9th Circuit Holds Section 10(b) Violations Sufficient For ERISA Breach Of Duty Claims

by Allen Matkins

A decision issued yesterday by the Ninth Circuit Court of Appeals illustrates the peril that can inhere in offering a company stock alternative in a plan governed by the Employee Retirement Income Security Act (ERISA). 

Several years ago, Connecticut Retirement Plans and Trust Funds brought a securities fraud action against Amgen Inc. and several of its officers, alleging that, by misstating and failing to disclose safety information about two Amgen products used to treat anemia (a red blood cell deficiency), they violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934.  In 2009, Judge Philip S. Gutierrez granted class certification.  Conn. Ret. Plans & Trust Funds v. Amgen, Inc., 2009 U.S. Dist. LEXIS 71653 (Aug. 12, 2009).  Tw0 years later, the Ninth Circuit Court of Appeals affirmed.  Conn. Ret. Plans & Trust Funds v. Amgen, Inc.,  660 F.3d 1170 (9th Cir. 2011) and the U.S. Supreme Court affirmed,  Amgen Inc. v. Conn. Ret. Plans & Trust Funds, __ U.S.__, 133 S. Ct. 1184 (2013).

At about the same time, the current and former employees of Amgen brought a suit alleging a breach of fiduciary duty under ERISA.  Judge Gutierrez found that the plaintiffs had failed to state any claims and dismissed the complaint without prejudice.  Rather than amend, the plaintiffs appealed the dismissal of all but one of their claims to the Ninth Circuit Court of Appeals.  In an opinion issued yesterday, the Court of Appeals reversed.  Harris v. Amgen, Inc., 9th Cir. Case No. 10-56014 (June 4, 2013).  While the opinion is likely to excite vigorous cogitation in ERISA lawyers, I found the following statement to be of particular interest and concern:

If the alleged misrepresentations and omissions, scienter, and resulting decline in share price in Connecticut Retirement Plans were sufficient to state a claim that defendants violated their duties under Section 10(b), the alleged misrepresentations and omissions, scienter, and resulting decline in share price in this case are sufficient to state a claim that defendants violated their more stringent duty of care under ERISA.

In other words, allegations that are sufficient to state a violation of Section 10(b) will be sufficient to state a breach of duty of care claim under ERISA.

O Callooh, Callay!

I’m very excited to announce  the release of the second edition of Bishop and Zucker on Nevada Corporations and Limited Liability Companies. 

Two decades ago, I launched Nevada Corporations Law & Practice.  The U.S. District Court cited that book in Shoen v. Amerco, 885 F. Supp. 1332 (D. Nev. 1994).  A subsequent version of that book was cited by the Nevada Supreme Court in Cohen v. Mirage Resorts, Inc., 62 P. 3d 720 (Nev. 2003) and by the U.S. District Court in Sweeney v. Harbin Elec., Inc., 2011 U.S. Dist. LEXIS 82872 (July 27, 2011).

In 2011, I combined efforts with the Nevada law firm of Lionel Sawyer & Collins to rewrite the book to reflect the many changes in Nevada corporate law.  Last year, the Nevada Supreme Court cited the book in Weddell v. H2O, Inc., 271 P. 3d 743 (Nev. 2012).  The new second edition incorporates cases and statutes in Nevada that have clarified or changed Nevada corporate law since then. 

Information on how to order the second edition is available here.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Allen Matkins | Attorney Advertising

Written by:

Allen Matkins

Allen Matkins on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.