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EVANS v. AKERS

No. 07-1140.

534 F.3d 65 (2008)

Keri EVANS, on behalf of herself and a class of all others similarly situated; Timothy Whipps, on behalf of himself and a class of all others similarly situated, Plaintiffs, Appellants, Lawrence Bunch, individually and on behalf of all others similarly situated and on behalf of the W.R. Grace & Co. Employee Savings and Investment Plan and the Grace Stock Fund; Jerry L. Howard, Sr.; David Mueller, individually and on behalf of all others similarly situated, and on behalf of the W.R. Grace & Co. Employee Savings and Investment Plan and the Grace Stock Fund, Plaintiffs, v. John F. AKERS; Ronald C. Cambre; Marye Anne Fox; John J. Murphy; Paul J. Norris; Thomas A. Vanderslice; H. Furlong Baldwin; Investments And Benefits Committee; Administrative Committee; Brenda Gottlieb; W. Brian McGowan; Michael Piergrossi; Robert M. Tarola; Eileen Walsh; David Nakashige; Elyse Napoli; Martin Hunter; Ren Lapadario, Defendants, Appellees, Fidelity Management Trust Company; State Street Bank and Trust Company; Unknown Fiduciary Defendants 1-100; State Street Global Advisors; W.R. Grace & Co.; W.R. Grace Investment and Benefits Committee; Fred E. Festa, Defendants.

United States Court of Appeals, First Circuit.

Decided July 18, 2008.

Attorney(s) appearing for the Case

Edward W. Coilko, with whom Joseph H. Meltzer, Katherine B. Bornstein, Schiffrin Barroway Topaz & Kessler, LLP, David Pastor, and Gilman and Pastor, LLP were on brief, for appellants.

Carol Connor Cohen, with whom Nancy S. Heermans, Caroline Turner English, Valerie N. Webb, and Arent Fox LLP were on brief, for appellees.

Jonathan Hammer, with whom Elizabeth Hopkins, Counsel for Appellate and Special Litigation, Jonathan L. Snare, Acting Solicitor of Labor, Timothy D. Hauser, Associate Solicitor, and Nathaniel I. Spiller, Counsel for Appellate and Special Litigation, were on brief, for Secretary of Labor Elaine L. Chao, amicus curiae.

Before TORRUELLA, Circuit Judge, WALLACE, Senior Circuit Judge, and LIPEZ, Circuit Judge.

LIPEZ, Circuit Judge.

This case requires us to decide whether former employees who have received lump-sum distributions of the entire balance in their employer's defined contribution plan may sue on behalf of the plan to recover for alleged fiduciary breaches that diminished the value of their accounts. The question turns on whether they are "participants" within the relevant statutory definition in the Employee Retirement Income Security Act of 1974 ("ERISA"), 29...

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