          United States Court of Appeals
                        For the First Circuit


No. 15-1445

                IN RE: FIDELITY ERISA FLOAT LITIGATION


  TIMOTHY M. KELLEY, and all others similarly situated, et al.,

                       Plaintiffs, Appellants,

                                  v.

              FIDELITY MANAGEMENT TRUST COMPANY, et al.,

                        Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Denise J. Casper, U.S. District Judge]


                                Before

                       Thompson, Circuit Judge,
                     Souter, Associate Justice,*
                     and Kayatta, Circuit Judge.


     Mark T. Johnson, with whom Todd M. Schneider, Joshua G.
Konecky, Garrett W. Wotkyns, Michael C. McKay, Schneider Wallace
Cottrell Konecky Wotkyns LLP, Joseph C. Peiffer, Daniel J. Carr,
Peiffer Rosca Abdullah & Carr, Gregory Y. Porter, John J. Roddy,
Elizabeth A. Ryan, Bailey & Glasser LLP, Suyash Agrawal, Jeannie
Y. Evans, Agrawal Evans LLP, Branford S. Babbitt, Craig A. Rabbe,
Elizabeth R. Leong, Danielle Andrews Long, Robinson & Cole LLP,
Robert A. Izard, Jr., Mark P. Kindall, Izard Noble LLP, Peter J.

     * Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
Mougey, Laura Dunning, Levin, Papantonio, Thomas, Mitchell,
Rafferty & Proctor, PA, Richard S. Frankowski, The Frankowski Firm,
Thomas G. Shapiro, Michelle H. Blauner, and Shapiro Haber & Urmy
LLP were on brief, for appellants.
     Jonathan D. Hacker, with whom Brian D. Boyle, Bradley N.
Garcia, O'Melveny & Myers LLP, Joseph F. Savage, Jr., Alison V.
Douglass, and Goodwin Procter LLP were on brief, for appellees.
     Elizabeth Hopkins, Counsel for Appellate and Special
Litigation, with whom M. Patricia Smith, Solicitor of Labor, G.
William Scott, Associate Solicitor for Plan Benefits Security, and
David Ellis, Trial Attorney, U.S. Department of Labor, were on
brief, for the Secretary of Labor as amicus curiae supporting
appellants.


                          July 13, 2016
          SOUTER, Associate Justice.             This appeal is from the

district court's dismissal under Federal Rule of Civil Procedure

12(b)(6) of a putative class action filed by retirement-plan

participants    and   one   plan   administrator.          They   claim    that

defendants are dealing with plan assets in breach of fiduciary

duties imposed by the Employee Retirement Income Security Act of

1974 (ERISA), Pub. L. No. 93-406, 88 Stat. 829 (codified in

relevant part as amended at 29 U.S.C. §§ 1001-1461).              We affirm.

                                     I

          As preface, we mention two cases that we decided in 2014,

to which this one bears partial resemblance.               In each of them,

beneficiaries   of    life-insurance     plans   covered    by    ERISA   filed

putative class actions against the insurers.          Vander Luitgaren v.

Sun Life Assur. Co. of Can., 765 F.3d 59 (1st Cir. 2014); Merrimon

v. Unum Life Ins. Co. of Am., 758 F.3d 46 (1st Cir. 2014).                 The

plaintiffs alleged that the insurers breached their fiduciary

duties by using plan assets to enrich themselves rather than to

aid the beneficiaries.      We held to the contrary.

          This case is different from those two, and not just

because it involves investments to generate retirement benefits

rather than life-insurance policies.        Unlike the beneficiaries who

brought those two suits, the participants who bring this one claim

no direct stake in the plan assets that they say are being

improperly used and no consequential loss personal to them.               They


                                   - 3 -
do not allege that they are or will be short so much as a penny of

any benefit to which they are entitled under the terms of their

plans.        Instead,      they    bring      claims   on   behalf      of   the   plans

themselves, contending that the plans are being cheated of certain

plan       assets.      Given      this    posture,     it   is    notable    that    the

participants          are   joined        as   plaintiffs     by     only     one    plan

administrator.          Thus, whatever mischief the participants see in

defendants'          actions,   the       concern   apparently      is    shared     only

halfheartedly by the plans themselves.                  That is likely because the

behavior complained of is nothing other than what the plans

expected.

               The six plaintiff plan participants and the one plan

administrator          collectively        represent     eight      401(k)     defined-

contribution          retirement      plans.1       Under     ERISA,      a   "'defined

contribution plan' means 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


       1
       Timothy M. Kelley was a participant in the Avanade, Inc.
401(k) Retirement Plan and the Hewlett-Packard Company 401(k)
Plan; Jamie A. Fine is a participant in the Delta Airlines 401(k)
Plan; Patricia Boudreau is a participant in the Bank of America
401(k) Plan; Alex Gray is a participant in the EMC Corporation
401(k) Plan; Bobby Negron is a participant in the Safety Insurance
Company 401(k) Plan; Korine Brown is a participant in the General
Motors Personal Savings Plan; and Columbia Air Services, Inc. is
an administrator of the Columbia Group of Companies 401(k)
Retirement Savings Plan.


                                            - 4 -
accounts of other participants which may be allocated to such

participant's account."       29 U.S.C. § 1002(34).

          Defendants are various Fidelity entities that had trust

agreements with the plans; following the parties' lead, we deal

with defendants collectively as "Fidelity."2 Under the agreements,

Fidelity acted as trustee, serving the plans, the mutual funds in

which contributions were invested, and the participants and their

designated     beneficiaries.3          Among   other    things,   Fidelity

functioned,    in   effect,   as   an    intermediary.     It   opened   and

maintained a trust account for each plan and participant, accepted

contributions from the participant or her employer, and invested

those contributions in mutual funds.

          At the other end of the process, and crucial to this

case, Fidelity performed its intermediary functions in effecting

withdrawals.    When a participant requested to withdraw from the

plan, her mutual-fund shares were redeemed by the mutual fund's

payment of money in an amount equal to the market value of the


     2  Fidelity Management Trust Company holds assets for
institutional clients; Fidelity Management & Research Company is
an investment advisor; and Fidelity Investments Institutional
Operations Company, Inc. is a transfer agent of Fidelity Management
Trust Company for mutual funds.
     3 As this is an appeal from the dismissal of the action at
the pleading stage, we present the facts as alleged in the
operative complaint, the Second Amended Consolidated Complaint,
and the documents it incorporates by reference. Hochendoner v.
Genzyme Corp., ___ F.3d ___, Nos. 15–1446, 15–1447, 2016 WL
2962148, at *1 (1st Cir. May 23, 2016).


                                   - 5 -
shares.          Because that value was not established until the end of

each trading day, the redemption occurred the day after the

withdrawal request, when the mutual fund transferred cash to a

redemption bank account owned by and registered to Fidelity.                 It

is undisputed that, prior to the redemption, the cash was an asset

of the mutual fund.            That same day, the balance was transferred

from       the    redemption   account   to   "FICASH,"    an   interest-bearing

account owned and controlled by Fidelity.                  The next day, after

remaining in FICASH overnight, the account's principal (but not

any interest) was transferred back to the redemption account.               The

participant then received an electronic disbursement from the

redemption account if she had so elected.                 If she had not chosen

to receive an electronic disbursement, the funds were transferred

from the redemption account to an interest-bearing disbursement

account owned and controlled by Fidelity. The disbursement account

then issued the participant a check, and the principal in the

disbursement account would accrue interest until the check was

cashed.4




       4
       For simplicity, we refer to the "participant" as receiving
the payout. Of course, under ERISA and the plan documents, payment
could also be received by a "beneficiary." See 29 U.S.C. § 1002(8)
(defining "beneficiary" under ERISA); Sealed Supplemental Appendix
at 109 (explaining, in plan document, that "[t]he [t]rustee shall
hold the assets of the [t]rust [f]und for the exclusive purpose of
providing benefits to [p]articipants and [b]eneficiaries").


                                         - 6 -
             This      process       may      appear     unnecessarily        elaborate.

Although Fidelity's position as an intermediary in the withdrawal

process is well established under the trust agreements in place

here, the entire role of the intermediary seemingly could be

eliminated by making the disbursement from the mutual fund to the

participant directly.             Indeed, Fidelity informs us (and plaintiffs

do    not    contest)        that,       in    ordinary      "retail"        mutual-fund

transactions,         the   fund's    own      transfer    agent     alone    makes     the

disbursement, see Brief of Defendants-Appellees at 8, and there is

no apparent reason that the retirement plans could not contract

for similar arrangements. Similarly, some of the transfers between

Fidelity    accounts        and    the     one-night     stay   in   FICASH       do   not,

superficially at least, seem necessary.                   But it appears that there

is nothing bizarre about this sequence as a matter of ordinary

business practice, and plaintiffs do not contend otherwise.

             Whatever may be the practical merits of the system, there

is no question that when Fidelity acts as intermediary in the

withdrawal process under its trust agreements with the plans it is

a    fiduciary      within    the        meaning    of    ERISA.       Under      section

3(21)(A)(i), "a person is a fiduciary with respect to a plan to

the extent he . . . exercises any authority or control respecting

management       or     disposition           of   its    assets."           29    U.S.C.

§ 1002(21)(A)(i).           Section 404(a) of ERISA imposes a fiduciary

duty of loyalty, that "a fiduciary . . . discharge his duties with


                                           - 7 -
respect to a plan solely in the interest of the participants and

beneficiaries."   29 U.S.C. § 1104(a)(1).    And ERISA section 406(b)

specifically prohibits a fiduciary from self-dealing, providing

that "[a] fiduciary with respect to a plan shall not deal with the

assets of the plan in his own interest or for his own account."

29 U.S.C. § 1106(b)(1).

          Plaintiffs   allege   that    Fidelity   breached   these   two

fiduciary duties by using certain plan assets other than for the

benefit of the plans, in its treatment of "float": interest earned

on the cash paid out by the mutual funds.5         As mentioned before,

there were two points in the withdrawal sequence at which interest

might be earned: when the cash was in FICASH overnight, and, for

participants who opted to receive a paper check rather than an

electronic transfer, when it sat in the disbursement account until

the participant cashed her check.

          As we also said, the suing participants do not claim a

direct, personal stake in float, and at argument their counsel

confirmed that they do not contend that any withdrawing participant

received less than she was entitled to under the plan documents.


     5 There appears to be some flexibility in the industry's
understanding of the meaning of "float." Other cases, for example,
use the term to refer to the pool of cash paid out by the mutual
fund upon redemption, and then use the distinct term "float
interest" or "float income" to refer to the interest earned on
that cash. Tussey v. ABB, Inc., 746 F.3d 327, 332 & n.4 (8th Cir.
2014). There is no question that the complaint in this case uses
"float" to refer only to the interest, and we do the same.


                                - 8 -
Instead, plaintiffs' quarrel is over Fidelity's use of float other

than for the benefit of the plans.        The complaint alleges that

Fidelity used float to defray bank expenses and, if there was any

remainder, distributed it to the investment fund from which the

principal   came.    Plaintiffs    maintain   that   ERISA's   fiduciary

mandates required float to be credited instead to the plans, where,

as counsel stated at argument, it would inure indirectly to the

benefit of all participants.

            A necessary step to reach this result, as plaintiffs

have pleaded their causes of action in the complaint, is treatment

of float as a plan asset, and their loss in the district court

turned on the conclusion that the complaint did not allege facts

to support this premise.     Hence, the order granting Fidelity's

motion to dismiss for failure to state a claim on which relief can

be granted.6

                                   II

            We review de novo the district court's dismissal of the

complaint for failure to state a claim.       Saldivar v. Racine, 818

F.3d 14, 17 (1st Cir. 2016).

            To survive a motion to dismiss, [a] complaint
            must contain sufficient factual matter to
            state a claim to relief that is plausible on

     6 The district court also concluded that, even if float were
a plan asset, Fidelity was not acting as an ERISA fiduciary when
dealing with float. Because we conclude that plaintiffs have not
alleged facts showing that float should be treated as a plan asset,
we need not address this alternative conclusion.


                                  - 9 -
            its face. In evaluating whether a complaint
            states a plausible claim, we perform a two-
            step analysis.      At the first step, we
            distinguish     the    complaint's     factual
            allegations (which must be accepted as true)
            from its conclusory legal allegations (which
            need not be credited). At step two, we must
            determine whether the factual allegations are
            sufficient to support the reasonable inference
            that the defendant is liable.

Id. at 18 (citations, alterations, and internal quotation marks

omitted).

            Here, at step one, we need not credit the complaint's

statement that float is a "plan asset," for that label represents

a legal conclusion, not a factual assertion.     It is, moreover, a

legal conclusion bereft of any comprehensive definition in ERISA

itself, as we have explained: "In an effort to fill this void, the

[Department of Labor] consistently has stated that the assets of

a plan generally are to be identified on the basis of ordinary

notions of property rights under non-ERISA law. . . .        We . . .

find this formulation persuasive."       Merrimon, 758 F.3d at 56

(citations and internal quotations marks omitted).

            Plaintiffs approach the question whether float should be

treated as a plan asset by observing that, prior to redemption,

the mutual-fund shares are plan assets. Thus, their argument goes,

under ordinary notions of property rights, the cash received in

redemption of those shares must also be a plan asset.    And if that

cash is a plan asset, so too is any interest earned on that cash.



                               - 10 -
            This sequence might hold up if the payout from the

redemption were going to the plan itself, as one side of a simple

exchange transaction in which the place of plan assets consisting

of mutual-fund shares would be filled by substitute cash of equal

value.     In that scenario, ordinary notions of property rights

probably would dictate that the substitute cash becomes an asset

of the plan upon the exchange.

            But this is not what happens.            The payout from the

redemption does not go, and is not intended to go, to the plan

itself.    In fact, it appears that the plans are not entitled to

hold uninvested cash, see Sealed Supplemental Appendix at 109 ("The

[t]rust [f]und shall be fully invested . . . ."); id. at 109-10

("[T]he [t]rustee shall have . . . power[] . . . to retain

uninvested [only] such cash as the . . . [a]dministrator may . . .

direct."), and a plan's instruction to redeem shares is therefore

most coherently seen as an order to pay the participant, whose

receipt of the dollar value of the shares is as clearly the object

of the transfer scheme as it would be if the mutual fund were to

pay the participant directly.            Plaintiffs allege no facts to

support the proposition that the same cash becomes a plan asset

simply    because   it   moves,   not   directly   from   the   fund   to   the

participant, but from the fund through Fidelity on its way to the

participant.




                                   - 11 -
              It is true that Fidelity occupies its position in the

withdrawal process by virtue of its fiduciary relationship with

the   plan.      But   this    relationship,        standing    alone,   is       not   a

sufficient reason to think that it confers plan-asset status on

everything that comes within Fidelity's possession.                  Now, if the

cash were ultimately destined for the plan itself and Fidelity

acted as an intermediary agent to receive the cash for deposit

with the plan, plaintiffs' position would have some intuitive

appeal.       But,     for    the   purpose    of    understanding       Fidelity's

obligation subject to ERISA, Fidelity is more straightforwardly

viewed as an agent charged with transferring the cash from the

fund to the participant outside the plan, not to the plan itself.

              There is a further reason to see the agency this way.

Because   "ERISA's       principal     function       is   to   protect       .    .    .

contractually defined benefits[,] . . . a fiduciary must act in

accordance with the documents and instruments governing the plan."

Vander Luitgaren, 765 F.3d at 64 (citation, alterations, and

internal quotation marks omitted).             Here, the agreements between

Fidelity and the plans, cited in the complaint and attached to the

motion to dismiss, confirm the foregoing analysis that Fidelity's

duty is to make a distribution by a route incapable of providing

any benefit to the plan from temporary use of the cash:

              Fidelity    shall   distribute    withdrawals
              directly to each [p]articipant based upon the
              address of record unless distribution is


                                      - 12 -
              processed as an electronic payment ("direct
              deposit") pursuant to Fidelity's receipt, in
              a form and manner acceptable to Fidelity, of
              [p]articipants['] bank account information.
              Fidelity will process all approved withdrawals
              and mail distribution checks, or remit
              distributions    as    direct   deposits    to
              [p]articipants within ten business days of the
              processing date.

Sealed Supplemental Appendix at 148.             Nothing in this provision

for direct distribution to a participant suggests that the plan is

meant to exercise, or receive a benefit under, ordinary property

rights   in    the   traveling   cash.     There     is   no   indication,     for

instance, that the plan bears the risk if the cash is lost after

the redemption but before its receipt by the participant.                 Indeed,

it appears that the plans would be, in effect, incapable of bearing

such risk, for a reason mentioned before, that the agreements

prevent plan trusts from holding any uninvested cash.                Id. at 109-

10.   By contrast, Fidelity's mutual fund disclosures, publicly

available      documents    to   which    Fidelity    directs       us   and   the

authenticity of which plaintiffs do not contest, provide that the

"fund faces the risk of loss . . . if the [intermediary] bank

becomes insolvent."        Brief of Defendants-Appellees at 28.

              The reasonableness of this conclusion suggested by the

structure of the withdrawal process and the parties' relationships

is corroborated by our pair of insurance cases from 2014, Vander

Luitgaren     and    Merrimon.     Both   were     brought     to   challenge    a

particular benefit-payment method:               The insurer would open a


                                    - 13 -
retained asset bank account (RAA) in the beneficiary's name, credit

the account with the full benefit amount, and mail the beneficiary

a book of drafts for making withdrawals.   During the time that the

RAA had a positive balance, the insurer retained the credited funds

in its general account and continued to collect a return on them.

The insurer would pay the beneficiary some interest on the value

of the RAA but at a rate allegedly lower than the return the

insurer was receiving.   The beneficiaries who brought the cases

alleged that, by retaining and investing RAA funds for its own

enrichment, the insurer violated both the ERISA section 404(a)

duty of loyalty and the 406(b) prohibition against self-dealing.

Vander Luitgaren, 765 F.3d at 61-62; Merrimon, 758 F.3d at 51.

          Much as plaintiffs in this case acknowledge that, prior

to a redemption, the cash is an asset of the mutual fund (not the

plan), so too the beneficiaries in Merrimon conceded that, prior

to the creation of an RAA, funds held in the insurer's general

account were not plan assets.     See Merrimon, 758 F.3d at 56;

Compare 29 U.S.C. § 1101(b)(1) ("In the case of a plan which

invests in any security issued by a[ mutual fund], the assets of

such plan . . . shall not . . . be deemed to include any assets of

such [mutual fund]."), with id. § 1101(b)(2) ("In the case of a

plan to which a guaranteed benefit policy is issued by an insurer,

the assets of such plan . . . shall not . . . be deemed to include

any assets of such insurer."). And much as plaintiffs here contend


                              - 14 -
that, upon redemption, the cash becomes a plan asset, so too the

beneficiaries there posited that, "when a death benefit . . . is

redeemed by means of the establishment of an RAA, the RAA funds

become plan assets."   Merrimon, 758 F.3d at 56.     We rejected the

argument in those cases:

          There is no basis, either in the case law or
          in common sense, for the proposition that
          funds held in an insurer's general account are
          somehow transmogrified into plan assets when
          they   are   credited   to   a   beneficiary's
          account. . . . [O]rdinary notions of property
          rights counsel strongly against the . . .
          proposition. It is the beneficiary, not the
          plan itself, who has acquired an ownership
          interest in the assets backing the RAA.
          Unless the plan documents clearly evince a
          contrary intent--and here they do not--a
          beneficiary's assets are not plan assets.

Id. (citations omitted); see also Vander Luitgaren, 765 F.3d at

63.   Thus, it is in harmony with those cases that we reject the

comparable argument in this one, too.     Cash held by a mutual fund

is not transmuted into a plan asset when it is received by an

intermediary whose obligation is to transfer it directly to a

participant.   As between the plan and the participant, it is the

participant who has the superior claim to property in the cash

after redemption.   And that is a good reason to reject a claim

that the cash should be treated as a plan asset for the purpose of

enforcing fiduciary responsibilities under ERISA.

          It is not that we fail to recognize a distinction between

the insurance cases and this one.      There, the insurer, acting as


                              - 15 -
both the investment vehicle and the distribution agent, paid the

beneficiary without assistance from an intermediate fiduciary.

Here, by contrast, the investment vehicle (the mutual fund) pays

the participant through an intermediary selected by the plan to

serve as the distribution agent (Fidelity).    But because the path

of the fund payouts does not include the plans, which apparently

would be barred from holding the cash as they previously held the

shares, plaintiffs have given no good reason why this distinction

should make a difference to the plan-asset analysis of float for

purposes of applying ERISA.7

          In emphasizing the contours of our holding today, we

should mention one other feature that we take to be common to this

case and the insurance cases.     When we turned away those earlier

claims of fiduciary breach, we relied on the fact that the plan

documents contemplated the RAA method of paying benefits.    Vander

Luitgaren, 765 F.3d at 64; Merrimon, 758 F.3d at 58.          Here,




     7 We assume, because no one contends otherwise, that the
retirement plan shoulders the ultimate responsibility for
effecting a distribution, no matter the contours of a particular
distribution scheme. Nothing in today's opinion should be read to
bear on that assumption. Here we decide only the narrow question
whether, given the distribution scheme under review, float is a
plan asset for purposes of ERISA sections 404(a) and 406(b). Our
negative answer to that question does not, for instance, alter the
fact that a disbursement from Fidelity (as plan trustee) to a
participant constitutes a "distribution . . . [from] a qualified
trust" for purposes of the Tax Code. 26 U.S.C. § 402(c)(4).


                                - 16 -
plaintiffs do not contend that the plan documents failed to give

notice of the disbursement process under review.8




     8 In Merrimon, we distinguished a case on which plaintiffs
rely here:
          The decision in Mogel v. Unum Life Insurance
          Co., 547 F.3d 23, 26 (1st Cir. 2008), is not
          at odds with the conclusion that the monies
          retained by the insurer are not plan assets.
          Mogel involved a plan that contained a
          specific directive to pay beneficiaries in a
          lump sum. The insurer ignored this specific
          directive and sought instead to redeem claims
          through the establishment of RAAs.      As has
          been widely recognized, this particularized
          policy provision explains this court's holding
          that the insurer, which had not paid the
          policy proceeds in a manner permitted by the
          plan documents, had violated its fiduciary
          duties.   Thus, neither the holding in Mogel
          nor its broadly cast language is binding
          precedent for purposes of this materially
          different case.

758 F.3d at 56-57 (citations omitted).        In support of the
proposition that it "has been widely recognized" that Mogel should
be limited to its facts, we cited Edmonson v. Lincoln National
Life Insurance Co., 725 F.3d 406, 428 (3d Cir. 2013) ("[W]e do not
read Mogel as holding the retained assets were plan assets."), and
Faber v. Metropolitan Life Insurance Co., 648 F.3d 98, 106-07 (2d
Cir. 2011) ("Mogel is better understood as predicated on the fact,
not present here, that the insurer failed to abide by plan terms
requiring it to distribute benefits in lump sums."). So limited,
Mogel does not aid plaintiffs, who, as noted, do not contend that
the plan documents called for a distribution method different from
the one implemented. Indeed, the plan documents here do not appear
to contain express provisions specifying a distribution method.
Contra Vander Luitgaren, 765 F.3d at 64 ("The Plan at issue here
states: 'The Death Benefit may be payable by a method other than
a lump sum. The available methods of payment will be based on the
benefit options offered by [the insurer] at the time of
election.'"); Merrimon, 758 F.3d at 59 ("In this instance, each of
the plans provides that the insurer will, upon proof of claim, pay


                             - 17 -
           Plaintiffs' failure to advance such a claim not only

invites the contrast with Mogel v. UNUM Life Insurance Co. of

America, 547 F.3d 23 (1st Cir. 2008), see supra note 8, but

complements     the   absence   of   any    timely    argument      of   the   sort

presented by the Secretary of Labor as amicus curiae supporting

plaintiffs.     The Secretary contends that Fidelity's use of float

violated ERISA fiduciary duties, not because float is a plan asset,

but   because   Fidelity    failed     to   seek     and   obtain    the   plans'

permission to use float as it did.              The Secretary's position,

however, would take us beyond this case, since the causes of action

pleaded in plaintiffs' complaint necessarily depend on float being

a plan asset.         Plaintiffs did not press a failure-to-obtain-

agreement claim in the district court or in their opening brief

here, and their reply brief's unsuccessful attempt to cast the

Secretary's position as their own is, in any event, too little too

late.   We therefore do not consider the Secretary's argument.                  See

United States v. Parigian, ___ F.3d ___, No. 15–1994, 2016 WL

3027702, at *5 (1st Cir. May 26, 2016) ("On this record, [a

particular] argument . . . is both forfeited for failure to raise

it below and waived for failure to preserve it on appeal.                  We have

held, with a regularity bordering on the monotonous, that issues

advanced for the first time in an appellant's reply brief are


the death benefit owed by 'making available to the beneficiary a
retained asset account.'" (alterations and emphasis omitted)).


                                     - 18 -
deemed       waived."          (citations      and     internal      quotation      marks

omitted)); Downing/Salt Pond Partners, L.P. v. R.I. & Providence

Plantations, 643 F.3d 16, 28 (1st Cir. 2011) ("We decline to

address       .    .   .    issues    raised    for    the   first     time    by    [an]

amicus . . . .             Amici may not make up for waiver by a party and

may not introduce a new argument into a case."                              (citations,

alterations, and internal quotation marks omitted)). In so saying,

we will probably not surprise the Secretary, whose brief states,

"If    this       [c]ourt    determines     that     plaintiffs      have   waived   any

argument that Fidelity violated its duties even if . . . float

itself is not a plan asset, the Secretary urges the [c]ourt to

reserve the issue . . . whether Fidelity, in the absence of an

express       agreement       about    float,        has   engaged     in     prohibited

transactions and acted disloyally . . . ." Brief for the Secretary

of Labor as Amicus Curiae Supporting Plaintiffs-Appellants at 20

n.7.       We accede to the Secretary's request and reserve the issue

for timely presentment in another case.9


       9It is notable that the Secretary supports plaintiffs'
ultimate position but declines to join in their insistence that
float is a plan asset. In arguing that float is a plan asset,
plaintiffs cite several guidance documents from the Department of
Labor.    These documents do not, facially, support plaintiffs'
desired conclusion.     If something below the surface of the
documents indicated that float is a plan asset, presumably the
Secretary would have drawn it to our attention. The Secretary's
decision to make a wholly different argument thus supports our
view that the Department of Labor's documents do not have a bearing
on our resolution of the claim that plaintiffs chose to advance.
See Brief for the Secretary of Labor as Amicus Curiae Supporting


                                          - 19 -
           A final point in support of today's decision: in Tussey

v. ABB, Inc., 746 F.3d 327 (8th Cir. 2014), the Eighth Circuit

reached the same conclusion on materially similar facts.       Indeed,

it is undisputed that plaintiffs' complaint here is modeled on the

complaint in Tussey, which involved some of the same defendants

and similar trust agreements.     Tussey reached the Eighth Circuit

after a trial, and the appeal garnered this summary:

           The participants . . . fail to establish the
           [p]lan had any rights in the redemption
           account balance, which . . . was registered
           for    the   benefit    of   the    investment
           options. . . . The participants agree with
           Fidelity that the funder of the check owns the
           funds in the checking account until the check
           is presented, and thus is entitled to any
           interest earned on that float, but the
           participants contest the ownership of the
           funds at issue. The participants assert, [i]n
           this case, the owner is the [p]lan, making the
           float income a [p]lan asset.          But the
           participants do not cite any record evidence
           establishing the [p]lan as the funder of the
           check or the owner of the funds in the
           redemption account.     Absent proof of any
           ownership rights to the funds in the
           redemption account, the [p]lan had no right to
           float income from that account.

Id.   at   340   (footnote,   alterations,   emphasis,   and   internal

quotation marks omitted).      Plaintiffs' allegations here are as

lacking as the proffers in Tussey.




Plaintiffs-Appellants at 25 (explaining that "the [Department of
Labor] guidance [documents] did not rely on or answer th[e]
question" whether float is a plan asset).


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                     III

The district court's judgment is AFFIRMED.




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