purpose of providing 
as the Plan sponsor and a fiduciary of the Plan, is responsible for appointing and removing 
the individual administrators of the Plan, among whom are several Wells Fargo executives.  

 ¶ 22–23.  As such, Wells Fargo retains decision-making authority with respect to the 
management of the Plan.  

  Plaintiffs are each former employees of Wells Fargo and 
former participants4 in the Plan.  

 ¶¶ 14–17.                          
    To cover the expenses incurred in administering benefits to Plan participants, Wells 
Fargo established the Wells Fargo & Company Employee Benefit Trust (the “Trust”).  Id. 
¶ 21.  The Trust is funded by a combination of employer and employee contributions, along 

with unspecified amounts of investment income.  Id.  From 2018 to 2022, Wells Fargo 
consistently required participants to contribute, in the form of premiums, approximately 
25% of the Plan’s costs annually, with Wells Fargo contributing the remaining 75%.  Id. 
¶ 206.  Wells Fargo nevertheless retains “sole discretion” to set and modify participant 
contribution amounts.  ECF No. 31-3 at 9; see also ECF No. 31-2 at 22 (“The Plan Sponsor 

may establish different contribution rates for different classes of Participants . . . for any 
Benefit Option.”).  The Trust’s funds, regardless of their source, are considered assets of 
the Plan.  ECF No. 1 ¶ 21.                                                



for  its  participants  or  their  beneficiaries,  through  the  purchase  of  insurance  or 
otherwise . . . medical, surgical, or hospital care or benefits, or benefits in the event of 
sickness, accident, disability, death or unemployment.”  

(1). 
4    A “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.”  

(7).                 
II.  The Plan’s Prescription Drug Program                                 
    A.   Pharmacy Benefit Managers Generally                             

    Many employer-sponsored prescription drug plans, including the Plan, retain third-
party service providers called pharmacy benefit managers (“PBMs”) to administer the 
plans’ prescription drug benefits.  

.  PBMs handle the day-to-day administrative 
tasks for a plan’s prescription drug program, like processing claims, and typically offer 
other  services  like  negotiating  with  pharmacies  to  establish  coverage  networks  and 
determining which prescription drugs a plan will cover (and the extent to which they are 

covered).  

 ¶¶ 52–53.  Generally, when a plan participant is prescribed a drug and fills 
that  prescription  at  a  pharmacy,  the  participant  pays  the  portion  for  which  she  is 
responsible—like  her  co-pay  or  deductible—and  the  PBM  pays  the  pharmacy  the 
remaining balance and is later reimbursed by the Plan.  

.  The overall price of the 
prescription drug is negotiated by the PBM and the plan fiduciaries, 

, while the 

portion for which the participant is responsible is typically dictated by the terms of the plan, 
see, e.g., 

.                                                      
    PBMs are typically for-profit entities, and the largest PBMs tend to be publicly 
traded  companies.    

.   As  such,  two  dominant  PBM  models  have  emerged: 
(1) “traditional” PBMs, which generate profit through some mix of spread pricing,5 rebates 


5    “Spread pricing” is a practice whereby a PBM negotiates a price with pharmacies 
for a particular prescription drug that is lower than the price the PBM charges the plan for 
that drug, then retains the difference as profit.  ECF No. 1 ¶ 62.  For example, if a PBM 
negotiates a price of $10 for a participant’s prescription with the pharmacy, it may (if its 
they negotiate with pharmacies, administrative fees charged to the plans they serve, and 
ownership of their own pharmacies; and (2) “pass-through” PBMs that generate profit 

through  charging  administrative  fees  alone.    

  ¶¶ 54–55.   According  to  Plaintiffs, 
traditional PBMs are incentivized, to some degree, to charge the highest price to which a 
plan’s administrators will agree for prescription drugs, regardless of the price pharmacies 
charge the PBM for the same drugs.  

.  Plaintiffs assert that traditional PBMs that 
own their own pharmacies also may be able to represent to plans that they are not engaging 
in  spread  pricing  which,  while  technically  true,  could  be  misleading  since  they  are 

effectively negotiating with themselves for pricing.  See 

.  In other words, a PBM-
owned pharmacy may quote an artificially high price for a certain drug to the PBM, and 
the PBM may then represent that it is charging the same price to the plans it serves—that 
is, with no markup—but the effect is that the plans pay a higher price for the drug, and the 
PBM generates a windfall.  See 

                                        

    Traditional PBMs and plan fiduciaries negotiate the prices that the plan will pay the 
PBM for various prescription drugs.  

.  Given the sheer volume of prescription 
drugs available today, however, it would be impractical for PBMs and plan fiduciaries to 
negotiate pricing for each drug individually, so some PBMs and plan fiduciaries structure 
their agreements to create formularies6 that set prices for groups of drugs by reference to 



agreement with the plan at issue permits) charge the plan $15 for that prescription and 
retain the $5 difference.  See 

                                        
6    A “formulary,” in this context, is a list of prescription drugs that a health plan agrees 
to cover.  See Formulary, Black’s Law Dictionary (12th ed. 2024).         
an external benchmark price.  See 

.  Such benchmarks include the National Average 
Drug Acquisition Cost (“NADAC”), which is generated by the Centers for Medicare and 

Medicaid Services using survey data to determine the average cost to pharmacies to acquire 
certain prescription drugs; and the Average Wholesale Price (“AWP”), which purports to 
do the same thing as NADAC, but which Plaintiffs allege is inaccurate and susceptible to 
industry manipulation.  

 ¶¶ 58–59.                                     
    B.   Wells Fargo’s Agreement with Express Scripts, Inc.              
    Wells Fargo entered an agreement with Express Scripts, Inc. (“ESI”), a traditional 

PBM, to serve as the Plan’s PBM.  

.  ESI, along with CVS Caremark and 
OptumRx, is one of the “Big 3” PBMs.  

.  Wells Fargo did not conduct an open bid 
process before it decided to retain ESI.  

.  Rather, Wells Fargo engaged an 
employee benefit consultant to identify potential PBM candidates for the Plan.  See 

.  The agreement between Wells Fargo and ESI is not publicly available, but ESI’s 

standard  contract  with  other  companies  and  plans  typically  spells  out  various  terms 
regarding  prescription  drug  pricing, formulary management,  pharmacy  networks,  and 
administrative services.  

.  ESI’s standard contract also makes clear that plan 
sponsors and fiduciaries like Wells Fargo, not ESI, have final authority over decisions 
relating to plan management and assets.  

.7                      




7    Wells Fargo does not dispute the substance of Plaintiffs’ allegations regarding the 
details of its agreement with ESI.                                        
    The Plan’s formulary includes a list of approximately 300 generic drugs that are 
designated as “preferred alternatives,” meaning participants are encouraged to use those 

generic versions rather than the brand-name versions.  See 

.  The prices ESI 
negotiated with the Plan for those drugs, using AWP as a benchmark—rather than NADAC, 
for example—are substantially higher than the acquisition costs paid by pharmacies.  See 

, 108–09.  A comparison between the pharmacy acquisition cost for the 260 
“preferred alternative” drugs for which NADAC information is available shows that, on 
average, ESI charges the Plan more than twice as much as what pharmacies paid to acquire 

those “preferred alternative” drugs.  

.                          
    The agreement between ESI and the Plan requires Plan participants to acquire so-
called “generic-specialty” drugs exclusively from ESI’s wholly owned pharmacy, Accredo.  

.  For example, abiraterone acetate, a prescription drug used to treat prostate 
cancer, is designated as a “generic-specialty” drug in the Plan’s formulary and has an 

average pharmacy acquisition cost of $82.80 for a ninety-count prescription.  See 

.  
Under the terms of Wells Fargo’s agreement with ESI, however, ESI charges the Plan 
$1,881.00 for the same prescription, more than a 2,100% markup over the acquisition cost.  

  A Plan participant would be required to pay the full cost for that prescription—that is, 
$1,881.00—out of pocket until the participant met his annual deductible.  

.  By 

contrast, an uninsured person filling the same prescription could obtain it from various 
retail pharmacies for between $90.50 and $115.30.  

.             
    The administrative fees ESI charges to the Plan exceed the fees paid by other large 
plan sponsors for seemingly comparable or equivalent services.  

.  In 2019, the 
Plan had about 218,000 participants and paid about $9.2 million in administrative fees to 
ESI, or roughly $42 per participant.  See 

.  Just three years later, despite the 

Plan’s enrollment decreasing to about 189,000 participants in 2022, the Plan paid about 
$25.6 million in administrative fees—about $136 per participant.  

.  Wells Fargo 
acknowledges that the services offered by the Plan were unchanged throughout this period.  
ECF No. 30 at 26 n.11.  For comparison, the Railroad Employees National Health and 
Welfare Plan, for which ESI is the PBM, paid roughly $4.25 million in administrative fees 
for its 214,000 participants in 2022, or about $20 per participant.  ECF No. 1 ¶ 141. 

III.  Plaintiffs Allege Breach of Fiduciary Duty                          
    While they were enrolled in the Plan, Plaintiffs each paid premiums, co-pays, and 
out-of-pocket costs related to prescription drugs they purchased under the Plan’s coverage.  
See 

 ¶¶ 196–203.  Plaintiffs allege that these costs were excessive and that a prudent plan 
fiduciary would have carefully monitored those costs and taken action to keep them 

reasonable.  E.g., 

 ¶¶ 223–24.  According to Plaintiffs, Wells Fargo could or should have 
wielded its substantial bargaining power, derived from the size of the Plan, to negotiate 
better terms, 

 ¶¶ 8–10; conducted a more diligent and thorough search through an open 
bidding process for a PBM which may have resulted in a better deal, 

; steered 
participants toward lower-cost alternatives to Accredo for generic-specialty drugs, see 

; or retained a PBM structured under a different model, like a pass-through PBM, 

, 223–24.                                                            
    Plaintiffs bring claims on behalf of the Plan under 

(a)(2), and 
individually and on behalf of a putative class of Plan participants under both 

(a)(2) and (a)(3).  

 ¶¶ 221–46.  Plaintiffs allege that Wells Fargo’s failure to 
monitor costs or to proactively seek ways to keep them low constitutes a breach of Wells 

Fargo’s fiduciary duties under 

(a).  See 

 ¶¶ 221–32.  Plaintiffs also 
allege that Wells Fargo breached its fiduciary duties by causing the Plan to engage in 
prohibited transactions with ESI, a party in interest under ERISA.  See 

 ¶¶ 233–46.  
Plaintiffs assert that the compensation, including the administrative fees, Wells Fargo 
agreed to pay ESI was unreasonable, resulting in increased premiums and out-of-pocket 
costs to Plaintiffs and other Plan participants and losses to the Plan generally.  

.  Plaintiffs seek various forms of monetary and equitable relief, including recovery of 
losses to the Plan, restitution, disgorgement, surcharge, and permanent injunctive relief 
such as removal of the current Plan fiduciaries, replacement of ESI as the Plan’s PBM, and 
appointment of an independent Plan fiduciary.  

.           
    Wells Fargo denies Plaintiffs’ allegations and moves to dismiss Plaintiffs’ complaint 

in its entirety under Federal Rule of Civil Procedure 12(b)(1) for lack of standing or, in the 
alternative, for failure to state a claim upon which relief may be granted under Rule 
12(b)(6).  ECF No. 28; ECF No. 30 at 1–3.                                 
                           ANALYSIS                                      
I.   Legal Standard                                                       

    Challenges to a plaintiff’s Article III standing implicate the court’s subject matter 
jurisdiction and thus are analyzed under Federal Rule of Civil Procedure 12(b)(1).  Mekhail 
v. N. Mem’l Health Care, 

, 931 (D. Minn. 2024).  A defendant may 
raise either a “facial” or a “factual” challenge to a court’s jurisdiction under Rule 12(b)(1).  
Scott v. UnitedHealth Grp., Inc., 

, 861 (D. Minn. 2021).  On a facial 
challenge “the court restricts itself to the face of the pleadings” and “the non-moving party 

receives the same protections as it would defending against a motion brought under Rule 
12(b)(6).”  Osborn v. United States, 

, 729 n.6 (8th Cir. 1990).  By contrast, 
“[i]n a factual attack, the court considers matters outside the pleadings.”  

 
    Wells Fargo raises a facial challenge to Plaintiffs’ standing, so the Court applies the 
standard for reviewing motions to dismiss under Rule 12(b)(6).8  See Osborn, 

 n.6.  In reviewing such motions, “the court must accept all factual allegations in the 

complaint as true and draw all inferences in the plaintiff’s favor.”  L.H. v. Indep. Sch. Dist., 

 (8th Cir. 2024) (internal quotation marks omitted) (citation omitted).  
However, “the Court will not give the plaintiff the benefit of unreasonable inferences . . . 
and is not bound to accept as true a legal conclusion couched as a factual allegation.”  
Harris v. Medtronic Inc., 

, 877 (D. Minn. 2024) (internal quotation 

marks omitted) (citations omitted).  To overcome a motion to dismiss, a complaint must 
contain “enough facts to state a claim to relief that is plausible on its face.”  Bell Atl. Corp. 
v. Twombly, 

 (2007).  A complaint need not contain “detailed factual 


8    Generally, courts may not consider matters outside the pleadings on a motion to 
dismiss under Rule 12(b)(6).  Enervations, Inc. v. Minn. Mining & Mfg. Co., 

 (8th Cir. 2004).  However, a court may consider documents that are “necessarily 
embraced  by  the  complaint,”  including  documents  “whose  contents  are  alleged  in  a 
complaint and whose authenticity no party questions, but which are not physically attached 
to the pleadings.”  Rossi v. Arch Ins. Co., 

, 1193 (8th Cir. 2023) (citation 
omitted).  Here, the Court need not look further than the pleadings and the Plan documents 
submitted by Wells Fargo, which are “necessarily embraced by the complaint,” and thus 
the Court construes Wells Fargo’s motion as a facial attack on Plaintiffs’ standing.  See 

 
allegations,” but it must contain facts with enough specificity “to raise a right to relief 
above the speculative level.”  

.                                

II.  Article III Standing                                                 
    “Standing to sue under Article III ‘is the threshold question in every federal case 
because it determines the power of the court to entertain the suit.’”  Becker v. N.D. Univ. 
Sys., 

 (8th Cir. 2024) (cleaned up) (quoting Warth v. Seldin, 

 (1975)).  To establish standing, Plaintiffs must plead facts showing they have 
(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the 

defendant, and (3) that is likely to be redressed by a favorable judicial decision.  Arc of 
Iowa v. Reynolds, 

 (8th Cir. 2024) (citing Spokeo, Inc. v. Robins, 

 (2016)).  “Plaintiffs, as the parties invoking federal court jurisdiction, bear the 
burden of establishing these elements.”  

  And “standing is not dispensed in gross,” so 
Plaintiffs “must demonstrate standing for each claim that they press and for each form of 

relief that they seek.”  TransUnion LLC v. Ramirez, 

 (2021). 
    To establish injury in fact, a plaintiff “must show that he or she suffered ‘an invasion 
of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, 
not conjectural or hypothetical.’”  Scott, 540 F. Supp. 3d at 861 (quoting Spokeo, 

).  Whether a plaintiff has shown injury-in-fact “often turns on the nature and source 

of the claim asserted.”  Braden v. Wal-Mart Stores, Inc., 

 (8th Cir. 2009) 
(quoting Warth, 

).  This typically means, practically speaking, that “a 
plaintiff’s standing tracks his cause of action.  That is, the question whether he has a 
cognizable injury sufficient to confer standing is closely bound up with the question of 
whether and how the law will grant him relief.”  

  But “[i]t is crucial . . . not to conflate 
Article III’s requirement of injury in fact with a plaintiff’s potential causes of action, for 

the concepts are not coextensive.”  Turtle Island Foods, SPC v. Thompson, 

 (8th Cir. 2021) (citation omitted).                                   
    Plaintiffs’ theory of standing is fairly straightforward: (1) Plaintiffs individually 
were harmed in the form of high out-of-pocket costs and increased monthly premiums for 
their healthcare coverage, and the Plan was harmed by Wells Fargo causing it to pay 
excessive fees to ESI; (2) both harms are traceable to Wells Fargo’s purported breaches of 

fiduciary duty; and (3) the relief Plaintiffs request will both redress the past harms and 
prevent them from recurring.  See ECF No. 38 at 9.  In challenging Plaintiffs’ pleadings, 
Wells Fargo largely attacks Plaintiffs’ alleged harm as insufficient to confer standing and 
asserts that, to the extent Plaintiffs’ harm qualifies as injury-in-fact, the relief Plaintiffs 
request would not redress it.  See ECF No. 30 at 9–20.                    

    The Court agrees with Plaintiffs—in theory—that the individual harm they allege 
could constitute injury-in-fact for standing purposes.  But on the actual facts Plaintiffs 
allege, these Plaintiffs cannot satisfy Article III’s standing requirements because their 
alleged harm is speculative and, ultimately, not redressable.             
    A.   Breach of Fiduciary Duty Under ERISA                            

    Plaintiffs bring claims under both 

(a)(2) and (a)(3).  Section 
1132(a)(2) provides that a plan participant may bring a civil action “for appropriate relief 
under section 1109 of this title.”  

(a)(2).  Section 1109, in turn, makes 
fiduciaries of an ERISA-governed plan personally liable for breaches of “any of the 
responsibilities, obligations, or duties imposed upon fiduciaries” by ERISA.  

 § 1109(a).  
Among the duties ERISA imposes are the duties to act “solely in the interest of the 

participants and beneficiaries” of the plan, and to act “with the care, skill, prudence, and 
diligence” of a prudent person “acting in a like capacity and familiar with such matters.”  
Id. § 1104(a)(1).  Fiduciaries are also prohibited from causing a plan to engage in certain 
transactions with a “party in interest.”  Id. § 1106(a)–(b).  ERISA fiduciaries found liable 
for breach of fiduciary duty can be required to “make good” any losses to the plan that 
results from a breach of fiduciary duty, 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.”  Id. 
§ 1109(a).  Section 1109 also empowers courts to award “such other equitable or remedial 
relief as the court may deem appropriate, including removal of such fiduciary.”  Id. 
    Section 1132(a)(3), meanwhile, provides that a plan participant may bring a civil 
action to enjoin a plan fiduciary from engaging in any act that violates ERISA or the terms 

of the plan at issue,  or to obtain  other equitable relief redressing such violations or 
enforcing the provisions of ERISA or the terms of the plan.  Id. § 1132(a)(3).  In other 
words, Section 1132(a)(3) “is a ‘catch-all’ provision that ‘act[s] as a safety net, offering 
appropriate  equitable  relief  for  injuries  caused  by  violations  that  [§ 1132]  does  not 
elsewhere adequately remedy.’”  Thole v. U.S. Bank, Nat’l Ass’n (“Thole I”), 

 (8th Cir. 2017) (alterations in original) (quoting Soehnlen v. Fleet Owners Ins. Fund, 

 (6th Cir. 2016)), aff’d sub nom. Thole v. U.S. Bank N.A., 

 
(2020).                                                                   
    Whether claims are brought under Section 1132(a)(2) or (a)(3), “[t]here is no ERISA 
exception to Article III.”  Thole v. U.S. Bank N.A. (“Thole II”), 

 (2020).  

Thus, “the plaintiffs must show actual injury . . . to fall within the class of plaintiffs whom 
Congress has authorized to sue under [ERISA].”  Thole I, 

. 
         1.   Claims Under 

(a)(2) (Counts I and III)     
    Key to the standing analysis is whether Plaintiffs have pleaded a concrete and 
particularized injury that can be remedied by this Court.  In the context of Plaintiffs’ 
allegations here, whether Plaintiffs have established standing requires the Court first to 

determine whether the Plan is a defined-benefit or a defined-contribution plan.  See Thole 
II, 

 (explaining the “decisive importance” that the plan at issue was a 
“defined-benefit” plan, as opposed to a “defined-contribution” plan).  A defined-benefit 
plan is “in the nature of a contract.” Thole II, 590 U.S. at 542–43.  Such plans are typically 
“funded by employer or employee contributions, or a combination of both,” and consist of 

“a general pool of assets rather than individual dedicated accounts.”  Hughes Aircraft Co. 
v. Jacobson, 

 (1999); see Scott, 540 F. Supp. 3d at 862.  “The structure 
of a defined benefit plan reflects the risk borne by the employer.  Given the employer’s 
obligation to make up any shortfall, no plan member has a claim to any particular asset that 
composes a part of the plan’s general asset pool.”  Hughes Aircraft, 

.  

Defined-contribution plans, by contrast, “provide[] for an individual account for each 
participant and for benefits based solely upon the amount contributed to the participant’s 
account, and any income, expenses, gains and losses.”  Scott, 540 F. Supp. 3d at 862 
(quoting 

(34)).                                           
    The key difference, as courts have explained, is that “in a defined-contribution plan, 
such as a 401(k) plan, the [participants’] benefits are typically tied to the value of their 

accounts,” Thole II, 

, while “benefits under a defined-benefit plan ‘do not 
fluctuate with the value of the plan or because of the plan fiduciaries’ good or bad 
investment decisions,” Scott, 540 F. Supp. 3d at 862 (quoting Thole II, 

); 
see also Thole II, 

 (“The plan participants’ benefits are fixed and will not 
change, regardless of how well or poorly the plan is managed.”).  Thus, “a necessary 
predicate to a participant bringing broader claims on behalf of [a defined-benefit] plan is a 

showing of a concrete and particularized injury to the participant herself,” not just the plan, 
and that individual harm must “affect [the participant’s] benefits” to confer standing to sue.  
Scott, 540 F. Supp. 3d at 865; see also Thole II, 590 U.S. at 542–43.     
    The Plan in this case is “closely analogous to the defined-benefit plan at issue in 
Thole [II], as participants are entitled to their contractually defined benefits regardless of 

the value of the [Plan’s] assets.”  Scott, 540 F. Supp. 3d at 864.  In Scott, the plaintiffs were 
participants  in  a  defined-benefit  health  plan  administered  by  UnitedHealth  Group 
(“UHG”).    Id.    The  plaintiffs  challenged  UHG’s  practice  of  “cross-plan  offsetting,” 
whereby UHG used assets of the plaintiffs’ plan to recoup alleged overpayments made by 
a different UHG plan in which the plaintiffs were not participants.  See id. at 859–60.  The 

plaintiffs alleged that this cross-plan offsetting constituted harm to the plan and a breach 
of UHG’s fiduciary duties under ERISA.  Id. at 861.  As to their individual harm, the 
plaintiffs asserted that UHG “misus[ed] their payroll contributions” and “caus[ed] them 
financial injury” when it used the plaintiffs’ plan’s assets to cover another plan’s losses.  Id. 
at  862.    The  court  rejected  the  plaintiffs’  argument,  explaining  that  the  plaintiffs 
relinquished any individual interest in their contributions once those contributions became 

part of the plan’s “general pool of assets,” and that “[a] diminution of those assets [did] not 
affect plaintiffs’ entitlement to benefits in any way and therefore [did] not cause plaintiffs 
any injury.”  Id. (citation omitted).  The court, citing Thole II, ultimately concluded that 
“an injury to a plan that does not affect a plaintiff’s benefits does not give that plaintiff 
standing to sue on behalf of the plan.”  Id. at 865.                      
    Wells Fargo relies on Scott to assert that Plaintiffs do not plead a concrete injury 

sufficient to confer standing.  Specifically, Wells Fargo emphasizes that Plaintiffs have not 
alleged that they did not receive all the benefits to which they were entitled while they were 
members  of  the  Plan.    See  ECF  No.  30  at  10–12.    But  while  instructive,  Scott  is 
distinguishable from the facts and allegations in this case.  In Scott, the plaintiffs’ theory of 
individual harm was premised on their allegations that the plan at issue mismanaged plan 

assets, including the plaintiffs’ contributions, but that argument was expressly foreclosed 
by the Supreme Court’s decision in Thole II.  See Scott, 540 F. Supp. 3d at 862–63.  The 
Scott plaintiffs did not specifically allege that the contributions they were required to pay 
were excessive, as Plaintiffs do here.  And the Scott court was explicit that the plaintiffs in 
that case lacked standing because they had only alleged the defendants’ breaches of 

fiduciary duty “caused injury to the plan—and not injury to [the] plaintiffs themselves.”  
Id. at 861.  Importantly, the Scott court did not reach the issue of whether “additional or 
replacement  contributions”  could  satisfy the  injury-in-fact  requirement  for Article  III 
purposes because the Scott plaintiffs “[did] not allege that they personally had to make” 
such contributions.  See id. at 863 n.4.                                  

    Plaintiffs here avoid that pitfall—at least to some extent.  They assert that the 
contributions and out-of-pocket costs they were required to pay under the Plan’s terms were 
excessively high given Wells Fargo’s alleged breaches of fiduciary duty.  See, e.g., ECF 
No. 1 ¶ 208.  Unlike the Scott plaintiffs, Plaintiffs here do not premise their theory of 
individual harm solely on Wells Fargo’s purported misuse of participant contributions after 
Plaintiffs relinquished any legal interest in them.  And the hypothetical “additional or 

replacement contributions” discussed in Scott are analogous to the excessive contributions 
Plaintiffs allege here.  See id. (“[Plaintiffs] paid more in premiums than they would have 
paid absent [Wells Fargo’s] fiduciary breaches.”).                        
    A more recent Third Circuit case on which Plaintiffs rely, Knudsen v. MetLife Group, 
Inc., provides a closer analogy.  

 (3d Cir. 2024).  There, the plaintiffs were 

participants in an employee-sponsored defined-benefit health plan that retained a PBM—
coincidentally, ESI—to manage its prescription-drug benefits.  

 at 573–74.  As part of 
that agreement, ESI negotiated volume discounts and rebates with drug manufacturers, and 
under the plan’s terms, MetLife was to apply those rebates toward plan expenses.  

.  The plaintiffs alleged that MetLife directed the rebates to itself instead and that 

they would have received “multiple benefits,” including lower contributions and out-of-
pocket costs, had MetLife applied the rebates to plan expenses.  

 at 574–75.  Citing Thole 
II, MetLife argued, and the district court agreed, that “a beneficiary of an ERISA regulated 
defined-benefit plan has no injury unless the plan participants plead that they did not 
receive promised benefits . . . or that there is a substantial likelihood that the plan will 
default.”  

.                                                    

    On  appeal,  the  Knudsen  plaintiffs  convincingly  distinguished  the  employee-
sponsored health plan in their case with the pension plan at issue in Thole II: 
    [Plaintiffs] point out that benefits in pension plans accrue over years, and 
    once earned, the benefits, i.e., pension payments, are fixed and paid at regular 
    intervals.  In contrast, participants in a self-funded health plan pay for their 
    benefits through payroll deductions in the form of premiums, and the plan 
    sponsor can annually change both the amount of the premium (and other out-
    of-pocket costs) and the benefits to which a participant is entitled. 

  The Third Circuit agreed with the plaintiffs as a “purely theoretical proposition”: 
    [W]e decline to hold that Thole [II] . . . require[s] dismissal, under Article III, 
    whenever a participant in a self-funded healthcare plan brings an ERISA suit 
    alleging that mismanagement of plan assets increased his/her out-of-pocket 
    expenses.  While MetLife is correct that sponsors of self-funded health 
    insurance plans, like pension plans, bear all the risk of distributing benefits 
    to beneficiaries, we cannot ignore a more fundamental tenet of injury-in-fact: 
    financial harm, even if only a few pennies, is a concrete, non-speculative 
    injury.  A contrary conclusion, would mean that MetLife could charge Plan 
    participants thousands of dollars more in premiums than is allowed under 
    Plan  documents,  resulting  in  potential  ERISA  violations,  and  Plan 
    participants  would  have  no  judicial  recourse  to  seek  return  of  their 
    overpayments.  Thole [II] . . . command[s] no such result, and in a different 
    case, a plaintiff may well establish such a financial injury sufficient to satisfy 
    Article III.                                                         

 at 579–80 (citations omitted).  Still, despite its theoretical agreement with the plaintiffs’ 
argument, the Third Circuit concluded that the plaintiffs had not alleged concrete financial 
harm because “it is speculative that MetLife’s alleged misappropriation of drug rebate 
money resulted in Plaintiffs paying more for their health insurance or had any effect at all.”  

.                                                               
    The  Court  agrees  with  the  Third  Circuit’s  “purely  theoretical  proposition”  in 
Knudsen.  Thole II controls this case, as it controlled in Scott, 540 F. Supp. 3d at 862.  But 

the Court does not read Thole II to hold, as a matter of law, that a plaintiff suing a fiduciary 
of an ERISA-governed defined-benefit health plan cannot ever establish standing on a 
theory  of  harm  premised  on  excessive  out-of-pocket  costs.   As  the  Knudsen  court 
explained, such a conclusion would lead to absurd results where fiduciaries of defined-
benefit plans could flagrantly violate ERISA, up to and including plainly breaching the 
terms of the plans they serve, while effectively enjoying immunity from any liability so 

long as participants receive the benefits to which they are entitled.  Such an outcome would 
frustrate ERISA’s core purpose: to “protect contractually defined benefits.”  US Airways, 
Inc. v. McCutchen, 

 (2013) (citation omitted); see also, e.g., Boggs v. 
Boggs, 

 (1997) (“The principal object of [ERISA] is to protect plan 
participants  and  beneficiaries.”).   And  more  broadly,  it  would  undermine  the  well-

established principle that “[f]or standing purposes, a loss of even a small amount of money 
is ordinarily an ‘injury.’”  Demarais v. Gurstel Chargo, P.A., 

 (8th Cir. 
2017) (quoting Czyzewski v. Jevic Holding Corp., 

 (2017)); cf. Thole II, 

 (“There is no ERISA exception to Article III.”).          
    Unfortunately for Plaintiffs, that is not the end of this Court’s agreement with the 

Knudsen  court,  and  the  Third  Circuit’s  theoretical  proposition  runs  aground  when 
confronted with the facts alleged here, just as it did there.  The underlying argument 
Plaintiffs advance, while different in the specifics, is essentially the same as in Knudsen: 
had Wells Fargo more closely monitored the Plan’s prescription drug costs and negotiated 
a better deal with ESI, replaced ESI with a different PBM,9 or adopted a different model 
altogether, the Plan would have paid less in administrative fees and other compensation to 

ESI, which would have resulted in lower participant contributions and out-of-pocket costs.  
Plaintiffs’ theory appears tempting at first blush, but it withers upon closer scrutiny. 
    To begin, the connection between what Plan participants were required to pay in 
contributions and out-of-pocket costs, and the administrative fees the Plan was required to 
pay ESI, is tenuous at best.  Of critical importance here is that the Plan vests Wells Fargo 
with “sole discretion” to set participant contribution rates.  ECF No. 31-3 at 9; see also 

ECF No. 31-2 at 22.  The Plan’s terms are clear that participant contribution amounts may 
be affected by several factors having nothing to do with prescription drug benefits, like 


9    On this point, the Court struggles to see how Wells Fargo selecting ESI as the Plan’s 
PBM could form a basis for a claim of breach of fiduciary duty under ERISA on the facts 
alleged here.  Plaintiffs themselves acknowledge that ESI is one of the “Big 3” PBMs.  See 
ECF No. 1 ¶ 86.  Even if Wells Fargo had conducted an “open RFP process,” as Plaintiffs 
insist it should have, id. ¶ 82, it appears quite plausible that Wells Fargo still would have 
selected ESI—as many other companies evidently have, see id. ¶ 86—leaving Plaintiffs in 
precisely the same situation.  Further, Plaintiffs do not offer any meaningful or relevant 
comparison between ESI and the other two of the “Big 3” PBMs—CVS Caremark and 
OptumRx.  See id.  Plaintiffs allege that other large companies generally “use the specialty 
carve-out model for their prescription-drug plans,” which purportedly “offer[s] substantial 
savings to plans and their participants,” and cite two specific companies who implemented 
such carve-outs in their agreements with CVS Caremark and OptumRx.  Id. ¶ 90.  But these 
allegations, even accepted as true, are missing critical information.  Plaintiffs do not allege 
facts regarding the relative size and scope of those companies’ plans or explain how much 
those companies’ plans saved by implementing those carve-outs.  Indeed, Plaintiffs do not 
clearly  or  specifically  allege  that  the  carve-outs  reduced  those  plan  participants’ 
contributions or out-of-pocket costs at all.  Nor do Plaintiffs offer specific facts relating to 
why those companies chose to implement carve-outs.  Ultimately, Plaintiffs’ allegation that 
such a carve-out in Wells Fargo’s agreement with ESI necessarily would have resulted in 
lower contributions and out-of-pocket costs is speculative and conclusory. 
whether a participant uses tobacco, whether a participant obtains coverage for her spouse 
or children in addition to herself, and a participant’s “compensation category.”  ECF 

No. 31-3 at 9.  And notwithstanding that Wells Fargo supplied the bulk of Plan funding 
during the relevant period, see ECF No. 30 at 4 n.1, the Plan authorizes Wells Fargo to 
require participants to fund all Plan expenses, not just expenses related to their own 
individual  benefits.    See  ECF  No.  31-2  at  22  (emphasis  added)  (providing  that 
“[p]articipants shall be responsible for payment of applicable premiums and contributions 
to the Plan,” but that “[Wells Fargo] may pay such contributions to the Plan”); ECF No. 

31-2 at 22 (emphasis added) (“All fees and expenses incurred in connection with the 
operation and administration of the Plan may be paid out of the Trust or any other Plan 
asset . . . .”).                                                          
    Taken together, it is speculative that the allegedly excessive fees the Plan paid to 
ESI “had any effect at all” on Plaintiffs’ contribution rates and out-of-pocket costs for 

prescriptions.  Knudsen, 

.  And Plaintiffs’ attempts to establish a direct 
connection between their increased costs and the increases in administrative fees paid by 
the Plan to ESI are unconvincing. For example, Plaintiffs offer comparisons between the 
purchase  prices  for  certain  prescription  drugs  under  the  Plan  vis-à-vis  the  prices  an 
uninsured  person  would  pay  at  retail  pharmacies  for  the  same  prescriptions  or  the 

acquisition costs paid by the pharmacies to obtain those drugs.  See ECF No. 1 ¶¶ 114–31.  
But as Wells Fargo notes, those comparisons relate to only 260 of the drugs in the Plan’s 
formulary,  a  relatively  narrow  subset  of  the  “thousands”  of  drugs  in  the  Plan’s  full 
formulary.  ECF No. 30 at 7.  And a Plan participant is only responsible for the full out-of-
pocket costs for prescription drugs—whether “preferred alternative,” “generic-specialty,” 
or otherwise—until the participant meets their annual deductible, after which the Plan 

covers most of the costs for that participant’s prescription drugs for the remainder of the 
year.  See ECF No. 1 ¶ 33.  Plaintiffs’ selective allegations regarding the markups on a 
subset of prescription drugs in the Plan’s formulary, ECF No. 1 ¶¶ 108–31, which itself 
represents only a subset of the total benefits whose costs Plan participants’ contributions 
may be used to cover, ECF No. 31-2 at 22, are not sufficient to establish a causal connection 
between Plaintiffs’ increased costs and ESI’s administrative fees.  There are simply too 

many variables in how Plan participants’ contribution rates are calculated to make the 
inferential leaps necessary to elevate Plaintiffs’ allegations from merely speculative to 
plausible.  See Harris, 729 F. Supp. 3d at 877.                           
    Knudsen is instructive on this point as well.  There, the plaintiffs asserted they would 
have received “multiple benefits” had the defendant not breached its fiduciary duties: 

    First, it may have been consistent with its fiduciary duties for [MetLife] to 
    reduce ongoing contributions on account of the rebates collected by the Plan.  
    Second,  [MetLife]  may  have . . .  reduced  co-pays  and  co-insurance  for 
    pharmaceutical benefits.  Third, [MetLife] may have distributed rebates to 
    participants in proportion to their contributions to the Plan.       
Knudsen, 

 (alterations in original).  The Third Circuit was not convinced, 
reasoning that “[t]hese allegations readily permit an inference that even if MetLife had not 
committed  ERISA  violations,  it  may  not  have  taken  any  of  these  listed  actions  and 
Plaintiffs’ out-of-pocket costs would have still increased.”  

         
    Such  is  the  case  here.    Plaintiffs  attempt  to  avoid  Knudsen’s  conclusion  by 
substituting “may” with “would.”  For instance, Plaintiffs allege that “if [Wells Fargo] 
stopped causing the Plan to overspend on prescription drugs and related fees by millions 
of dollars each year[,] employee contributions would be lower as well, in order to maintain 

the same 75-25 split between employer and employee contributions to which [Wells Fargo 
has] demonstrated [its] commitment.”  ECF No. 1 ¶ 207 (emphasis added); see ECF No. 38 
at 12–13.  But this argument assumes that Wells Fargo would maintain the 75-25 employer-
employee contribution ratio, and nothing in the Plan requires Wells Fargo to do so.  See 
ECF No. 31-3 at 9; ECF No. 31-2 at 22.  Plaintiffs’ argument also fundamentally misses 
the point: if Plaintiffs prevailed in this case and received every bit of the relief they request, 

see 

 ¶¶ 249–57, Wells Fargo could still increase Plan participants’ contribution amounts 
under the Plan’s terms without any violation of ERISA having occurred.  Merely changing 
“may” to “would” is a semantic sleight of hand that does not make the proposition any 
more certain or its conclusion any less speculative.10  See Horvath v. Keystone Health Plan 
E., Inc., 

, 457 (3d Cir. 2003) (concluding that whether plan savings would 

have passed to plan participants was “too speculative to serve as the basis for a claim of 
individual loss”).                                                        
    Plaintiffs also seem to suggest this Court could alter the terms of the Plan to 
expressly require Wells Fargo to reduce (or even maintain) participants’ contribution 
amounts, but the Court is not convinced.  The Court is unaware of any mechanism by which 



10   In fact, Knudsen characterized the plaintiffs’ allegations in exactly the way Plaintiffs 
here framed their allegations: “According to Plaintiffs, they would have received ‘multiple 
benefits’ if MetLife had not misallocated drug rebates[.]”  Knudsen, 

 
(emphasis added).                                                         
it could force Wells Fargo to reduce participant contribution rates.  Nor have Plaintiffs 
identified one.11  Whether “surcharge, restitution, or other make-whole equitable relief,” 

“[r]emoving the Plan’s fiduciary” and “appointing an independent fiduciary,” “[r]emoving 
and replacing the Plan’s PBM and/or requiring a search for [an] alternative PBM,” or 
injunctive relief, ECF No. 1 ¶¶ 251–54, Plaintiffs’ theory of redressability stumbles on the 
same obstacle: Wells Fargo’s “sole discretion” to set participant contribution rates.  ECF 
No.  31-3  at  9.    Simply  put,  while  Plaintiffs’  requested  relief  could  result  in  lower 
contribution  rates  and  out-of-pocket  costs,  there  is  no  guarantee  that  it  would,  and 

“pleadings  must  be  something  more  than  an  ingenious  academic  exercise  in  the 
conceivable” to meet the standing threshold.  United States v. Students Challenging Regul. 
Agency Procs., 

 (1973).  Plaintiffs’ theory is plainly rooted in speculation 
and conjecture, and “[s]uch pleadings are not sufficient to support Article III standing.”  
Knudsen, 

.                                                

    While compelling and detailed, Plaintiffs’ allegations are simply too speculative to 
show concrete individual harm, too tenuous to show causation, and too conjectural to show 


11   Reformation, which Plaintiffs do not request, would ostensibly fit the bill, and it is 
an available remedy under Section 1132(a)(3).  Powell v. Minn. Life Ins. Co., 

 (8th Cir. 2023).  Reformation is only appropriate, however, in instances of mistake or 
fraud, neither of which Plaintiffs allege here.  See, e.g., Ibson v. United Healthcare Servs., 
Inc., 

 (8th Cir. 2017) (alteration in original) (quoting Silva v. Metro. Life 
Ins. Co., 

 (8th Cir. 2014)) (“The ‘reformation remedy available under 
§ 1132(a)(3) . . . allow[s] courts to reform contracts that failed to express the agreement of 
the parties.’”); CIGNA Corp. v. Amara, 

 (2011) (“The power to reform 
contracts (as contrasted with the power to enforce contracts as written) is a traditional 
power of an equity court . . . and was used to prevent fraud.”).          
redressability.  Accordingly, Plaintiffs lack Article III standing to sue under 

(a)(2).                                                             

         2.   Claims Under 

(a)(3) (Counts II and IV)     
    As  even  Wells  Fargo  concedes,  Plaintiffs’  individual  claims  under  Section 
1132(a)(3) “do not suffer from” all the same issues as their representative claims on behalf 
of the Plan under Section 1132(a)(2).12  ECF No. 30 at 14.  Nevertheless, Plaintiffs cannot 
establish standing under Section 1132(a)(3) both because they have not alleged concrete 
individual harm and because these Plaintiffs “have no concrete stake in the lawsuit” 

regarding any prospective injunctive relief.  Thole II, 590 U.S. 541–42.  
    Section 1132(a)(3) “allows an individual plan participant to seek equitable remedies 
for breach of fiduciary duty in his [or her] individual capacity.”  Knieriem v. Grp. Health 
Plan, Inc., 

 (8th Cir. 2006).  Recovery under Section 1132(a)(3), 
however, is limited to traditional equitable remedies “such as injunctive, restitutionary, or 

mandamus relief.”  

 (quoting Kerr v. Charles F. Vatterott & Co., 

 (8th 
Cir. 1999)).  Importantly, Section 1132(a)(3) “does not . . . authorize appropriate equitable 
relief at large, but only appropriate equitable relief for the purpose of redressing any 
violations or . . . enforcing any provisions of ERISA or an ERISA plan.”  Peacock v. 
Thomas, 

 (1996) (cleaned up) (citation omitted).         


12   Wells Fargo largely focuses its argument on the distinction between “fiduciary” and 
“settlor” acts, contending that the conduct Plaintiffs challenge—“setting premiums, co-
pays, and deductibles”—are settlor functions that are not subject to review under ERISA.  
ECF No. 30 at 15–17.  Wells Fargo does not “explain how this analysis goes to the Court’s 
standing inquiry.”  Sigetich v. Kroger Co., No. 1:21-cv-697, 

, at *8 (S.D. 
Ohio Mar. 9, 2023).                                                       
    Plaintiffs must show “‘actual or imminent injury to the Plan itself’ that caused injury 
to the plaintiffs’ interests in the Plan” to establish standing under Section 1132(a)(3).  Thole 

I, 

 (quoting Soehnlen, 

).  The Supreme Court affirmed that 
approach in Thole II, reasoning that the plaintiffs there lacked standing because they had 
received all benefits to which they were entitled, and “the outcome of [the] suit would not 
affect their future benefit[s].”  Thole II, 

.  Thole II instructs that ERISA 
plaintiffs must “have [a] concrete stake” in the outcome of the suit, as Article III requires 
of plaintiffs in all cases.  

; see also 

 (“There is no ERISA exception to 

Article III.”).                                                           
    Again, Thole II controls here, and Plaintiffs clearly do not have a stake in any of the 
prospective equitable relief they request.  They are no longer participants in the Plan, see 
ECF No. 1 ¶¶ 14–17, so any changes to the Plan’s structure or administration going 
forward—like replacing ESI as the Plan’s PBM or removing the Plan’s fiduciaries and 

appointing an independent fiduciary, 

 ¶¶ 252–53—will not personally affect them in any 
way, much less redress the individual harm they allege.  See e.g., DeFazio v. Hollister Emp. 
Share Ownership Tr., 

 (9th Cir. 2015) (“The Plan Participants, who 
have already cashed out of the Plan, lack Article III standing as to redressability vis-à-vis 
their claims for prospective equitable relief.”); Trauernicht v. Genworth Fin. Inc., No. 3:22-

cv-532,  

,  at  *6  (E.D.  Va.  Sept.  13,  2023)  (holding  former  plan 
participants lacked standing because “any changes to the process in the future would not 
affect them, making their claim for prospective injunctive relief non-redressable”); Peters 
v. Aetna, Inc., No. 1:15-cv-109-MR, 

, at *7 (W.D.N.C. June 5, 2023) 
(“[T]he Plaintiff’s lack of continued participation in the Mars Plan is fatal to her standing 
to assert claims for prospective injunctive relief.”); Savage v. Sutherland Glob. Servs., Inc., 

No. 6:19-cv-6840 EAW, 

, at *6 (W.D.N.Y. Aug. 28, 2024) (holding 
“Plaintiffs lack Article III standing to seek prospective relief” because “none of Plaintiffs 
are still enrolled in the Plan” and “thus are not in danger of any future injury from the 
selection of ADP as recordkeeper”).                                       
    As it relates to Plaintiffs’ request for non-injunctive (that is, retrospective) equitable 
relief, Plaintiffs do not dispute that they received all the benefits to which they were entitled 

when they were participants in the Plan, even if they believe they had to pay more for those 
benefits than they should have.  See, e.g., ECF No. 1 ¶¶ 196–203.  And as already discussed, 
Plaintiffs’ allegations of individual harm are speculative at best and insufficient to establish 
Article  III  standing.    Other  courts  have  reached  the  same  conclusion  in  similar 
circumstances—even before Thole II was decided.  See Cox v. Blue Cross Blue Shield of 

Mich., 

 (E.D. Mich. 2016) (finding no standing to seek “restitution, 
disgorgement, [and] surcharge” under Section 1132(a)(3) because “[a]t most, it is Plaintiffs’ 
healthcare plans that suffered concrete and particularized injuries when they paid BCBSM 
the hidden fees” which was “not concrete or particularized harm to Plaintiffs.”).  Further, 
much of the retrospective equitable relief Plaintiffs request bears the characteristics of 

monetary or compensatory relief.  See ECF No. 1 ¶¶ 251, 254 (requesting “make-whole” 
and “monetary” relief).  But such relief is not available under Section 1132(a)(3).  See, e.g., 
Kerr, 

 (“[S]ection 1132(a)(3) recovery . . . does not extend to compensatory 
damages.”); Mertens v. Hewitt Assocs., 

 (1993) (holding plaintiffs could 
not seek relief under Section 1132(a)(3) because their claims sought “monetary relief for 
all losses their plan sustained as a result of the alleged breach of fiduciary duties,” which 

is the “classic form of legal relief”); Paulsen v. CNF Inc., 

 (9th Cir. 
2009) (finding no standing to sue under Section 1132(a)(3) where plaintiffs requested to be 
made “whole in the amounts by which their pension benefits have been reduced as a result 
of [fiduciary] breaches”).                                                
    Plaintiffs have no stake in the outcome of this case as it relates to the prospective 
equitable relief they seek.  Nor can they show a concrete and particularized injury sufficient 

to establish standing to seek retrospective equitable relief, and some of the retrospective 
equitable relief they request is “foreclosed by Supreme Court precedent.”  Paulsen, 

; see also Mertens, 

.  Consequently, Plaintiffs lack standing to 
pursue their claims under 

(a)(3).13                       
                         CONCLUSION                                      

    The Court is not unsympathetic to Plaintiffs’ concerns.  Prescription drug costs are 
high—even for those who are insured, as forcefully set forth in Plaintiffs’ complaint.  
Plaintiffs’ frustration is understandable, and this Court will not tell them otherwise. 
    But however sympathetic the Court may be, it cannot ignore the law.  Under ERISA, 
as interpreted in decisions that bind this Court, Plaintiffs’ allegations are insufficient to 

establish Article III standing.   As a result, Plaintiffs’ complaint must be dismissed. 

13   Because the Court dismisses Plaintiffs’ complaint for lack of standing, the Court 
need not address Wells Fargo’s alternative basis for dismissal under Rule 12(b)(6).  See 
ECF No. 30 at 20–31.                                                      

    Based on the foregoing, and on all of the files, records, and proceedings in the 

above-captioned matter, IT IS HEREBY ORDERED that:                        
    1.   Wells Fargo’s Motion to Dismiss (ECF No. 28) is GRANTED; and    
    2.   Plaintiffs’  Complaint  (ECF  No.  1)  is  DISMISSED  WITHOUT   
PREJUDICE.                                                                
    LET JUDGMENT BE ENTERED ACCORDINGLY.                                 


Dated: March 24, 2025           s/Laura M. Provinzino                    
                                Laura M. Provinzino                      
                                United States District Judge