                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

____________________________
                               )
PATRICK RUSSELL,               )
                               )
          Plaintiff,           )
                               )
          v.                   )    Civil Action No. 07-2212 (RWR)
                               )
HARMAN INTERNATIONAL           )
INDUSTRIES, INCORPORATED,      )
et al.,                        )
                               )
          Defendants.          )
____________________________   )

                        MEMORANDUM OPINION

     Plaintiff Patrick Russell, a participant in the Harman

Retirement Savings Plan (the “Plan”) established by Harman

International Industries, Incorporated (“Harman”), brings on his

own behalf and on behalf of others similarly situated this

putative class action against Harman, Dr. Sidney Harman, Sandra

Buchanan, Kevin Brown, Gregory Henry, Chet Simon, Jeffrey Curtis,

Robert Ryan, the Harman Administrative Committee, the Harman

Investment Committee, the Harman Pension Committee, and unknown

fiduciary defendants 1-10, seeking damages and declaratory and

injunctive relief for breach of fiduciary duties in violation of

the Employee Retirement Income Security Act of 1974 (“ERISA”), 29

U.S.C. § 1001 et seq.   The defendants have moved under Federal

Rule of Civil Procedure 12(b)(6) to dismiss the complaint for

failure to state a claim arguing that Russell is contractually

barred from bringing this action.   Because Russell released his
                                    -2-

individual ERISA claims alleged in his amended complaint and

lacks Article III standing to bring ERISA claims on behalf of

Plan participants, the defendants’ motion to dismiss, treated as

a motion for summary judgment, will be granted.

                                BACKGROUND

        Harman develops, manufactures, and markets audio products

and electronic systems.      Am. Compl. ¶ 14.   Russell is a former

Harman employee and a participant in the Plan, an employee

pension benefit plan.       Id. ¶¶ 13, 37.   Russell alleges that each

of the defendants was a fiduciary of the Plan under ERISA.       Id.

¶ 54.       The Plan is a participant-directed defined contribution

plan.1      As such, participants in the Plan choose from among a

number of pre-selected investment options where to invest the

money in their 401(k) accounts.      See id. ¶¶ 40-41.    One of the

investment options available under the Plan is Harman common

stock.      Id. ¶¶ 49-51.   During the class period, April 26, 2007


        1
       A “defined contribution plan” or “individual account plan”
is “a pension plan which provides 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, and any forfeitures of accounts of
other participants which may be allocated to such participant’s
account.” 29 U.S.C. § 1002(34). In a defined contribution plan
the employer’s contribution for each participant is based on the
employer’s profits. “Having made that contribution, the
employer’s obligation to fund is over because the employee is not
guaranteed a particular benefit, just a specified input. In a
defined contribution context, the participant’s ultimate economic
entitlement is the amount to which the defined contributions for
her, plus earnings, grow or shrink.” See Edward A. Zelinsky, The
Defined Contribution Paradigm, 114 Yale L.J. 451, 455 (2004).
                                  -3-

through the time of the complaint, “the Plan invested in Harman

common stock.”    Id. ¶ 2.

        On April 26, 2007, Harman issued a press release announcing

that Harman had agreed to be acquired by Kohlberg Kravis Roberts

& Co. L.P. (“KKR”) and GS Capital Partners (“GSCP”) and that

“[u]nder the terms of the agreement, Harman stockholders [would]

be entitled to receive $120 in cash for each share of Harman

common stock they [held]”.    Id. ¶ 101.    Russell alleges that in

the press release and a conference call the same day, the

defendants made several materially false and misleading

disclosures regarding Harman’s financial conditions.     For

example, Sidney Harman stated that Harman’s inventory of personal

navigation devices (“PND”) would decrease as sales increased

throughout 2007.    Id. ¶¶ 104, 107.    He also projected that Harman

would have opportunities to expand its sales of infotainment

systems, such as the MyGIG radio, in 2007 and 2008.     Id. ¶¶ 104-

07, 109.    Russell contends that contrary to Sidney Harman’s

positive predictions, the MyGIG radio and the PND were “[a]t the

center of the Company’s deteriorating financial condition.”     Id.

¶ 93.    Russell further alleges that the defendants continued to

make false and misleading statements regarding these products,

Harman’s capital expenditures, and Harman’s financial condition.

Id. ¶ 94.    Russell claims that as a result of the defendants’

false and misleading statements, KKR and GSCP decided not to
                                  -4-

acquire Harman, causing the price of Harman common stock to drop

nearly 30 percent in two trading days.   Id. ¶¶ 132-40.

     Russell’s amended complaint charges that the defendants

breached their fiduciary duty of loyalty by failing to disclose

complete and accurate financial information about Harman and

their fiduciary duty of prudence by allowing Plan members to

invest in Harman common stock despite Harman’s poor financial

condition (Counts One and Two).    The amended complaint also

charges that the defendants breached their fiduciary duty to

monitor other fiduciaries (Count Three) and avoid conflicts of

interest (Count Four).   It further charges that all defendants

are responsible for the fiduciary breaches of their co-

fiduciaries (Count Five).   The amended complaint charges in the

alternative that if Harman is found not to be a fiduciary, Harman

is still liable for knowingly participating in the breaches of

other fiduciaries (Count Six).2


     2
       The defendants argue that Counts Three through Six are
“derivative claims” because they “all depend on a finding that
there is an underlying breach of fiduciary duty.” Defs.’ Mot. to
Dismiss the Am. Class Action Compl., Mem. of P. & A. in Supp. of
Defs.’ Mot. to Dismiss the Am. Class Action Compl. at 39. Where
a claim is predicated on the existence of an underlying breach of
fiduciary duty, the claims rise and fall together. See In re
RadioShack Corp. ERISA Litig., 547 F. Supp. 2d 606, 616 (N.D.
Tex. 2008) (dismissing duty to monitor, co-fiduciary liability,
and conflict of interest claims after dismissing underlying
breach of fiduciary duty claims); Edgar v. Avaya, Inc., No. Civ.
A. 05-3598 SRC, 2006 WL 1084087, at *11-12 (D.N.J. Apr. 25, 2006)
(dismissing duty to monitor and co-fiduciary liability claims
after finding that plaintiff’s complaint failed to state a claim
for breach of fiduciary duty), aff’d, 503 F.3d 340 (3d Cir.
                                 -5-

     The defendants move to dismiss the complaint under Rule

12(b)(6) on several grounds including that Russell is

contractually-barred from bringing this suit because he expressly

waived his right to bring ERISA claims against the defendants in

a severance agreement.   Defs.’ Mot. to Dismiss the Am. Class

Action Compl. (“Defs.’ Mot.”), Mem. of P. & A. in Supp. of Defs.’

Mot. to Dismiss the Am. Class Action Compl. at 40-41.

     On June 19, 2007, Russell executed a severance agreement

(the “Agreement”) with Harman.   Under the Agreement, Russell

agreed to release Harman from any claim of any kind that had

arisen on or before June 19, 2007.     Specifically, the Agreement

states:

     Employee . . . releases and forever discharges the
     Company, its affiliates, and all of their agents
     (collectively, the “Released Parties”) of and from any
     Claim (as defined below) which have arisen on or before
     [June 19, 2007]. . . . As used in this Agreement, the
     term “Claim” means any claim of any kind, including but
     not limited to claims, wages, demands, rights, liens,
     agreements, contracts, covenants, actions, suits,
     causes of action, obligations, debts, costs, expenses,
     attorneys’ fees, damages, judgments, orders and
     liabilities of whatever kind or nature in law, equity
     or otherwise, whether now known or unknown, suspected
     or unsuspected and whether or not concealed or hidden,
     fixed or contingent . . . . The Claims released by
     this Agreement include, but are not limited to,
     . . . any Claims constituting, arising out of, based
     upon, or relating to . . . the Employee Retirement
     Income Security Act[.]




2007). Thus, if Counts One and Two are dismissed, Counts Three
through Six must also be dismissed.
                                 -6-

Defs.’ Mot., Decl. of Jennifer Haring, Ex. 1 (“Agreement”)

¶ 2(a).   In exchange, Harman received several benefits including

severance payments beyond what Russell would have been entitled

to receive otherwise.   Id. ¶ 1(a).

                             DISCUSSION

     A district court can dismiss a complaint under Rule 12(b)(6)

when the defendant shows that the plaintiff “fail[s] to state a

claim upon which relief can be granted[.]”   Fed. R. Civ. P.

12(b)(6).   However, “[w]hen ‘matters outside the pleadings are

presented to and not excluded by the court’ on a motion to

dismiss under Rule 12(b)(6), ‘the motion must be treated as one

for summary judgment.’”   Highland Renovation Corp. v. Hanover

Ins. Grp., 620 F. Supp. 2d 79, 82 (D.D.C. 2009) (quoting Fed. R.

Civ. P. 12(d)).   Since the defendants rely on materials outside

the pleadings, such as the Agreement, the motion to dismiss will

be treated as a motion for summary judgment.

     Summary judgment may be granted when “the movant shows that

there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.”   Fed. R. Civ.

P. 56(c); see also Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir.

2009).    A dispute is “genuine” “where the ‘evidence is such that

a reasonable jury could return a verdict for the non-moving

party,’ a situation separate and distinct from a case where the

evidence is ‘so one-sided that one party must prevail as a matter
                                  -7-

of law.’”   Dozier-Nix v. District of Columbia, 851 F. Supp. 2d

163, 166 (D.D.C. 2012) (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248, 252 (1986)).    “A fact is ‘material’ if a

dispute over it might affect the outcome of a suit under the

governing law[.]”   Holcomb v. Powell, 433 F.3d 889, 895 (D.C.

Cir. 2006) (citing Anderson, 477 U.S. at 248).       To survive a

motion for summary judgment, the nonmoving party “must provide

evidence showing that there is a triable issue as to an element

essential to that party’s claim.”       Arias v. DynCorp, Civil Action

No. 01-1908 (RWR), 2013 WL 864566, at *3 (D.D.C. Feb. 6, 2013)

(internal quotation marks omitted); see also Moore, 571 F.3d at

66.   “In considering a motion for summary judgment, [the court

should draw] all ‘justifiable inferences’ from the evidence . . .

in favor of the nonmovant.”   Cruz-Packer v. District of Columbia,

539 F. Supp. 2d 181, 189 (D.D.C. 2008) (quoting Anderson, 477

U.S. at 255).

I.    INDIVIDUAL CLAIMS

      The defendants allege that Russell is barred from bringing

his individual ERISA claims because in the Agreement he waived

his ERISA claims that arose before June 19, 2007.      Because a

release is an affirmative defense, the defendants bear the burden

of establishing that Russell waived his individual ERISA claims.

See Tech 7 Sys., Inc. v. Vacation Acquisition, LLC, 594 F. Supp.

2d 76, 80 (D.D.C. 2009) (citing Gull Airborne Instruments, Inc.
                                 -8-

v. Weinberger, 694 F.2d 838, 843 (D.C. Cir. 1982)); see also

Anzueto v. Wash. Metro. Area Transit Auth., Civil Action No.

89-553 (JGP), 1992 WL 613240, at *2 (D.D.C. June 9, 1992).      To

prevail, the defendants must show (1) that Russell’s waiver of

his ERISA claims was valid and (2) that the claims in Russell’s

amended complaint arose before June 19, 2007.

     A.   Validity of waiver

          1.   Void as a matter of law

     As a preliminary matter, Russell argues that the Agreement

is void as a matter of law because, under ERISA § 410(a), 29

U.S.C. § 1110(a), “any provision in an agreement or instrument

which purports to relieve a fiduciary from responsibility or

liability for any responsibility, obligation, or duty [is] void

as against public policy.”3    29 U.S.C. § 1110(a).   “As the

legislative history of this provision makes clear, . . .



     3
       Russell also asserts that the release is invalid because
he cannot release his future, unknown ERISA claims. See Pl.’s
Mem. of Law Opposing Defs.’ Mot. to Dismiss the Class Action
Compl. at 42. The Agreement, however, expressly states that
Russell is not waiving future claims. See Agreement ¶ 2(b)
(stating that “in executing this Agreement, [Russell] is not
waiving rights or claims that may arise after the date that this
Agreement becomes effective” (emphasis added)). Moreover, the
cases Russell cites do not support the assertion that employees
can never waive future, unknown ERISA claims. See, e.g., Wright
v. Sw. Bell Tel. Co., 925 F.2d 1288, 1292-93 (10th Cir. 1991)
(finding that an employee had not knowingly and voluntarily
waived his right to bring a future, unknown ERISA claim against
his employer because the release language did not “purport[] to
cover all future claims including claims of which neither party
was aware when executing the release”).
                                  -9-

exculpatory provisions which relieve a fiduciary from liability

for breach of the fiduciary responsibility are to be void and of

no effect.”   Chicago Bd. Options Exch., Inc. v. Conn. Gen. Life

Ins. Co., 713 F.2d 254, 259 (7th Cir. 1983) (internal quotation

marks omitted).   However, “courts generally have not read ERISA

§ 410(a), 29 U.S.C. § 1110(a), as creating a blanket prohibition

of the release of claims for breach of fiduciary duty.”    Boeckman

v. A.G. Edwards, Inc., 461 F. Supp. 2d 801, 808 (S.D. Ill. 2006)

(finding that a broad release of employment liability for “claims

arising out of or related to” ERISA in a severance agreement was

not void under ERISA § 410(a)).    Instead, courts do not apply

ERISA § 410(a) to releases that “merely settle[] an individual

dispute without altering a fiduciary’s statutory duties and

responsibilities.”   In re Schering Plough Corp. ERISA Litig., 589

F.3d 585, 593 (3d Cir. 2009); cf. Leavitt v. Nw. Bell Tel. Co.,

921 F.2d 160, 161-62 (8th Cir. 1990) (explaining that a

settlement of breach of fiduciary duty claims, unlike an

“agreement or instrument” covered in 29 U.S.C. § 1110(a), “does

not relieve a fiduciary of any responsibility, obligation, or

duty imposed by ERISA; instead, it merely settles a dispute that

the fiduciary did not fulfill its responsibility or duty on a

given occasion”).4   Here, the Agreement does not purport to


     4
       Russell cites in his opposition to the defendants’
supplemental memorandum three cases that purportedly support his
assertion that the Agreement is void as a matter of law. The
                                 -10-

relieve the defendants of all of their fiduciary duties.

Instead, it releases the defendants from liability for any ERISA

violations that had arisen at the time the Agreement became

effective.    Accordingly, ERISA § 410(a) does not render Russell’s

release of his individual ERISA claims void as against public

policy.

             2.   Knowing and voluntary waiver

     In general, an employee may sign a general release of his

ERISA claims upon termination of his employment.   See Howell v.

Motorola, Inc., 633 F.3d 552, 558-59 (7th Cir. 2011); Schering

Plough, 589 F.3d at 593-94.    A release of one’s ERISA claims is

valid if it is knowing and voluntary.    Howell, 633 F.3d at 559

(citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 n.15



only case that considers ERISA § 410(a) does not support
Russell’s argument that a release of one’s individual ERISA
claims that have arisen by the date the release becomes effective
is void as a matter of law. Cf. IT Corp. v. Gen. Am. Life Ins.
Co., 107 F.3d 1415, 1418 (9th Cir. 1997) (holding that the
company hired to administer the plaintiff’s ERISA plan could not
generally exonerate itself from any liability in its
administration of the plan). Likewise, Russell has not
established that the other two cases he cites support a finding
that the release in the Agreement is void under ERISA § 410(a).
See Laniok v. Advisory Comm. of Brainerd Mfg. Co. Pension Plan,
935 F.2d 1360, 1366 (2d Cir. 1991) (holding that “an individual
generally may waive the right to participate in a pension plan
governed by ERISA” and rejecting an argument that allowing an
individual to waive his right to participate in an ERISA pension
plan would allow employers to avoid ERISA pension plan
standards); Guidry v. Sheet Metal Workers Nat’l Pension Fund, 493
U.S. 365, 375-77 (1990) (interpreting literally and strictly
ERISA’s statutory prohibition on assignment or alienation of
pension benefits).
                               -11-

(1974)); Rodriguez-Abreu v. Chase Manhattan Bank, N.A., 986 F.2d

580, 587 (1st Cir. 1993); cf. United States v. Trucking

Employers, Inc., 561 F.2d 313, 318 (D.C. Cir. 1977) (stating that

a waiver of one’s rights to bring a claim under Title VII is

valid only if it is “knowing and voluntary”).5

     To determine whether a waiver is knowing and voluntary,

several circuits have adopted a totality of the circumstances

standard.   In those circuits, courts consider factors such as:

     “1) the plaintiff’s education and business experience,
     2) the amount of time the plaintiff had possession of
     or access to the agreement before signing it, 3) the
     role of plaintiff in deciding the terms of the
     agreement, 4) the clarity of the agreement, 5) whether
     the plaintiff was represented by or consulted with an
     attorney, and 6) whether the consideration given in
     exchange for the waiver exceeds employee benefits to
     which the employee was already entitled by contract or
     law.”

Bormann v. AT&T Communic’ns, Inc., 875 F.2d 399, 403 (2d Cir.

1989) (internal quotation marks omitted) (quoting EEOC v. Am.

Express Publ’g Corp., 681 F. Supp. 216, 219 (S.D.N.Y. 1988)).

Although Russell proceeds as though the totality of the

circumstances standard applies in this case, the D.C. Circuit has



     5
       “Courts of appeals routinely apply the same standards to
evaluate Title VII claims as they do . . . ERISA claims.” Brown
v. Brody, 199 F.3d 446, 456 n.10 (D.C. Cir. 1999), abrogated on
other grounds by Steele v. Schafer, 535 F.3d 689 (D.C. Cir.
2008); see also Laniok, 935 F.2d at 1365 (explaining that, while
not identical, “the right of an individual to participate in a
pension plan is analogous to the rights given up when ADEA or
Title VII claims are waived” and finding “the reasoning of the
ADEA and Title VII waiver cases instructive” in an ERISA case).
                               -12-

never adopted that standard and, in the analogous Title VII

context, stated that a waiver is knowing and voluntary if it is

“‘executed freely, without deception or coercion with a full

understanding of what rights are being waived.’”   Trucking

Employers, 561 F.2d at 318 (quoting Garrett v. Moore-McCormack

Co., 317 U.S. 239, 248 (1942)).    For a waiver to be knowing, the

employee must “know[] what he is receiving in return.”    See id.

In determining whether a waiver was voluntary, courts may

consider the “adequacy of the consideration and the nature of

the . . . legal advice available to the [employee] at the time of

signing the release.”   See Garrett, 317 U.S. at 248.

     “[I]t is well established that a person has a duty to read a

contract before he signs it.   If he had the opportunity to read

it, he is bound by its terms regardless of whether he thought he

was signing an actual contract.”   Anzueto v. Wash. Metro. Area

Transit Auth., 357 F. Supp. 2d 27, 30 (D.D.C. 2004).6    Thus, if

the contract states what the employee is waiving and what the

employee is receiving in return for that waiver, “in the absence

of ambiguous language not susceptible to a clear and definite

understanding, or a mutual mistake by the parties,” id. at 30-31,




     6
       The Agreement here states that “[a]ll parties represent
that they have read this Agreement and fully understand all of
its terms[.]” Agreement ¶ 16.
                                -13-

the waiver was knowing.7   Trucking Employers, 561 F.2d at 318;

Anzueto, 357 F. Supp. 2d at 30-31.     For example, in Anzueto, the

court found that the contract was sufficiently clear and that the

plaintiff had knowingly waived his right to pursue Title VII

claims.   There, the waiver highlighted the section title, “Waiver

and Release of Claims,” by capitalizing the title and putting the

words in bold and underlining them.    Anzueto, 357 F. Supp. 2d at

30-31.    The relevant part of the waiver read: “I [hereby] release

and forever discharge WMATA . . . from any and all grievances[,]

. . . contracts, agreements[,] . . . claims, demands, damages,

actions, and causes of action of every kind . . . which arise out

of, or are in any way related to, my employment relationship with

[the employer] and the termination of that relationship.”    Id. at

31 (alterations in original).   The Anzeuto court found that this

language was “very clear and the average person reading it would

undoubtably be able to comprehend the consequences of signing

such a document.”   Id.

     Here, the Agreement highlights the consideration Russell

would receive for signing the agreement by introducing the

section with “Consideration” and underlining the title.    The

Agreement proceeds to describe in clear language the



     7
       Neither side here argues that it “entertained a material
mistake of fact that went to the heart of the bargain.” See
Bituminous Coal Operators’ Ass’n, Inc. v. Connors, 867 F.2d 625,
635 (D.C. Cir. 1989).
                              -14-

consideration Harman would provide Russell.   See Agreement ¶ 1.

For example, the Agreement states that Russell will receive

“severance payments in an amount equal to [his] regular salary”

and stipulates that “these payments are more than what [Russell]

would otherwise be entitled to receive.”    Id. ¶ 1(a).   A section

of the Agreement bearing the underlined title “Release of Known

and Unknown Claims,” states that Russell “releases and forever

discharges the Company . . . of and from . . . any claim of any

kind . . . arising out of, based upon, or relating to . . . the

Employee Retirement Income Security Act.”   Id. ¶ 2(a).    The

Agreement also states that Russell had seven days to consider

whether or not to sign the Agreement, and advises him that “he

should consult an attorney prior to signing it.”   Id. ¶ 15.

Moreover, the Agreement states that Russell “has entered into and

executed [the] Agreement knowingly and voluntarily,” id. ¶ 2(b),

that the “Agreement is written in a manner [that Russell]

understands,” id., and affirms that Russell “executed th[e]

Agreement without coercion or duress of any kind,” id. ¶ 16.

Russell argues generally that the defendants have failed to meet

their burden to show that the Agreement was knowing and

voluntary, but Russell has not shown how the defendants’ evidence

is insufficient to find a knowing and voluntary waiver.    Because

the Agreement states clearly the consideration Russell received

for entering into the Agreement, highlights the rights that
                               -15-

Russell released, uses clear and precise language to describe the

scope of that release, provides that Russell had time to consider

the Agreement, and counsels him to consult an attorney, the

waiver was knowing and voluntary.

     Even under the totality of the circumstances standard, this

waiver was knowing and voluntary.     In Adams v. Phillip Morris,

Inc., 67 F.3d 580 (6th Cir. 1995), the Sixth Circuit found that

an employee’s agreement to waive his Title VII and age

discrimination claims was knowing and voluntary.    The court found

that the employee was aware of his rights, the waiver was plain,

unambiguous, and easy to understand,8 and the employee was given

five days to consider whether to sign the waiver.    Id. at 583.

He was also advised to consult an attorney before doing so.     Id.

The employee also received a more “attractive severance package”

than he would have been entitled to otherwise.    Id.   Here, the

Agreement is silent as to whether Russell was aware of his ERISA

rights.   However, the other factors show that the waiver was


     8
       The waiver provided that the employee
     for and in consideration of severance pay in the amount
     of $32,767.00 payable in form of salary continuation
     . . . and a lump-sum payment of 3,542.00 Dollars for
     accrued but unused vacation, . . . together with
     continued benefit coverage . . . [and] outplacement
     assistance, release, remise and forever discharge
     Philip Morris Companies, Inc. . . . of and from all and
     in all manner of presently existing actions, causes of
     action, suits, debts, claims and demands whatsoever in
     law or equity arising from my employment with the
     Company . . . .
Adams, 67 F.3d at 582 (alterations in original).
                               -16-

knowing and voluntary.   Specifically, the waiver used clear

language, Russell was given seven days -- two more days than the

employee in Adams was given -- to consider the waiver, Russell

was advised to consult an attorney, and he also received a more

generous severance package than he would have received had he not

signed the waiver.

     B.   Scope of release

     Under the Agreement, Russell released the defendants from

all ERISA claims, “whether now known or unknown, suspected or

unsuspected and whether or not concealed or hidden, fixed or

contingent” that had “arisen on or before” June 19, 2007, the

date that the Agreement became effective.   See Agreement ¶ 2(a).

     “[R]eleases are to be treated as contracts, and general

contract principles apply.”   Wolcott v. Ginsburg, 697 F. Supp.

540, 544 (D.D.C. 1988); see also Anzueto, 357 F. Supp. 2d at 30

(stating that a contract purporting to waive a plaintiff’s right

to pursue Title VII claims is analyzed as an ordinary contract).

In the Agreement, the parties specified that the Agreement “will

be construed as a whole in accordance with its fair meaning and

in accordance with the internal laws of the State of Michigan.”

Agreement ¶ 10.   Neither party contests the validity of the

choice of law provision.   Furthermore, “[u]nder American law,

contractual choice-of-law provisions are usually honored.”

Milanovich v. Costa Crociere, S.p.A., 954 F.2d 763, 767 (D.C.
                                -17-

Cir. 1992).   Thus, the Agreement will be construed under Michigan

law.

       Under Michigan law, a court interpreting a contract “is to

discern the parties’ intent by reading the contract as a whole.”

Haring Charter Twp. v. City of Cadillac, 811 N.W.2d 74, 81 (Mich.

Ct. App. 2010); see also Greenville Lafayette, LLC v. Elgin State

Bank, 818 N.W.2d 460, 464 (Mich. Ct. App. 2012) (“The goal of

contract interpretation is to read the document as a whole and

apply the plain language used in order to honor the intent of the

parties.”).   “[A]n unambiguous contract must be enforced as

written unless it violates the law, is contrary to public policy,

or is unenforceable under traditional contract defenses.”

Majestic Golf, L.L.C. v. Lake Walden Country Club, Inc., 823

N.W.2d 610, 621 (Mich. Ct. App. 2012).   “A contract is

unambiguous, even if inartfully worded or clumsily arranged, when

it fairly admits of but one interpretation.”   McCoig Materials,

LLC v. Galui Constr., Inc., 818 N.W.2d 410, 416 (Mich. Ct. App.

2012).   “[T]he failure to define a contractual term does not

render a contract ambiguous.”   Wells Fargo Bank, NA v. Cherryland

Mall Ltd. P’ship, 812 N.W.2d 799, 809 (Mich. Ct. App. 2011);

Haring, 811 N.W.2d at 81 (“Terms are ambiguous only if they

cannot possibly be read together in harmony.”).   “Rather, if a

term is not defined in a contract, [courts] interpret such term

in accordance with its commonly used meaning.”    Wells Fargo Bank,
                                 -18-

812 N.W.2d at 809 (internal quotation marks omitted).     “Every

word, phrase, and clause in a contract must be given effect, and

contract interpretation that would render any part of the

contract surplusage or nugatory must be avoided.”     McCoig

Materials, 818 N.W.2d at 416.

           1. Meaning of “arisen”

     The parties dispute when Russell’s ERISA claims “arose”

within the meaning of the Agreement.      The defendants argue that

the “logical reading” of the Agreement is that Russell released

any claim, known or unknown, that was available as a matter of

law as of June 19, 2007 even if the injury from the legal

violation occurred after that date.     Defs.’ Suppl. Mem. in Supp.

of Their Mot. to Dismiss at 2.    Under the defendants’

interpretation, Russell released the claims pled in his amended

complaint because he alleges that the defendants violated their

fiduciary duties by making false and misleading statements as

early as April 26, 2007.   Russell counters that his ERISA claims

arose when the ERISA statute of limitations began to run for each

claim.   Pl.’s Opp’n to Defs.’ Suppl. Mem. in Supp. of Their Mot.

to Dismiss at 1–2.   He argues that the statute of limitations, 29

U.S.C. § 1113, began to run when he had actual knowledge of the

ERISA breach or violation.9   Id. at 2.    Thus, he concludes that



     9
       Under 29 U.S.C. § 1113(a)(2), ERISA actions must be
commenced within “three years after the earliest date on which
                               -19-

the earliest his claims could have arisen was January 14, 2008

when the price of Harman stock dropped from $68.97 per share to

$43.00 per share and Russell “first could have learned of the

Company’s change in guidance for fiscal year 2008.”     Id. at 3-4.

     The Agreement does not define “arisen.”    While both parties’

interpretations of “arisen” comport with its commonly used

meanings,10 the Agreement allows only the defendants’

interpretation of “arisen.”   In the Agreement, Russell released

any claim of any kind “whether now known or unknown, suspected or

unsuspected and whether or not concealed or hidden, fixed or

contingent.”   Agreement ¶ 2(a).   Russell contends that a claim

has not arisen within the meaning of the Agreement until he had

actual knowledge of the breach or violation.   However, Russell’s

interpretation of “arisen” would render nugatory the portion of

the contract that purports to release “unknown,” “unsuspected,”

and “contingent” claims of any kind.   Because, the defendants’

interpretation of the contract is in line with a common use of

“arisen” and is the logical proffered interpretation of “arisen”




the plaintiff had actual knowledge of the breach or violation.”
29 U.S.C. § 1113(a)(2).
     10
       Black’s Law Dictionary defines “arise” as: “1. To
originate; to stem (from)”; “2. To result (from)”; “3. To emerge
in one’s consciousness; to come to one’s attention”; “4. (Of a
court) to adjourn; to suspend sitting.” Black’s Law Dictionary
(9th ed. 2009).
                               -20-

in context, Russell’s claims that were available as a matter of

law as of June 19, 2007, whether known or unknown, were released.

          2.   When a breach of a fiduciary duty cause of action
               under ERISA is available as a matter of law

     Russell’s amended complaint alleges that the defendants

breached their ERISA fiduciary duties of loyalty and prudence in

part by failing to “convey complete and accurate information

material to the circumstances of Participants and beneficiaries.”

Am. Compl. ¶ 166(c).   The duty of loyalty requires a fiduciary to

“discharge his duties with respect to a plan solely in the

interest of the participants and beneficiaries and -- (A) for the

exclusive purpose of: (i) providing benefits to participants and

their beneficiaries; and (ii) defraying reasonable expenses of

administering the plan[.]”   29 U.S.C. § 1104(a)(1).   The duty of

loyalty “includes a duty to disclose material information . . .

and deceptive conduct, such as lying, is clearly inconsistent

with the duty of loyalty owed by an ERISA fiduciary.”   Int’l Bhd.

of Painters & Allied Trades Union & Indus. Pension Fund v. Duval,

925 F. Supp. 815, 821 (D.D.C. 1996); see also Varity Corp. v.

Howe, 516 U.S. 489, 506 (1996).   The duty of prudence requires

that a fiduciary act “with the care, skill, prudence, and

diligence under the circumstances then prevailing that a prudent

man acting in a like capacity and familiar with such matters

would use in the conduct of an enterprise of a like character and

with like aims.”   29 U.S.C. § 1104(a)(1)(B).   For instance, a
                                -21-

fiduciary has a duty to make prudent investments.    Fink v. Nat’l

Sav. & Trust Co., 772 F.2d 951, 955 (D.C. Cir. 1985).    Russell

claims that the defendants violated these fiduciary duties by

making materially false statements regarding the MyGiG radios,

PNDs, and Harman’s overall financial health, and by allowing

participants in the Plan to continue to invest in Harman common

stock despite knowing or recklessly disregarding Harman’s

declining financial position.

     A breach of fiduciary duty claim is available when a

fiduciary completes the action that violates one of the duties

that ERISA requires.   “[A] plaintiff need not suffer harm (i.e.,

be denied pension benefits) before he becomes entitled to bring

an action under 29 U.S.C. § 1104(a).”   Larson v. Northrop Corp.,

21 F.3d 1164, 1171 (D.C. Cir. 1994) (citing Ziegler v. Conn. Gen.

Life Ins. Co., 916 F.2d 548, 551-52 (9th Cir. 1990)).    Thus, for

example, a claim based on a breach of duty of loyalty is

available when the fiduciary makes a material misrepresentation

and a claim based on a breach of duty of prudence is available

when the fiduciary makes the imprudent investment.   Russell

alleges that the defendants made false and misleading statements

to the Plan participants and made imprudent investments as early

as April 26, 2007.   Thus, Russell’s ERISA claims were available

before June 19, 2007 and thus had “arisen” when Russell executed

the Agreement releasing his ERISA claims.   Accordingly, Russell
                               -22-

is contractually barred from bringing on his own behalf the ERISA

claims alleged in his amended complaint.

II.   CLAIMS BROUGHT ON BEHALF OF PLAN PARTICIPANTS

      The defendants argue that Russell lacks standing under

Article III of the U.S. Constitution to bring ERISA claims on

behalf of Plan participants because these claims are not

redressable.11

      To establish Article III standing, a party must
      establish three constitutional minima: (1) that the
      party has suffered an “injury in fact,” (2) that the
      injury is “fairly traceable” to the challenged action
      of the defendant, and (3) that it is “likely, as
      opposed to merely speculative, that the injury will be
      redressed by a favorable decision.”

Grocery Mfrs. Ass’n v. EPA, 693 F.3d 169, 174 (D.C. Cir. 2012)

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

(1992)).   “[A] plaintiff’s injury is redressable when ‘the relief

sought, assuming that the court chooses to grant it, will likely

alleviate the particularized injury’ that is being alleged.”

Renal Physicians Ass’n v. Dep’t of Health & Human Servs., 422 F.

Supp. 2d 75, 82 (D.D.C. 2006) (quoting Fl. Audubon Soc’y v.

Bentsen, 94 F.3d 658, 663-64 (D.C. Cir. 1996)).



      11
       The defendants raise this standing argument for the first
time in their reply brief. Although courts generally “[do] not
consider arguments raised for the first time in the reply,” Gen.
Carbon Co., a Div. of St. Mary’s Carbon Co. v. OSHRC, 854 F.2d
1329, 1330 (D.C. Cir. 1988) (per curiam), “[b]ecause standing is
a jurisdictional doctrine, . . . district court[s are], of
course, obliged to consider the issue sua sponte,” Catholic Soc.
Serv. v. Shalala, 12 F.3d 1123, 1125 n.2 (D.C. Cir. 1994).
                                 -23-

     A pension benefit plan participant must have standing to

bring a breach of fiduciary duty claim under ERISA on behalf of

pension benefit plan participants.      See Evans v. Akers, 534 F.3d

65, 69-70 (1st Cir. 2008).   Generally, a plan participant’s

breach of fiduciary duty claim brought on behalf of defined

contribution plan participants is redressable because any

recovery under Section 502(a)(2) may eventually be received by

the participant even though the recovery “might first go to the

defined contribution plan rather than directly to the plaintiff.”

See Harris v. Amgen, Inc., 573 F.3d 728, 735-36 (9th Cir. 2009)

(citing Evans, 534 F.3d at 74-75; In re Mut. Funds Inv. Litig.,

529 F.3d 207, 210 (4th Cir. 2008); Harzewski v. Guidant Corp.,

489 F.3d 799, 803 (7th Cir. 2007)).

     Russell’s amended complaint alleges that “[a]s a result of

Defendants’ fiduciary breaches, . . . the Plan has suffered

substantial losses, resulting in the depletion of millions of

dollars of retirement savings and anticipated retirement income

of the Plan’s Participants.”     Am. Compl. ¶ 5.   Russell brings his

action to “seek[] losses to the Plan” caused by the defendants’

fiduciary breaches.   Id. ¶ 4.    The defendants contend that under

the Agreement, Russell “relinquish[ed] his right to recover

‘damages, judgments, orders, and liabilities of whatever kind in

law or equity.’”   Defs.’ Reply Respecting Their Suppl. Mem. in

Supp. of Their Mot. to Dismiss at 7 (quoting Agreement ¶ 2(a)).
                                -24-

The defendants further contend that because the release prohibits

Russell “from obtaining the personal, individual benefit” of any

recovery for his ERISA claims, he lacks standing to bring any

claims on behalf of Plan participants because he released his

right to any recovery even if his plan claims are successful.

See Defs.’ Reply Br. in Supp. of Defs.’ Mot. to Dismiss the Am.

Class Action Compl. at 21.   Russell does not dispute this

interpretation.   Moreover, the plain language of the contract

supports this broad interpretation.    See Agreement ¶ 2(a)

(stating that Russell “releases and forever discharges” the

defendants from all “damages, judgments, orders and liabilities

of whatever kind or nature in law, equity or otherwise”).     Thus,

Russell waived his right to recover any losses that may accrue as

a result of his suit.   Because Russell waived his right to

recover relief from the defendants, he lacks standing to bring

claims on behalf of Plan participants because the court cannot

grant Russell any relief to redress the alleged injuries.

                             CONCLUSION

     Russell released the ERISA claims alleged in his amended

complaint brought in an individual capacity and lacks Article III

standing to bring ERISA claims on behalf of Plan participants.

Accordingly, the defendants’ motion to dismiss, treated as a

motion for summary judgment, will be granted.   A final Order

accompanies this Memorandum Opinion.
                          -25-

SIGNED this 22nd day of May, 2013.



                                /s/
                         RICHARD W. ROBERTS
                         United States District Judge
