                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


CHRISTOPHER M. SULYMA, and all            No. 17-15864
others similarly situated,
                   Plaintiff-Appellant,      D.C. No.
                                          5:15-cv-04977-
                  v.                            NC

INTEL CORPORATION INVESTMENT
POLICY COMMITTEE; FINANCE                   OPINION
COMMITTEE OF THE INTEL
CORPORATION BOARD OF
DIRECTORS; INTEL RETIREMENT
PLANS ADMINISTRATIVE
COMMITTEE; CHARLENE
BARSHEFSKY; FRANK D. YEARY;
JAMES D. PLUMMER; REED E.
HUNDT; SUSAN L. DECKER; JOHN J.
DONAHOE; DAVID S. POTTRUCK;
RAVI JACOB; INTEL 401(K) SAVINGS
PLAN; INTEL RETIREMENT
CONTRIBUTION PLAN,
              Defendants-Appellees.



      Appeal from the United States District Court
         for the Northern District of California
   Nathanael M. Cousins, Magistrate Judge, Presiding

        Argued and Submitted October 18, 2018
              San Francisco, California
2         SULYMA V. INTEL CORP. INV. POLICY COMM.

                    Filed November 28, 2018

    Before: J. Clifford Wallace and Susan P. Graber, Circuit
         Judges, and Robert S. Lasnik, * District Judge.

                   Opinion by Judge Wallace


                          SUMMARY **


          Employee Retirement Income Security Act

    The panel reversed the district court’s grant of summary
judgment in favor of the defendants in an ERISA action on
the ground that the limitations period had expired.

    A former employee and participant in Intel’s retirement
plans sued the company for allegedly investing retirement
funds in violation of ERISA section 1104. The district court
concluded that the employee had the requisite “actual
knowledge” to trigger ERISA’s three-year limitations
period, 29 U.S.C. § 1113(2).

    The panel held that a two-step process is followed in
determining whether a claim is barred by section 1113(2).
First, the court isolates and defines the underlying violation
on which the plaintiff’s claim is founded. Second, the court
inquires whether the plaintiff had “actual knowledge” of the
alleged breach or violation. The panel held that actual

      *
     The Honorable Robert S. Lasnik, United States District Judge for
the Western District of Washington, sitting by designation.
    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
       SULYMA V. INTEL CORP. INV. POLICY COMM.              3

knowledge does not mean that a plaintiff had knowledge that
the underlying action violated ERISA, nor does it merely
mean that a plaintiff had knowledge that the underlying
action occurred. Rather, the defendant must show that the
plaintiff was actually aware of the nature of the alleged
breach more than three years before the plaintiff’s action was
filed. In an ERISA section 1104 case, the plaintiff must have
been aware that the defendant had acted and that those acts
were imprudent. Disagreeing with the Sixth Circuit, the
panel held that the plaintiff must have actual knowledge,
rather than constructive knowledge.

    The panel concluded that disputes of material fact as to
the plaintiff’s actual knowledge precluded summary
judgment, and remanded the case to the district court for
further proceedings.


                        COUNSEL

Matthew W.H. Wessler (argued), Jonathan E. Taylor, and
Rachel Bloomekatz, Gupta Wessler PLLC, Washington,
D.C.; Joseph A. Creitz, Creitz & Serebin LLP, San
Francisco, California; Ryan T. Jenny and Gregory Y. Porter,
Bailey & Glasser LLP, Washington, D.C.; R. Joseph Barton,
Block & Leviton LLP, Washington, D.C.; for Plaintiff-
Appellant.

John J. Buckley Jr. (argued), Juli Ann Lund, David S.
Kurtzer-Ellenbogen, and Daniel F. Katz, Williams &
Connolly LLP, Washington, D.C.; Scott P. Cooper,
Proskauer Rose LLP, Los Angeles, California; Myron D.
Rumeld, Proskauer Rose LLP, New York, New York; for
Defendants-Appellees.
4        SULYMA V. INTEL CORP. INV. POLICY COMM.

                              OPINION

WALLACE, Circuit Judge:

     A former employee and participant in Intel’s retirement
plans sued the company for allegedly investing retirement
funds in violation of the Employee Retirement Income
Security Act (ERISA). Intel moved to dismiss the complaint
on the ground that the limitations period for his claims had
expired. The magistrate judge 1 converted Intel’s motion to
dismiss into a motion for summary judgment and entered
summary judgment in favor of Intel. The employee now
appeals, arguing that the district court erred by concluding
he had the requisite “actual knowledge” required by ERISA
to trigger the limitations period. We have jurisdiction under
28 U.S.C. § 1291, and we reverse.

                                    I.

    Christopher Sulyma worked at Intel between 2010 and
2012 and participated in two of Intel’s retirement plans, both
governed by ERISA. The first was the Intel Retirement Plan,
also known as the Intel Retirement Contribution Plan. The
second was the Intel 401(k) Savings Plan.

    Sulyma’s account performance depended in part on
investment decisions controlled by Intel, through the
performance of different Intel “funds.” Sulyma’s Retirement
Plan account was invested in the Intel Global Diversified
Fund. Sulyma’s Savings Plan account was invested in the
Intel Target Date 2045 Fund. The Funds were managed by
an Intel investment committee responsible for choosing and
managing the Funds’ asset allocations. The investment

    1
      The parties consented to the jurisdiction of a magistrate judge. See
28 U.S.C. § 636.
        SULYMA V. INTEL CORP. INV. POLICY COMM.              5

committee members were appointed and supervised by a
finance committee formed by members of the Intel Board of
Directors. A third administrative committee was responsible
for disclosing information about the Plans to plan
participants. This opinion refers to these various groups as
“Intel” unless the context otherwise requires.

    When the Funds were established, they did not include
significant “alternative investments,” such as hedge funds.
Intel increased the Funds’ alternative investments to reduce
the investment risk to the funds through greater
diversification. But the reduction in investment risk came at
the cost of higher fees and lower performance during periods
of strong returns in the equity market. When equity markets
did in fact begin to improve after the Great Recession, the
Funds’ performances lagged compared to index funds and
comparable portfolios. Intel disclosed these investment
decisions to Sulyma through various documents hosted on
two websites. The documents disclosed both the fact of the
alternative investments and the basic strategy behind the
decision to invest in them. For instance, “Fund Fact Sheets”
created in 2010 disclosed that the 2045 Fund was invested
more in hedge funds than comparable portfolios, and that it
was not performing as well as a result. Sulyma accessed
some of this information on the websites, but he testified that
he was not actually aware that his retirement accounts were
invested in alternative investments while working at Intel.

     Sulyma alleges that he eventually learned about the
Funds’ poor performance; he thereafter filed this action
against Intel on October 29, 2015, raising six claims. His
first and third claims alleged that the investment committee
violated 29 U.S.C. § 1104 by imprudently investing in
alternative investments. His second and fourth claims
alleged that the administrative committee violated 29 U.S.C.
6        SULYMA V. INTEL CORP. INV. POLICY COMM.

§ 1104 and 29 C.F.R. § 2250.404a-5(a) by failing to disclose
adequately information about the alternative investments.
His fifth claim alleged that the finance committee violated
29 U.S.C. § 1104 by failing to monitor the investment and
administrative committees. His sixth claim alleged that all
defendants were liable for knowing of the other defendants’
ERISA violations and failing to remedy them.

    Intel moved to dismiss the complaint as time-barred
under 29 U.S.C. § 1113(2), which provides that an action
under section 1104 may not be commenced more than “three
years after the earliest date on which the plaintiff had actual
knowledge of the breach or violation.” The district court
converted the motion to dismiss into a motion for summary
judgment and ordered discovery limited to the statute of
limitations issue. After discovery, the district court ruled that
there was no dispute of material fact that Sulyma had actual
knowledge of the alternative investments more than three
years before filing this action, and entered summary
judgment in favor of Intel. Sulyma appeals, arguing that the
district court applied the wrong standard of “actual
knowledge” to his imprudent investing and derivative
liability claims. 2

                                   II.

    We review a district court’s summary judgment de novo.
Curley v. City of North Las Vegas, 772 F.3d 629, 631 (9th
Cir. 2014). “We must determine, viewing the evidence in the
light most favorable to the nonmoving party, whether there


    2
      The district court also granted summary judgment to Intel on
Sulyma’s failure-to-disclose claims. Sulyma has not appealed that ruling,
and therefore we do not address it.
        SULYMA V. INTEL CORP. INV. POLICY COMM.               7

are any genuine issues of material fact and whether the
district court correctly applied the substantive law.” Id.

                              III.

    ERISA imposes “a duty of care with respect to the
management of existing trust funds, along with liability for
breach of that duty, upon plan fiduciaries.” Lockheed Corp.
v. Spink, 517 U.S. 882, 887 (1996). Fiduciaries are required
to act “solely in the interest of the participants and
beneficiaries” and must exercise “the care, skill, prudence,
and diligence . . . that a prudent man acting in a like capacity
and familiar with such matters would use.” 29 U.S.C.
§ 1104(a)(1). A claim that an ERISA fiduciary has breached
this prudent investor rule must be brought within six years
after “the date of the last action which constituted a part of
the breach or violation,” or within three years after “the
earliest date on which the plaintiff had actual knowledge of
the breach or violation.” Id. § 1113.

    Sulyma initiated this action on October 29, 2015, and
Intel has not argued that he did so beyond the six-year
limitations period. The only issue on appeal is, therefore,
whether Sulyma had “actual knowledge of the breach or
violation” beyond the three-year limitations period, i.e.,
before October 29, 2012. Because there has been some
confusion in our case law over the scope of the “actual
knowledge” standard, we begin by explaining what it means
for a plaintiff to have actual knowledge of a breach. We then
apply that standard to each of Sulyma’s claims.

                              A.

    We follow a two-step test to determine whether a claim
is barred by section 1113(2). Ziegler v. Conn. Gen. Life Ins.
Co, 916 F.2d 548, 550 (9th Cir. 1990). First, we “isolate and
8      SULYMA V. INTEL CORP. INV. POLICY COMM.

define the underlying violation upon which [the] plaintiff’s
claim is founded.” Id. at 551 (alterations omitted) (quoting
Meagher v. Int’l Ass’n of Machinists & Aerospace Workers
Pension Plan, 856 F.2d 1418, 1422 (9th Cir. 1988)). Second,
we “inquire when [the plaintiff] had ‘actual knowledge’ of
the alleged breach or violation.” Id. at 552 (emphasis
omitted) (quoting 29 U.S.C. § 1113(2)). “This inquiry into
[the] plaintiff[’s] actual knowledge is entirely factual,
requiring examination of the record. Identifying the breach
may end the analysis in cases where the breach coincides
with an ERISA plaintiff’s actual knowledge of the breach.”
Id.

    ERISA does not define “knowledge” or “actual
knowledge.” See 29 U.S.C. § 1002. But when Congress first
enacted ERISA in 1974, section 1113 contained two kinds
of knowledge requirement, actual knowledge and
constructive knowledge. 29 U.S.C. § 1113(a)(2) (1976). The
actual knowledge provision was identical to current
section 1113(2), but the constructive knowledge provision
provided that an action could not be commenced more than
three years after the earliest date “on which a report from
which [the plaintiff] could reasonably be expected to have
obtained knowledge of such breach or violation was filed
with the secretary under this title.” Id. § 1113(a)(2)(B)
(1976). Congress repealed the constructive knowledge
provision in 1987, leaving only the actual knowledge
requirement. Omnibus Budget Reconciliation Act of 1987,
Pub. L. No. 100-203, § 9342(b), 101 Stat. 1330. Since that
time, the Supreme Court has not provided an authoritative
construction for section 1113(2). See Tibble v. Edison Int’l,
135 S. Ct. 1823 (2015). Our own interpretations have
likewise not always been straightforward, leading to some
confusion in our district courts over what “actual
knowledge” entails. See, e.g., In re Northrop Grumman
        SULYMA V. INTEL CORP. INV. POLICY COMM.               9

Corp. ERISA Litigation, 2015 WL 10433713, at *20 n.140
(C.D. Cal. Nov. 24, 2015) (“The court acknowledges that it
is difficult to harmonize Waller [v. Blue Cross of
California]’s holding with the rule announced in Blanton [v.
Anzalone]”). Faced with this confusion, we begin our
analysis by carefully examining our past cases to determine
the meaning of “actual knowledge” in this circuit.

    We first interpreted section 1113 in Blanton v. Anzalone,
760 F.2d 989 (9th Cir. 1985), decided before the 1987
amendment. In that case, the beneficiary of an ERISA plan
account sued the plan’s trustees. Id. at 991. The beneficiary
alleged that the trustees breached their fiduciary duties by
renting a building allegedly owned by the account to a
corporation, of which the trustees were officers and
shareholders. Id. The trustees counterclaimed for a
declaration that the account did not have any interest in the
building, arguing that the transaction that placed the interest
in the beneficiary’s account was void under 29 U.S.C.
§ 1106. Id. We held that the trustees’ counterclaim was
barred by section 1113 because the transaction took place in
September 1977, more than three years prior to the action’s
commencement in June 1981. Id. In reaching our holding,
we reasoned that the trustees “had actual knowledge of the
transaction at the time it took place because they, as trustees,
were parties to the transaction, and they . . . actually made
the decision to undertake the transaction.” Id. We rejected
the trustees’ argument that they “did not have actual
knowledge of the violation until their attorney advised them
that the transaction was prohibited” because section 1113 “is
triggered by the [trustees’] knowledge of the transaction that
constituted the alleged violation, not by their knowledge of
the law.” Id. at 991–92.
10      SULYMA V. INTEL CORP. INV. POLICY COMM.

    We relied on Blanton in Meagher, 856 F.2d at 1423. In
that case, the plaintiff was the beneficiary of an International
Association of Machinists pension. Id. at 1419–20. The
Association voted to amend the pension plan, reducing the
plaintiff’s benefits. Id. at 1420. The plaintiff retired in 1977
and began receiving checks with the reduced amount. Id. at
1419. In 1986, he filed an ERISA action under 29 U.S.C.
§ 1054. Id. at 1419, 1421. We held that the amendment was
ineffective, and that every application of the amendment in
the form of a reduced check constituted a violation of
ERISA. Id. at 1423. We then quoted Blanton’s rule that the
“statute of limitations is triggered by [a claimant’s]
knowledge of the transaction that constituted the alleged
violation, not by [his] knowledge of the law,” and concluded
that every time the plaintiff received a reduced check “he had
knowledge of the transaction, though he may not have
known at the time that the reduction in benefits was unlawful
under ERISA.” Id. (alterations in original). Applying that
reasoning, we held that the plaintiff had timely brought
claims only for checks issued within the three years before
he filed the action. Id.

    Meagher applied the pre-1987 version of section 1113.
Our first case interpreting the amended section was Ziegler,
916 F.2d 548. In that case, pension plan administrators
contracted with an insurance company to invest the
pension’s funds. Id. at 549. The contract provided that, upon
termination of the agreement, the insurance company would
transfer the funds according to one of two options, a “book
value” over five years, or a “market value” in a lump sum
that adjusted the amount based on the insurance company’s
“market value formula.” Id. The administrators opted for the
lump sum, but then sued the insurance company under
sections 1104 and 1106 for retaining the “market value”
adjustment. Id. at 550. We held that the administrators’
        SULYMA V. INTEL CORP. INV. POLICY COMM.              11

action was time-barred, reasoning that they had actual
knowledge of the ERISA violation when the insurance
company informed them that selection of the “market value”
option would result in the insurance company’s retaining a
substantial portion of pension funds. Id. at 552. This holding
was consistent with Blanton and Meagher, although Ziegler
did not cite those cases in its analysis of actual knowledge.
See id.

    We next interpreted section 1113 in Phillips v. Alaska
Hotel & Restaurant Employees Pension Fund, 944 F.2d 509
(9th Cir. 1991). In that case, pension plan contributors sued
the pension fund administrators under section 1104 for
maintaining restrictive vesting requirements that excluded
many contributors from obtaining benefits. Id. at 512. The
plaintiffs had actual knowledge of the restrictive vesting
requirements more than three years before they filed the
action, but the district court nonetheless held that section
1113 was not a bar because the failure to relax the vesting
requirement was a “continuing breach.” Id. at 520. We
reversed, holding that actual knowledge is “measured from
the ‘earliest date’ on which [the plaintiff] knew of the
breach.” Id. We reasoned that, although a “continuous series
of breaches may allow a plaintiff to argue that a new cause
of action accrues with each new breach . . . [,] if the breaches
are of the same kind and nature and the plaintiff had actual
knowledge of one of them more than three years before
commencing suit, [section 1113] bars the action.” Id. at 521.
A different rule, we explained, “essentially reads the ‘actual
knowledge’ standard out of the statute.” Id. at 520.

    The foregoing cases establish that knowledge of
illegality under ERISA is not required to trigger section
1113’s three-year limitations period. Instead, knowledge of
the allegedly illegal action or transaction can be sufficient.
12     SULYMA V. INTEL CORP. INV. POLICY COMM.

However, none of these cases squarely held that knowledge
of the transaction alone was sufficient “actual knowledge”
under the statute. Rather, in each case the plaintiffs were
parties to the transaction, Blanton, 760 F.2d at 991, or were
specifically informed by the plan administrator of the action,
see Ziegler, 916 F.2d at 552; Meagher, 856 F.2d at 1421, or
actual knowledge of the breach was not at issue, Phillips,
944 F.2d at 520–21.

    We first addressed whether knowledge of the underlying
transaction was necessarily sufficient to trigger the three-
year limitations period in Waller v. Blue Cross of California,
32 F.3d 1337 (9th Cir. 1994). In that case, retirement plan
participants sued plan administrators under section 1104 for
terminating the plan, using plan assets to purchase annuities
on behalf of the participants, and retaining the remaining
assets. Id. at 1338. The administrators moved to dismiss the
complaint as time-barred, arguing that the three-year
limitations period began to run as soon as the plaintiffs
learned about the purchase of annuities. Id. at 1340–41. We
rejected that argument, reasoning that “[w]e decline to
equate knowledge of the purchase of annuities in this case
with actual knowledge of the alleged breach of fiduciary
duty,” and we favorably quoted the D.C. Circuit rule that
“[t]he disclosure of a transaction that is not inherently a
statutory breach of fiduciary duty cannot communicate the
existence of an underlying breach.” Id. at 1341 (alteration
omitted) (quoting Fink v. Nat’l Sav. & Trust Co., 772 F.2d
951, 957 (D.C. Cir. 1985)). Although in some tension with
our previous cases, Waller’s holding did not conflict with the
holdings in those cases because Waller considered only
whether knowledge of the underlying transaction alone
triggers section 1113(2). As previously explained, our earlier
cases, while perhaps suggesting that rule, never squarely
adopted it. Waller was thus the first case to consider whether
        SULYMA V. INTEL CORP. INV. POLICY COMM.             13

“actual knowledge of the breach” means only knowledge of
the underlying transaction, and it established that actual
knowledge must mean something more, at least in cases in
which the underlying transaction does not disclose the nature
of the breach.

    The lesson we draw from these cases is thus two-fold.
First, “actual knowledge of the breach” does not mean that a
plaintiff has knowledge that the underlying action violated
ERISA. Blanton, 760 F.2d at 992. Second, “actual
knowledge of the breach” does not merely mean that a
plaintiff has knowledge that the underlying action occurred.
Waller, 32 F.3d at 1341. “Actual knowledge” must therefore
mean something between bare knowledge of the underlying
transaction, which would trigger the limitations period
before a plaintiff was aware he or she had reason to sue, and
actual legal knowledge, which only a lawyer would normally
possess.

    This leads us to the question of what this extra
“something” must entail. In light of the statutory text and our
case law, we conclude that the defendant must show that the
plaintiff was actually aware of the nature of the alleged
breach more than three years before the plaintiff’s action is
filed. The exact knowledge required will thus vary
depending on the plaintiff’s claim. For instance, in a
section 1104 case, the plaintiff must be aware that the
defendant has acted and that those acts were imprudent. See,
e.g., Waller, 32 F.3d at 1341. But in, for example, a
section 1106 case, the plaintiff need only be aware that the
defendant has engaged in a prohibited transaction, because
knowledge of the transaction is all that is necessary to know
that a prohibited transaction has occurred. See, e.g., Blanton,
760 F.2d at 991–92. This interpretation is consistent with our
statement in Ziegler that “[i]dentifying the breach may end
14      SULYMA V. INTEL CORP. INV. POLICY COMM.

the analysis in cases where the breach coincides with an
ERISA plaintiff’s actual knowledge of the breach,” 916 F.2d
at 552, reconciles what could appear to be conflicting rules
in Blanton and Waller, and flows naturally from
section 1113(2)’s text: “three years after the earliest date on
which the plaintiff had actual knowledge of the breach or
violation.” (Emphasis added.) The key is that, whatever the
underlying ERISA claim, the limitations period begins to run
once the plaintiff has sufficient knowledge to be alerted to
the particular claim.

    In reaching this holding, we emphasize that for a plaintiff
to have sufficient knowledge to be alerted to his or her claim,
the plaintiff must have actual knowledge, rather than
constructive knowledge. As we explained in the Digital
Millennium Copyright Act context, “[t]he statutory phrase
‘actual knowledge’ means what it says: knowledge that is
actual, not merely a possible inference from ambiguous
circumstances.” Ventura Content, Ltd. v. Motherless, Inc.,
885 F.3d 597, 609 (9th Cir. 2018), cert. denied, 2018 WL
4031239 (U.S. Oct. 29, 2018) (No. 18-235). The text of
section 1113 uses this statutory phrase, and Congress
removed the constructive knowledge provision from the
statute in 1987. This amendment strongly suggests that
Congress intended for only an actual knowledge standard to
apply. Thus, as in Ventura, we hold that the phrase “actual
knowledge” means the plaintiff is actually aware of the facts
constituting the breach, not merely that those facts were
available to the plaintiff. To prevail on a statute of
limitations defense on a section 1104 claim, as here,
therefore, the defendant must show that there is no dispute
of material fact that the plaintiff was actually aware that the
defendant acted imprudently.
        SULYMA V. INTEL CORP. INV. POLICY COMM.             15

    We recognize that this understanding of actual
knowledge conflicts with the Sixth Circuit’s reasoning in
Brown v. Owens Corning Investment Review Committee,
622 F.3d 564, 571 (6th Cir. 2010). In that case, the Sixth
Circuit held that, “[w]hen a plan participant is given specific
instructions on how to access plan documents, their failure
to read the documents will not shield them from having
actual knowledge of the documents’ terms.” Id. We
respectfully disagree with that analysis. As we have
previously recognized, “plan participants who have been
provided with [summary plan descriptions] are charged with
constructive knowledge of the contents of the document,”
not actual knowledge. See Scharff v. Raytheon Co. Short
Term Disability Plan, 581 F.3d 899, 908 (9th Cir. 2009)
(emphasis added). We would therefore characterize the
plaintiff described in Brown as having constructive
knowledge only. Under our interpretation of ERISA, such
knowledge is insufficient.

    We also recognize Intel’s argument that there are “strong
policy reasons” to conclude that “actual knowledge” has a
broader meaning, including knowledge that a plaintiff can
glean from corporate disclosures. However, we are not
persuaded that Intel’s proffered policy reasons have force in
this context. To begin with, Sulyma might just as easily
argue that there are “strong policy reasons” to interpret
actual knowledge narrowly, such as to promote fiduciary
accountability. Which way the policy rationale cuts depends
on the person making the argument. Second, and more
fundamentally, weighing the policy merits of different
knowledge standards was for Congress to undertake when it
enacted, and then amended, section 1113, not for this court.
Our task is not to make policy decisions, but to interpret the
statute as enacted. Although policy reasoning may be
relevant to our interpretation of the statute when grounded in
16     SULYMA V. INTEL CORP. INV. POLICY COMM.

ERISA’s text or other congressional intent, Intel has not
provided us with any such reasoning. We therefore hold that
section 1113 means what it says: to trigger the three-year
limitations period, a plaintiff must have “actual knowledge
of the breach or violation.”

                             B.

    Applying this standard de novo to Sulyma’s appealed
claims, we conclude that the district court erred by entering
summary judgment in favor of Intel.

                             1.

    Sulyma’s first claim alleged that the investment
committee violated section 1104 by “adopting an asset
allocation model such that the Intel [Target Date Fund
portfolios] were and are comprised of approximately 20–
25% Hedge Funds, 4–5% commodities, and where
international equities account for over 50% of equity
holdings.” Sulyma alleged that this selection was unduly
risky and that Intel acted imprudently by disregarding those
risks or by insufficiently considering them before acting.
Sulyma’s third claim similarly alleged that the investment
committee violated section 1104 by “increas[ing] the
Diversified Fund’s allocations to hedge funds and private
equity and add[ing] allocations to commodities, resulting in
22.23% of fund assets, approximately $1.2 billion, allocated
to these alternative investments.” Sulyma alleged that, “[b]y
the end of 2013, the Investment Committee had caused the
Diversified Fund to allocate 36.71%, $2.33 billion, to such
alternative investments.” As with his first claim, Sulyma
alleged that this selection was unduly risky and that the
investment committee acted imprudently by disregarding or
insufficiently considering those risks.
        SULYMA V. INTEL CORP. INV. POLICY COMM.             17

    Intel argues that Sulyma had actual knowledge of this
alleged breach because it disclosed information about plan
asset allocation and the investment strategy behind that
allocation before October 29, 2012. Intel points to Fund Fact
Sheets in 2010, 2011, and 2012, a 2011 Qualified Default
Investment Alternative Notice, a 2012 Summary Plan
Description, 2012 Annual Disclosures, and several
disclosures on Intel’s website that explained Intel’s
alternative investments, the strategy behind those
investments, and possible risks. Intel argues that, by
disclosing the mix of investments that Sulyma claims was
imprudent, along with the costs and benefits of such an
approach, Sulyma had “actual knowledge of the breach.”

    We agree that Intel’s evidence demonstrates that Sulyma
had sufficient information available to him to know about
the allegedly imprudent investments before October 29,
2012. However, that is insufficient. Because Sulyma brought
a claim under section 1104, he was required to have actual
knowledge both that those investments occurred, and that
they were imprudent. But Sulyma declared that he was
“unaware that the monies that [he] had invested through the
Intel retirement plans had been invested in hedge funds or
private equity” and that he did “not recall seeing any
documents during [his] employment at Intel that alerted
[him] to the fact that [his] retirement monies were
significantly invested in hedge funds or private equity.”
Sulyma also testified that he was unaware of documents
making these disclosures when specifically deposed on this
point. These statements created a dispute of material fact that
precluded summary judgment on these claims. On this
record, only a fact-finder could have determined that Sulyma
had the requisite “actual knowledge of the breach” for
section 1113(2) to bar the action.
18      SULYMA V. INTEL CORP. INV. POLICY COMM.

                              2.

    Sulyma also appeals from the district court’s summary
judgment on his derivative liability claims. Sulyma’s fifth
claim alleged that the finance committee violated
section 1104 by failing to monitor the performance of the
investment committees responsible for making the allegedly
imprudent investment allocations. Sulyma’s sixth claim
alleged that all defendants violated section 1105 by knowing
of the other defendants’ breaches and taking no steps to
remedy them.

    Sulyma argues that the limitations period for his
derivative claims could not begin to run until the end-point
of the limitations period on his primary claims. That is
incorrect. As we have previously explained, when an ERISA
breach is ongoing such that it may be characterized as
multiple violations, “[t]he earliest date on which a plaintiff
became aware of any breach . . . start[s] the limitation period
of [section 1113] running.” Phillips, 944 F.2d at 520. Rather,
as with Sulyma’s first and third claims, summary judgment
was inappropriate because there was a dispute of material
fact over whether Sulyma had “actual knowledge of the
breach” by 2012. If Sulyma in fact never looked at the
documents Intel provided, he cannot have had “actual
knowledge of the breach” because he cannot have been
aware that imprudent investments were made and that other
Intel fiduciaries were failing to monitor or remedy that
imprudence. Because there was a dispute of material fact
over Sulyma’s actual knowledge, the district court erred by
entering summary judgment in favor of Intel on these claims.
We therefore reverse the district court’s summary judgment
and remand for further proceedings consistent with this
opinion.

     REVERSED and REMANDED.
