              Case: 13-15155     Date Filed: 04/17/2014     Page: 1 of 4


                                                                 [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 13-15155
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 1:04-cv-02592-ODE



DENNIS SMITH,
Individually and on behalf of all others similarly
situated,

                                                     Plaintiff - Appellant,

JACKLIN TOMA,

                                                     Consol. Plaintiff,

IVONNE BERMUDEZ,

                                                     Intervenor Plaintiff,

versus

DELTA AIR LINES INC.,
GERALD GRINSTEIN,
LEON PIPER,
ADMINISTRATIVE COMMITTEE OF DELTA AIR LINES, INC.,
BENEFIT FUND INVESTMENT COMMITTEE, et al.,

                                                     Defendants - Appellees,
              Case: 13-15155     Date Filed: 04/17/2014    Page: 2 of 4


PERSONNEL & COMPENSATION COMMITTEE, et al.,

                                                     Defendants.

                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________

                                  (April 17, 2014)

Before HULL, MARCUS and DUBINA, Circuit Judges.

PER CURIAM:

      This appeal involves a punitive class action brought under the Employee

Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq.,

against defendants Delta Air Lines, Inc. and the fiduciaries of a benefit plan

offered by Delta to its employees that provided for investment in Delta stock.

Dennis Smith, the class representative, is a former Delta employee who

participated in the Plan and lost money when the price of Delta stock declined

between 2000 and 2004.

      In March 2006, the district court dismissed Smith’s complaint for failure to

state a claim. While an appeal of that decision was pending, this court decided

Lanfear v. Home Depot, Inc., 679 F.3d 1267 (11th Cir. 2012), which clarified the

legal standard for evaluating ERISA claims against plan fiduciaries arising out of

investments in employer stock as envisioned in an employee stock ownership


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program (“ESOP”). Because the district court did not have the benefit of Lanfear

when it issued its order, we remanded the case with instructions to apply Lanfear

to Smith’s complaint. The district court complied with our mandate and applied

Lanfear to the allegations in Smith’s complaint and once again concluded that

Smith had failed to state a claim. It is from that order of dismissal that Smith

perfects this appeal.

      The district court’s grant of a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6) is reviewed de novo. See Edwards v. Prime, Inc. 602 F.3d

1276, 1291 (11th Cir. 2010). The allegations in the complaint must be taken as

true and construed in the light most favorable to the plaintiff. Id. Dismissal for

failure to state a claim is proper if the factual allegations are not “enough to raise a

right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555, 127 S. Ct. 1955, 1965 (2007). “[O]nly a complaint that states a

plausible claim for relief survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S.

662,679, 129 S. Ct. 1937, 1950 (2009).

      After reviewing the record and reading the parties briefs, we conclude that

the district court correctly applied the highly deferential abuse of discretion

standard as set forth in Lanfear to the allegations contained in Smith’s complaint.

Lanfear, 679 F.3d at 1279. The Lanfear standard applies to fiduciaries of ESOP

plans as well as other ERISA plans that “encourage or require investment in


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employer stock.” Id. at 1278 n.14. Here, the Plan required defendants to offer a

Delta Common Stock Fund as an investment option for participants’ voluntary

contributions and required that company matching contributions be made in Delta

stock. We agree with defendants that at the very least, the Plan’s many provisions

addressing investments in Delta stock made clear that defendants were

“encouraged” to offer employer stock as an investment option for participants.

That is all that is required to bring this case within the scope of Lanfear.

      Although it is uncontroverted that during the period in question Delta faced

business challenges, the Plan required defendants to offer participants investments

in Delta stock, and defendants continued to abide by those provisions. Smith

contends that with the benefit of hindsight, defendants should have known Delta’s

turnaround efforts would fail. But that was not at all obvious at the time, as

underscored by market movements during the class period. Because a reasonable

fiduciary could have concluded that investments in Delta stock during the class

period remained appropriate, Smith’s prudence claim fails.

      Accordingly, for the reasons stated above, as well as those contained in the

district court’s well-reasoned order filed on November 1, 2013, we affirm the

judgment of dismissal.

      AFFIRMED.




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