                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 20 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MICHAEL F. DORMAN, individually as a            No.    18-15281
participant in the SCHWAB PLAN
RETIREMENT SAVINGS AND                          D.C. No. 4:17-cv-00285-CW
INVESTMENT PLAN and on behalf of a
class of all those similarly situated,
                                                MEMORANDUM*
                Plaintiff-Appellee,

 v.

THE CHARLES SCHWAB
CORPORATION; et al.,

                Defendants-Appellants.

                   Appeal from the United States District Court
                     for the Northern District of California
                    Claudia Wilken, District Judge, Presiding

                       Argued and Submitted June 14, 2019
                            San Francisco, California

Before: GOULD and IKUTA, Circuit Judges, and PEARSON,** District Judge.

      The district court erred by refusing to compel arbitration of the ERISA


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Benita Y. Pearson, United States District Judge for the
Northern District of Ohio, sitting by designation.
breach of fiduciary duty claims asserted in the First Amended Class Action

Complaint even though those claims fall squarely within the ambit of at least the

Schwab Retirement Savings and Investment Plan (the “Plan”).1

      1. The district court incorrectly found that Michael Dorman was not bound

by the Plan document’s arbitration provision (the “Provision”). Contrary to the

district court’s ruling, the record reflects that Dorman participated in the Plan for

nearly a year while the Provision was in effect. A plan participant agrees to be

bound by a provision in the plan document when he participates in the plan while

the provision is in effect. See, e.g., Chappel v. Lab. Corp. of Am., 232 F.3d 719,

723–24 (9th Cir. 2000).

      The district court reasoned Dorman was not bound by the Provision and,

therefore, he did not agree to arbitrate his ERISA § 502(a) claims. We recently

held, however, that such claims belong to a plan—not an individual. Munro v.

Univ. of S. Cal., 896 F.3d 1088, 1092 (9th Cir. 2018). The relevant question is

whether the Plan agreed to arbitrate the § 502(a)(2) claims. Here, the Plan

expressly agreed in the Plan document that all ERISA claims should be arbitrated.

      The Provision selects an arbitral forum for resolving fiduciary breach claims

and requires the arbitration to be conducted on an individual rather than collective


      1
            In a published opinion filed concurrently with this memorandum, we
overrule Amaro v. Continental Can Co., 724 F.2d 747 (9th Cir. 1984), and reverse
and remand.

                                           2                                    18-15281
basis. These claims “arise out of” and “relate to” the Plan because the claims are

asserted under ERISA and allege that Plan fiduciaries breached their duties to the

Plan. Therefore, the claims fall within the scope of the Provision.

      The district court’s reliance on Johnson v. Couturier, 572 F.3d 1067 (9th

Cir. 2009), is misplaced because, in this case, the amendment was not an effort to

insulate fiduciaries from ERISA liability. Instead of obstructing liability, a forum

was selected for litigating fiduciary breach claims that offered “quicker, more

informal, and often cheaper resolutions for everyone involved.” Epic Sys. Corp. v.

Lewis, 138 S. Ct. 1612, 1621 (2018).

      The Provision is not invalid under ERISA § 410(a), 29 U.S.C. § 1110(a).

An agreement to conduct arbitration on an individual basis, as in this case, does not

“relieve a fiduciary from responsibility or liability.”

      2. Once it is established that a dispute falls within the scope of an arbitration

agreement, a court must order arbitration unless the agreement is unenforceable

“upon such grounds as exist at law or in equity for the revocation of any contract.”

9 U.S.C. § 2. The Federal Arbitration Act’s (“FAA”) savings clause recognizes

only “generally applicable contract defenses, such as fraud, duress, or

unconscionability.” Epic, 138 S. Ct. at 1622. The FAA’s savings clause is

inapplicable because Dorman does not assert any generally applicable contract

defenses.


                                           3                                   18-15281
      The district court held that the Provision was unenforceable on two

alternative grounds. One ground, however, was later expressly rejected by the

Supreme Court in Epic, and the other turned on the court’s finding that arbitration

places plan participants at a “disadvantage.” To the extent the district court

believed that an arbitrator would be less equipped than a court to resolve ERISA

claims or less willing to find against Plan fiduciaries, the court was expressing

precisely the type of “judicial hostility” towards arbitration that the FAA was

designed to eliminate. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20,

24 (1991).

      The district court’s holding that the Provision is unenforceable because it

violates the National Labor Relations Act (“NLRA”) is foreclosed by Epic, which

held that an arbitration agreement in which an employee agrees to arbitrate claims

against an employer on an individual basis, is enforceable and does not violate the

NLRA. 138 S. Ct. at 1624–25.

      Claims alleging a violation of a federal statute such as ERISA are generally

arbitrable absent a “contrary congressional command.” Am. Express Co. v. Italian

Colors Rest., 570 U.S. 228, 233 (2013). As every circuit to consider the question

has held, ERISA contains no congressional command against arbitration, therefore

an agreement to arbitrate ERISA claims is generally enforceable. See, e.g.,

Williams v. Imhoff, 203 F.3d 758, 767 (10th Cir. 2000); Kramer v. Smith Barney,


                                          4                                      18-15281
80 F.3d 1080, 1084 (5th Cir. 1996).

      In its second ground, the district court incorrectly held that the Provision is

unenforceable under Bowles v. Reade, 198 F.3d 752 (9th Cir. 1999), because a plan

participant cannot agree to arbitrate a § 502(a)(2) claim without the plan’s consent.

Here, the Plan did consent in the Plan document to arbitrate all ERISA claims.

Dorman also did not waive any rights that belong to the Plan. When an individual

participant agrees to arbitrate, he does not give up any substantive rights that

belong to other Plan participants.

      3. No party can be compelled under the FAA to arbitrate on a class-wide or

collective basis unless it agrees to do so by contract. Stolt-Nielsen S.A. v.

AnimalFeeds Int’l Corp., 559 U.S. 662, 684 (2010). The Supreme Court’s recent

decision in Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407 (2019), confirms that the

parties here should be ordered into individual arbitration, as they did not agree to

class-wide or collective arbitration. Because “arbitration is a matter of contract,”

the Provision’s waiver of class-wide and collective arbitration must be enforced

according to its terms, and the arbitration must be conducted on an individualized

basis. See Am. Express Co., 570 U.S. at 233.

      Although § 502(a)(2) claims seek relief on behalf of a plan, the Supreme

Court has recognized that such claims are inherently individualized when brought

in the context of a defined contribution plan like that at issue. LaRue v. DeWolff,


                                           5                                       18-15281
Boberg & Assocs., Inc., 552 U.S. 248 (2008). LaRue stands for the proposition

that a defined contribution plan participant can bring a § 502(a)(2) claim for the

plan losses in her own individual account. Id. at 256; see also Munro, 896 F.3d at

1093. The Plan and Dorman both agreed to arbitration on an individualized basis.

This is consistent with LaRue.

      REVERSED and REMANDED with instructions for the district court to

order arbitration of individual claims limited to seeking relief for the impaired

value of the plan assets in the individual’s own account resulting from the alleged

fiduciary breaches.




                                          6                                    18-15281
