Navarro et al v. Wells Fargo & Company et al

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
SERGIO NAVARRO, THERESA
GAMAGE, DAYLE BULLA, JANE
KINSELLA, and ERICA McKINLEY,
on their own behalf, on behalf of all
others similarly situated, and on behalf
of the Wells Fargo & Company Health
Plan and its component plans,
Plaintiffs,
v.
WELLS FARGO & COMPANY,
Defendant.
Case No. 24-cv-3043 (LMP/DLM)
ORDER GRANTING
DEFENDANT’S
MOTION TO DISMISS
Kai H. Richter, Cohen Milstein Sellers & Toll, PLLC, Minneapolis, MN; Michelle C.
Yau and Allison Pienta, Cohen Milstein Sellers & Toll, PLLC, Washington, D.C.;
Michael B. Eisenkraft, Cohen Milstein Sellers & Toll, PLLC, New York, NY; Jamie
Crooks and Michael D. Lieberman, Fairmark Partners LLP, Washington, D.C.; and
Daniel E. Gustafson and Daniel J. Nordin, Gustafson Gluek PLLC, Minneapolis, MN,
for Plaintiffs.
Russell L. Hirschhorn, Joseph E. Clark, and Sydney L. Juliano, Proskauer Rose LLP,
New York, NY; and Jeffrey P. Justman and Kiera Murphy, Faegre Drinker Biddle &
Reath LLP, Minneapolis, MN, for Defendant.
Carl F. Engstrom, Engstrom Lee, Minneapolis, MN, for Amicus Curiae Amy B.
Monahan.
Plaintiffs Sergio Navarro, Theresa Gamage, Dayle Bulla, and Jane Kinsella (the
“Original Plaintiffs”), former employees of Defendant Wells Fargo & Company (“Wells
Fargo”) and former participants in the Wells Fargo & Company Health Plan (the “Plan”),
filed the initial complaint in this matter, alleging that Wells Fargo breached its fiduciary
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duties under the Employee Retirement Income Security Act (“ERISA”) by mismanaging
the Plan’s prescription drug benefits program. ECF No. 1. Wells Fargo moved to dismiss
the Original Plaintiffs’ complaint for lack of standing and for failure to state a plausible
claim for relief. ECF No. 28. Upon review of the initial complaint, this Court found that
“[w]hile compelling and detailed, Plaintiffs’ allegations are simply too speculative to show
concrete individual harm, too tenuous to show causation, and too conjectural to show
redressability.” 	ECF No. 57 at 25. 	The Court therefore concluded that the Original
Plaintiffs lacked standing and granted Wells Fargo’s motion. Id. at 29.
With 	leave 	of 	Court, 	the 	Original 	Plaintiffs 	filed 	an 	amended 	complaint
supplementing their factual allegations, asserting the same claims, and adding Plaintiff
Erica McKinley (collectively with the Original Plaintiffs, “Plaintiffs”), who is a former
Wells Fargo employee and current Plan participant. 	ECF No. 64. Wells Fargo moves to
dismiss the amended complaint on the same grounds. 	ECF No. 77. 	For the reasons
discussed here, the Court again concludes upon review of the amended complaint that
Plaintiffs have not demonstrated standing to bring their claims, grants Wells Fargo’s
motion, and dismisses Plaintiffs’ amended complaint.
FACTUAL BACKGROUND
The 	factual 	allegations 	in 	Plaintiffs’ amended 	complaint 	largely 	mirror 	the
allegations in the initial complaint. 	Compare ECF No. 64, with ECF No. 1; see ECF
No. 64-2; see also ECF No. 57 at 2–9. 	The Court will cover the facts alleged in the
amended complaint for the benefit of context. In addition, the Court notes that for purposes
of assessing Wells Fargo’s motion to dismiss, the Court accepts the factual allegations in
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Plaintiffs’ amended complaint as true. Gorog v. Best Buy Co., 760 F.3d 787, 792 (8th Cir.
2014).
I. 	The Plan
The Plan is a self-funded employee welfare benefit plan established to provide
medical and prescription drug benefits to Wells Fargo employees who choose to enroll.
See ECF No. 64 ¶¶ 21–22. 	Wells Fargo is the sponsor and a fiduciary of the Plan and
retains decision-making authority with respect to the Plan’s management. 	Id. ¶ 24. 	The
Original Plaintiffs are each former Wells Fargo employees and former Plan participants.
Id. ¶¶ 14–17. McKinley is also a former Wells Fargo employee, but as of the filing of the
amended complaint, she remains a participant in the Plan because she elected to continue
her coverage under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”)
after her employment with Wells Fargo ended. Id. ¶ 18.
Because the Plan is self-funded, its expenses—including payment for participants’
covered medical expenses and administrative fees—are shared by Wells Fargo and Plan
participants. 	Id. ¶¶ 22, 30. 	To cover those expenses, Wells Fargo established the Wells
Fargo & Company Employee Benefit Trust (the “Trust”). 	Id. ¶ 22. 	The Trust is funded
almost entirely by a combination of Wells Fargo and Plan-participant contributions, and it
is responsible for all the Plan’s expenses. Id. As such, any increases in Plan spending must
be covered by increases in contributions to the Trust. See id. ¶ 32.
Wells Fargo retains “sole discretion” to set and modify participant contribution
amounts. 	ECF No. 31-3 at 9; see also ECF No. 31-2 at 22 (“The Plan Sponsor may
establish different contribution rates for different classes of Participants . . . for any Benefit
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Option.”). 	Between 2018 and 2023, Wells Fargo required Plan participants to contribute
approximately 25% of the Plan’s overall costs, with Wells Fargo contributing the remaining
75%. ECF No. 64 ¶ 240.
II. 	The Plan’s Prescription Drug Program
A. 	Pharmacy Benefit Managers Generally
Fiduciaries of employer-sponsored health plans like the Plan often contract with
third-party pharmacy benefit managers (“PBMs”) to administer their plans’ prescription
drug benefits. 	See ECF No. 64 ¶ 53. 	PBMs offer various services, including processing
participant claims; negotiating with pharmacies to establish a plan’s pharmacy networks;
managing a plan’s formulary, which is a list of the prescription drugs the plan covers; and
negotiating with prescription drug manufacturers to secure rebates or discounts for those
manufacturers’ products. 	Id. ¶¶ 49, 53. 	Generally, when a plan participant obtains a
prescription drug from a pharmacy in the plan’s network, the participant pays the portion,
if any, for which they are responsible under the terms of their plan (like a co-pay or
deductible), the PBM pays the pharmacy for the remainder of the cost as negotiated by the
PBM, and the PBM is later reimbursed by the plan. See id. ¶¶ 54, 57, 106. In short, PBMs
serve as intermediaries between plans (and by extension, plan participants) and pharmacies.
See id. ¶¶ 53–55.
Two dominant PBM models have emerged: “pass-through” and “traditional” PBMs.
Id. ¶ 56. 	Pass-through PBMs generate profit exclusively by charging administrative fees
for the services they provide to plans. 	Id.; see id. ¶ 73. 	Traditional PBMs, on the other
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hand, generate profit through a combination of “spread pricing,”1 pharmacy rebates,
administrative fees, and ownership of their own pharmacies. Id. ¶ 56. Traditional PBMs
also negotiate with plan fiduciaries the prices the PBMs will be reimbursed for various
prescription drugs. Id. ¶ 57. As such, traditional PBMs are incentivized to negotiate with
a plan the highest price for a prescription drug to which the plan will agree to maximize
the “spread.” Id. ¶ 67.
Some PBMs and plan fiduciaries structure their agreements by setting prices for
groups of drugs by reference to a benchmark price rather than negotiating the price for each
drug individually. Id. ¶ 58. One such benchmark, the National Average Drug Acquisition
Cost (“NADAC”), tracks the average cost pharmacies pay to obtain many prescription
drugs. Id. ¶ 59. Another, the “Average Wholesale Price” (“AWP”), purports to do the same
thing as NADAC, but according to Plaintiffs, it is not truly representative of actual market
prices and is susceptible to industry manipulation. Id. ¶ 61.
B. 	The Plan’s Agreement with Express Scripts, Inc.
Wells Fargo entered an agreement with Express Scripts, Inc. (“ESI”), a PBM that
operates under the traditional model and one of the three largest PBMs in the U.S., to serve
as the Plan’s PBM. Id. ¶¶ 88, 110. Wells Fargo did not conduct an open bid process before
retaining ESI but rather engaged a broker which evidently identified and recommended
ESI. 	See id. ¶¶ 111, 113. 	The agreement between Wells Fargo and ESI is not publicly
1 	“Spread pricing” refers to a practice in which a PBM negotiates with a pharmacy a
lower price for a particular prescription drug than the price a plan agreed to pay the PBM
as part of the plan’s contract with the PBM, then retains the difference as profit. See ECF
No. 64 ¶¶ 57, 64, 66.
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available, but ESI’s standard contract with other plans suggests that Wells Fargo would
have agreed to various terms regarding drug pricing, formulary management, pharmacy
networks, and administrative services. 	Id. ¶¶ 110, 114. 	ESI’s standard contract also
expressly states that the plan sponsor—here, Wells Fargo—retains discretionary authority
and control over decisions relating to plan management. Id. ¶ 112.
The 	Plan’s 	formulary 	designates 	approximately 	300 	of 	the 	most 	commonly
prescribed generic drugs as “preferred alternatives,” 	meaning 	Plan participants are
encouraged to use those generic versions rather than their brand-name equivalents. 	Id.
¶¶ 118–19. 	NADAC information is publicly available for 260 of those drugs. 	Id. ¶ 120.
The Plan’s formulary uses the AWP as a benchmark, however, and NADAC information
for those 260 drugs reveals that the prices Wells Fargo negotiated with ESI for these
“preferred alternative” drugs were approximately 115% above the pharmacy acquisition
cost on average. Id. ¶¶ 115, 121.
The Plan’s agreement with ESI also requires Plan participants to acquire so-called
“generic-specialty” drugs from ESI’s wholly owned mail-order pharmacy, Accredo. 	Id.
¶ 124. NADAC information is publicly available for 38 of the 95 generic-specialty drugs
on the Plan’s formulary, which shows that the Plan agreed to pay, on average, 383% above
the pharmacy acquisition cost for those 38 drugs. Id. ¶ 125. In some cases, the prices the
Plan agreed to pay ESI for certain generic-specialty drugs exceeds the cost an uninsured
person would be required to pay at a retail pharmacy. See id. ¶¶ 126–37, 140–43.
After the Original Plaintiffs filed the initial complaint, Wells Fargo “appears to
have . . . renegotiated its prices with [ESI] to lower them substantially.” Id. ¶ 166. As of
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the filing of the amended complaint, Wells Fargo “has more favorable pricing on 158 of
the 260 drugs” on the Plan’s formulary, and the Plan’s drug prices “are now 11% lower
than they were” when the initial complaint was filed. Id. 	In any event, regardless of the
type or cost of any particular prescription drug, a Plan participant is required to pay some
portion, if not all, of the cost themselves until they meet their annual deductible. 	See id.
¶ 106. 	After meeting their annual deductible, a participant may still be responsible for
some out-of-pocket costs, like coinsurance payments. See id.
Separately, the administrative fees the Plan agreed to pay ESI exceed the fees paid
by other large plan sponsors for comparable services. See id. ¶ 155. In 2022, for example,
the Plan had 188,798 participants and paid ESI $25,639,955 in administrative fees, or
$135.81 per participant. 	Id. ¶ 157. 	By comparison, the Railroad Employees National
Health and Welfare Plan (“RENHWP”), who also contracted with ESI as its PBM that year,
had 213,981 participants and paid $4,250,101 in administrative fees, or $19.86 per
participant. Id. The Plan’s and the RENHWP’s respective Form 5500s from that year show
two of the same three service codes.2 Id.
III. 	Plaintiffs’ Amended Complaint
The essence of Plaintiffs’ amended complaint remains essentially unchanged from
the initial complaint, and their allegations can be sorted into three main categories.
2 	A Form 5500 explains what third-party services were provided to a plan and
“discloses the aggregate payments made” by the plan to the service provider—here, ESI.
Matousek v. MidAmerican Energy Co., 51 F.4th 274, 279 (8th Cir. 2022).
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First, Plaintiffs allege that because ESI uses AWP as a benchmark, the Plan agreed
to pay to ESI prices for certain drugs that exceed NADAC prices, prices charged by pass-
through PBMs, and prices an uninsured person would pay at a retail pharmacy for the same
drugs. 	See id. ¶¶ 110, 114–43, 150–54. 	Plaintiffs contend these prices would have been
lower and that they would have paid lower contributions and out-of-pocket expenses had
Wells Fargo negotiated prices with ESI based on NADAC, retained a pass-through PBM,
or retained a different PBM entirely that did not steer Plan participants to its own pharmacy.
See id. ¶¶ 71, 108, 115, 121, 150–54, 219–28. 	Plaintiffs supplement these allegations in
the amended complaint by alleging that: (1) other PBMs—and, indeed, ESI—offer drug
pricing to other plans that are “based on the lowest of three benchmarks, one of which is
NADAC,” id. ¶ 60; (2) the “thousands” of other drugs covered by the Plan for which
NADAC information is not publicly available mostly are “different dosages or delivery
forms” of the drugs identified in the amended complaint, which are the “most commonly
prescribed drugs” under the Plan, id. ¶¶ 146–47; and (3) Wells Fargo negotiated lower
prescription drug prices with ESI after the Original Plaintiffs filed the initial complaint, id.
¶ 166.
Second, Plaintiffs allege that Wells Fargo paid excessive administrative fees to ESI.
See id. ¶¶ 155–62. 	Plaintiffs assert that if Wells Fargo had “adequately negotiated” with
ESI regarding these administrative fees, “the Plan and its participants/beneficiaries would
have saved millions of dollars.” 	Id. ¶ 169. 	Here, Plaintiffs supplement the allegations
made in the initial complaint by adding the fees the Plan paid to ESI in 2023 and including
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the relevant service codes from the Plan’s and comparator plans’ 2022 and 2023 Form
5500s. See id. ¶¶ 157–61.
Third, Plaintiffs allege that because of the Plan’s excessive payments to ESI for
administrative services and prescription drugs, they and other Plan participants effectively
received “lower wages” or experienced “limited wage growth.” 	Id. ¶ 285. 	Plaintiffs
contend that these harms would have been avoided had Wells Fargo more diligently
monitored the Plan’s prescription drug program. See id. These allegations are unchanged
from the initial complaint. Compare id., with ECF No. 1 ¶ 181.
Altogether, Plaintiffs allege that Wells Fargo’s “inattentiveness to prescription drug
costs and other fiduciary failures” caused Plaintiffs to pay more in contributions and out-
of-pocket costs than they otherwise would have paid, which Plaintiffs assert constitutes a
breach of Wells Fargo’s fiduciary duties under 29 U.S.C. § 1104(a). 	See ECF No. 64
¶¶ 229, 282–94. 	Plaintiffs contend that had Wells Fargo acted as a prudent fiduciary, it
could or should have: (1) wielded its “substantial bargaining power” to “demand and obtain
substantially better contractual terms” with ESI “relating to prices and the way in which
prices are determined” under the Plan, id. ¶ 164; (2) “solicit[ed] bids from pass-through
PBMs,” which “would have made clear that the Plan would save a substantial amount of
money for itself and its participants” by contracting with a pass-through PBM instead of
entering or renewing its contract with ESI, id. ¶ 170; and (3) considered “carving out the
specialty-drug program” from its contract with ESI, id. ¶ 176. 	Plaintiffs also allege that
Wells Fargo engaged in prohibited transactions under 29 U.S.C. § 1106(a)(1) because “the
compensation Wells Fargo agreed to pay [ESI] was not reasonable.” Id. ¶¶ 12, 295–309.
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Plaintiffs bring claims on behalf of the Plan under 29 U.S.C. § 1132(a)(2), id.
¶¶ 282–88, 295–302, and on behalf of a putative class of Plan participants under 29 U.S.C.
§ 1132(a)(3), id. ¶¶ 289–94, 303–09. They seek injunctive and other equitable relief in the
form of: (1) removing the Plan’s fiduciaries and appointing an independent fiduciary to run
the Plan; (2) removing and replacing ESI as the Plan’s PBM or, alternatively, requiring a
search for another PBM to replace ESI; (3) requiring Wells Fargo to “make good to the
Plan all losses to the Plan” and to “restore the Plan to the position it would have occupied
but for” the alleged fiduciary breaches and prohibited transactions; and (4) awarding
“fiduciary surcharge, equitable restitution, and/or other make-whole equitable relief to
Plaintiffs” and the putative class they represent. Id. ¶¶ 312–16.
PROCEDURAL BACKGROUND
The Original Plaintiffs filed the initial complaint on July 30, 2024, ECF No. 1, and
Wells Fargo moved to dismiss the initial complaint for lack of standing and for failure to
state a claim, ECF No. 28. On March 24, 2025, the Court entered an order concluding that
the Original Plaintiffs had not demonstrated standing, ECF No. 57, and entered judgment
dismissing the initial complaint, ECF No. 58.
The Court, however, did not address the Original Plaintiffs’ request—made in a
footnote at the end of their brief in opposition to Wells Fargo’s first motion to dismiss, see
ECF No. 38 at 50 n.26—for an opportunity to amend their complaint in the event the Court
granted Wells Fargo’s motion. 	The Original Plaintiffs subsequently sought the Court’s
permission to file a motion for reconsideration of the dismissal order, citing their
unaddressed request for leave to amend the initial complaint and contending that the Court
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erroneously relied upon abrogated case law in reaching its decision.3 See ECF No. 59 at 1–
2. 	Over Wells Fargo’s objection, see ECF No. 60, the Court vacated the judgment
dismissing the initial complaint and granted the Original Plaintiffs leave to file an amended
complaint, see ECF No. 62.
Plaintiffs—now including McKinley—filed their amended complaint on May 8,
2025, ECF No. 64, with an expert report attached as an exhibit to support their factual
allegations, ECF No. 64-1. Wells Fargo filed a motion to dismiss the amended complaint.
ECF No. 77. After Plaintiffs filed their response to Wells Fargo’s motion, but before Wells
Fargo filed its reply to Plaintiffs’ response, Professor Amy B. Monahan, an unrelated third
party, filed a motion seeking leave to file a brief of amicus curiae, ECF No. 86, and a
proposed amicus brief, ECF No. 88-1, in support of Plaintiffs’ opposition to Wells Fargo’s
motion.
3 	In analyzing the Original Plaintiffs’ claims under 29 U.S.C. § 1132(a)(3) in the first
dismissal order, the Court stated that “much of the retrospective equitable relief Plaintiffs
request bears the characteristics of monetary or compensatory relief” and that such relief
is “not available” under that provision, relying upon case law from multiple circuits,
including the Eighth Circuit, and the Supreme Court. See ECF No. 57 at 27–28. The cases
on which the Court relied, however, were decided before the Supreme Court’s decision in
CIGNA Corp. v. Amara, 563 U.S. 421 (2011), which held that equitable remedies that are
monetary or compensatory in nature “fall within the scope of the term ‘appropriate
equitable relief’” under Section 1132(a)(3). 	Id. at 442; see also Silva v. Metro. Life Ins.
Co., 762 F.3d 711, 724 (8th Cir. 2014) (acknowledging that “Amara changed the law” as
the Eighth Circuit “had previously interpreted it” pertaining to equitable remedies available
in ERISA cases). Although that portion of the first dismissal order was not exclusively (or
even primarily) the basis for the Court’s conclusion that the Original Plaintiffs lacked
standing to pursue their Section 1132(a)(3) claims, see ECF No. 57 at 25–28, the Court
acknowledges its error.
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ANALYSIS
Wells Fargo challenges Plaintiffs’ standing under Federal Rule of Civil Procedure
12(b)(1) and the sufficiency of their pleadings under Rule 12(b)(6). 	See generally ECF
No. 79. 	Article III standing is a jurisdictional issue and, accordingly, “is the threshold
question in every federal case.” 	Becker v. N.D. Univ. Sys., 112 F.4th 592, 595 (8th Cir.
2024) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)); see Carlsen v. GameStop, Inc.,
833 F.3d 903, 908 (8th Cir. 2016) (citation omitted) (“[I]f a plaintiff lacks standing to sue,
the district court has no subject-matter jurisdiction.”). 	The Court therefore must address
whether Plaintiffs have demonstrated standing before it may consider whether they have
stated plausible claims for relief. See Brownback v. King, 592 U.S. 209, 218 (2021).
As discussed above, the Court dismissed the initial complaint in this matter for lack
of standing. 	See ECF No. 57 at 12–28. 	Upon careful consideration of the allegations in
the amended complaint and the parties’ arguments, the Court concludes that Plaintiffs have
not remedied the deficiencies identified in the Court’s previous order and dismisses the
amended complaint for lack of standing.
I. 	Legal Standard
Article III of the U.S. Constitution “restricts federal courts to the resolution of cases
and controversies.” 	Davis v. FEC, 554 U.S. 724, 732 (2008). 	“For there to be a case or
controversy under Article III, the plaintiff must have a ‘personal stake’ in the case—in other
words, standing.” 	TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021) (citation
omitted). To demonstrate standing, a plaintiff must plausibly allege: (1) they suffered an
injury in fact; (2) the injury is fairly traceable to the defendant’s conduct; and (3) the injury
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is likely to be redressed by a favorable judicial decision. Arc of Iowa v. Reynolds, 94 F.4th
707, 710 (8th Cir. 2024) (citing Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)). 	To
establish a cognizable injury, the plaintiff “must show that he or she suffered ‘an invasion
of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent,
not conjectural or hypothetical.’” 	Scott v. UnitedHealth Grp., Inc., 540 F. Supp. 3d 857,
861 (D. Minn. 2021) (quoting Spokeo, 578 U.S. at 339). Plaintiffs, as the parties invoking
federal court jurisdiction, bear the burden of establishing these elements, Spokeo, 578 U.S.
338, and they must do so “for each claim that they press and for each form of relief that
they seek,” TransUnion, 594 U.S. at 431.
Because standing implicates a court’s subject-matter jurisdiction, challenges to a
plaintiff’s standing are analyzed under Federal Rule of Civil Procedure 12(b)(1). Mekhail
v. N. Mem’l Health Care, 726 F. Supp. 3d 916, 931 (D. Minn. 2024). The Court’s analysis
under Rule 12(b)(1) depends on whether the challenger raises a “facial” or “factual” attack.
Scott, 540 F. Supp. 3d at 861. In a facial challenge, the Court “restricts itself to the face of
the pleadings” and “the non-moving party receives the same protections as it would
defending against a motion brought under Rule 12(b)(6).” 	Osborn v. United States,
918 F.2d 724, 729 n.6 (8th Cir. 1990). 	By contrast, in a factual challenge, the Court
“considers matters outside the pleadings.” Id. Here, the Court need not look further than
the amended complaint and the Plan documents submitted by Wells Fargo, which are
“necessarily embraced by the complaint.” 	Rossi v. Arch Ins. Co., 60 F.4th 1189, 1193
(8th Cir. 2023) (citation omitted). And because “documents ‘necessarily embraced by the
complaint’ are not matters outside the pleading,” Enervations, Inc. v. Minn. Mining & Mfg.
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Co., 380 F.3d 1066, 1069 (8th Cir. 2004) (citations omitted), the Court construes Wells
Fargo’s motion as a facial challenge to Plaintiffs’ standing and applies the standard for
reviewing motions to dismiss under Rule 12(b)(6), see Osborn, 918 F.2d at 729 n.6.
The Court accepts the factual allegations in the amended complaint as true and
draws all reasonable inferences in Plaintiffs’ favor. 	Gorog, 760 F.3d at 792. 	The Court
will not, however, give the benefit of “unreasonable inferences,” Brown v. Medtronic, Inc.,
628 F.3d 451, 461 (8th Cir. 2010), and is “not bound to accept as true a legal conclusion
couched as a factual allegation,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation
omitted). Although the amended complaint need not contain “detailed factual allegations,”
it must contain facts with enough specificity to state a claim that is “plausible on its face”
and to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, 570 (2007).
II. 	Plaintiffs’ Expert Report and Amicus Brief in Support of Plaintiffs
Before turning to the specific issues raised in Wells Fargo’s motion to dismiss, the
Court first will address whether, and to what extent, it considers Plaintiffs’ expert report
and Professor Monahan’s proposed amicus brief. Wells Fargo asks the Court to disregard
or to accord little weight to both filings. See ECF No. 79 at 21–22; ECF No. 91 at 13–14.
Beginning with Plaintiffs’ expert report, the Court applies the standard for assessing
motions under Federal Rule of Civil Procedure 12(b)(6) to Wells Fargo’s motion for the
reasons discussed above, so the Court considers the factual information in Plaintiffs’ expert
report to the extent it is alleged in the amended complaint. See ECF No. 64 ¶¶ 263–70; see
also Rossi, 60 F.4th at 1193 (citation omitted) (explaining that courts deciding a Rule 12(b)
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motion may consider “documents whose contents are alleged in a complaint”). The Court
accords no weight, however, to the expert report’s conclusory opinions. See Lerner v. Nw.
Biotherapeutics, 273 F. Supp. 3d 573, 590 (D. Md. 2017) (“Plaintiffs may not substitute
factual allegations with the speculation of their expert witness.”); In re MannKind Sec.
Actions, 835 F. Supp. 2d 797, 820 (C.D. Cal. 2011) (citation omitted) (“Conclusory
allegations and speculation carry no additional weight merely because a plaintiff placed
them within the affidavit of a retained expert.”); see also Fin. Acquisition Partners LP v.
Blackwell, 440 F.3d 278, 285–86 (5th Cir. 2006) (noting that considering an expert opinion
for 	purposes 	of 	a 	Rule 	12(b)(6) 	motion 	“might 	require 	ruling 	on 	the 	expert’s
qualifications,” which is “inappropriate at the pleading stage”).
As for Professor Monahan’s proposed amicus brief, “[t]here is no formal rule
governing the standard by which to evaluate whether to grant a motion requesting leave to
file an amicus curiae brief,” and the decision whether to grant or refuse leave is a matter
committed to the Court’s discretion. 	Larson v. Allina Health Sys., No. 17-cv-3835
(SRN/TNL), 2020 WL 583082, at *2 (D. Minn. Feb. 6, 2020). 	The Court has reviewed
and considered the proposed amicus brief and Wells Fargo’s arguments in response to it in
deciding Wells Fargo’s motion and, in its discretion, grants Professor Monahan’s motion.4
III. 	ERISA Claims
ERISA imposes “twin duties of loyalty and prudence” upon fiduciaries of ERISA-
governed plans which require them “to act ‘solely in the interest of [plan] participants and
4 	The Court considers the proposed brief (ECF No. 88-1) to be properly filed.
Professor Monahan need not re-file her proposed brief as a “final” version.
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beneficiaries’ and to carry out their duties ‘with the care, skill, prudence, and diligence
under the circumstances then prevailing’ that a prudent [person] ‘acting in a like capacity
and familiar with such matters would use.’” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585,
595 (8th Cir. 2009) (first alteration in original) (quoting 29 U.S.C. § 1104(a)(1)). 	In the
first dismissal order, the Court noted the “decisive importance” to the standing analysis of
determining whether the Plan is a defined-benefit or defined-contribution plan:
A defined-benefit plan is “in the nature of a contract.” [Thole v. U.S. Bank
N.A. (“Thole II”), 590 U.S. 538, 542–43 (2020)]. 	Such plans are typically
“funded by employer or employee contributions, or a combination of both,”
and consist of “a general pool of assets rather than individual dedicated
accounts.” Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 439 (1999); see
Scott, 540 F. Supp. 3d at 862. . . . 	Defined-contribution plans, by contrast,
“provide[] 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.” 	Scott, 540 F. Supp. 3d at 862
(quoting 29 U.S.C. § 1002(34)).
The 	key 	difference, 	as 	courts 	have 	explained, 	is 	that 	“in 	a 	defined-
contribution plan, such as a 401(k) plan, the [participants’] benefits are
typically tied to the value of their accounts,” Thole II, 590 U.S. at 540, while
“benefits under a defined-benefit plan ‘do not fluctuate with the value of the
plan or because of the plan fiduciaries’ good or bad investment decisions,”
Scott, 540 F. Supp. 3d at 862 (quoting Thole II, 590 U.S. at 540); see also
Thole II, 590 U.S. at 543 (“The plan participants’ benefits are fixed and will
not change, regardless of how well or poorly the plan is managed.”). Thus,
“a necessary predicate to a participant bringing broader claims on behalf of
[a defined-benefit] plan is a showing of a concrete and particularized injury
to the participant herself,” not just the plan, and that individual harm must
“affect [the participant’s] benefits” to confer standing to sue. 	Scott, 540 F.
Supp. 3d at 865; see also Thole II, 590 U.S. at 542–43.
ECF No. 57 at 14–15. 	The Court concluded that the Plan is “closely analogous to the
defined-benefit plan at issue in Thole [II]” because Plaintiffs were (or are) “entitled to their
contractually defined benefits regardless of the value of the [Plan’s] assets.” 	Id. at 15
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(alterations in original) (quoting Scott, 540 F. Supp. 3d at 864). Plaintiffs do not dispute—
and, if anything, tacitly accept—this conclusion, see ECF No. 85 at 45, and the Court sees
no reason to depart from it now.5
Under Section 1132(a)(2), a plan participant may seek only the relief provided by
29 U.S.C. § 1109. 	29 U.S.C. § 1132(a)(2). 	Section 1109, in turn, provides that plan
fiduciaries found to have breached their duties “shall be personally liable to make good to
5 	Professor Monahan contends that because “welfare plans,” like the Plan, are not
“pension plans,” they “are not subject to the legal distinctions between ‘defined benefit’
and ‘defined contribution’ plans that were central to the Supreme Court’s analysis” in
Thole II. ECF No. 88-1 at 4. It certainly is true that welfare plans are distinct from pension
plans in several respects. See Knudsen v. MetLife Grp., Inc., 117 F.4th 570, 579–80 (3d Cir.
2024). Even so, Professor Monahan’s attempt to avoid the import of 	Thole II 	is
unpersuasive.
Although welfare plans do not fall neatly into the defined-benefit or defined-
contribution categories, this Court and other courts have concluded that welfare plans like
the Plan are “closely analogous to the defined-benefit plan at issue” in Thole II. 	ECF
No. 57 at 15 (quoting Scott, 540 F. Supp. 3d at 864); see Smith v. Med. Benefit Adm’rs Grp.,
Inc., 639 F.3d 277, 283 (7th Cir. 2011) (“The plan at issue here . . . is a group health
insurance plan, which is the kind of defined benefit plan that . . . typically holds no assets
in trust for any individual participant.”); see also Winsor v. Sequoia Benefits & Ins. Servs.,
LLC, 62 F.4th 517, 528 (9th Cir. 2023) (“Although the Tech Benefits Program is not a
defined-benefit pension plan, it similarly provides a fixed set of benefits as promised in
plan documents.”).
Professor Monahan argues that “the better analogy is to section 401(k) plan fee
litigation.” 	ECF No. 88-1 at 8. 	But those kinds of cases typically involve defined-
contribution plans; indeed, despite contending that the Plan is not subject to the legal
distinctions between defined-benefit and defined-contribution plans, the individual cases
on which Professor Monahan relies involved defined-contribution retirement plans. 	See
Hughes v. Nw. Univ., 595 U.S. 170, 173 (2022) (involving “two retirement plans” that were
“defined-contribution plans”); Davis v. Wash. Univ. in St. Louis, 960 F.3d 478, 481 (8th Cir.
2020) (involving a “retirement-savings plan[]” that was “a defined-contribution plan”);
Larson v. Allina Health Sys., 350 F. Supp. 3d 780, 788 (D. Minn. 2018) (involving “403(b)
and 401(k) Plans” that were “defined contribution plans”). 	For the reasons discussed in
Part III.B of the Analysis, these kinds of cases are distinguishable and inapplicable—and
not merely because they involve defined-contribution plans.
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[the] plan any losses . . . resulting from each such breach, and to restore to [the] plan any
profits . . . which have been made through use of assets of the plan.” 29 U.S.C. § 1109(a).
A Section 1132(a)(2) plaintiff “acts ‘in a representative capacity on behalf of the plan as a
whole,’ because § 1109 is designed to ‘protect the entire plan,’” and relief under Section
1132(a)(2) therefore must “inure[] to the be benefit of the plan as a whole.” 	Pilger v.
Sweeney, 725 F.3d 922, 926 (8th Cir. 2013) (quoting Mass. Mut. Life Ins. Co. v. Russell,
473 U.S. 134, 140, 142, 142 n.9 (1985)); see 29 U.S.C. § 1109(a). And when a defined-
benefit plan is at issue, Section 1132(a)(2) “does not provide a remedy for individual
injuries distinct from plan injuries.” 	Pilger, 725 F.3d at 926 (quoting LaRue v. DeWolff
Boberg & Assocs., Inc., 552 U.S. 248, 256 (2008)).
By contrast, a participant who brings a claim under Section 1132(a)(3) may seek “to
enjoin any act or practice which violates” ERISA or “to obtain other appropriate equitable
relief” to redress a violation for which Section 1132 otherwise does not provide an adequate
remedy. 29 U.S.C. § 1132(a)(3); see Varity Corp. v. Howe, 516 U.S. 489, 510–12 (1996)
(describing Section 1132(a)(3) as a “‘catchall’ provision[]” which offers “relief for injuries
caused by violations that [Section 1132] does not elsewhere adequately remedy”). 	Such
equitable relief may include surcharge—that is, individual “monetary compensation for a
loss resulting from a [fiduciary’s] breach of duty.” CIGNA Corp. v. Amara, 563 U.S. 421,
441 (2011) (internal quotation marks omitted) (citation omitted).
Whether a plan participant proceeds under Section 1132(a)(2) or (a)(3), “[t]here is
no ERISA exception to Article III.” Thole II, 590 U.S. at 547. Accordingly, to recover for
breach of fiduciary duty under ERISA, the participant “must show actual injury,” both
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individually and to the plan. Thole v. U.S. Bank, Nat’l Ass’n, 873 F.3d 617, 630 (8th Cir.
2017); see Amara, 563 U.S. at 444 (holding that relief under Section 1132(a)(3) is available
“only upon a showing of actual harm” caused by a fiduciary’s breach of duty).
Plaintiffs present the same theory of standing now as they did initially: (1) Plaintiffs
individually were injured by paying higher contributions for their insurance coverage and
out-of-pocket costs for their prescription drugs than they should have, and the Plan was
injured by Wells Fargo causing it to pay inflated prices for prescription drugs and excessive
administrative fees; (2) those injuries are traceable to Wells Fargo’s purported fiduciary
breaches, namely Wells Fargo’s failure to closely monitor the Plan’s prescription drug costs
and to negotiate a better deal with ESI; and (3) the injuries will be redressed and prevented
from recurring by the relief Plaintiffs seek. See ECF No. 85 at 17–32. As discussed below,
despite the supplemented factual allegations in Plaintiffs’ amended complaint, their theory
of standing—whether premised on higher contributions or increased out-of-pocket costs—
still falls short for essentially the same reasons the Court previously identified: “their
alleged harm is speculative and, ultimately, not redressable.” ECF No. 57 at 12.
A. 	Participant Contributions
“Of critical importance” to the Court’s analysis in the first dismissal order was that
the Plan vests Wells Fargo with “sole discretion” to set participant contribution rates. ECF
No. 57 at 20 (quoting ECF No. 31-3 at 9); see also ECF No. 31-2 at 22. Not only that, but
participant contribution amounts “may be affected by several factors having nothing to do
with prescription drug benefits, like whether a participant uses tobacco, whether a
participant obtains coverage for her spouse or children in addition to herself, and a
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participants’ ‘compensation category.’” ECF No. 57 at 20–21 (quoting ECF No. 31-3 at 9).
The Court noted that “the Plan authorizes Wells Fargo to require participants to fund all
Plan expenses, not just expenses related to their own individual benefits,” but the Plan does
not require any contribution from Wells Fargo, “notwithstanding that Wells Fargo supplied
the bulk of Plan funding during the relevant period.” ECF No. 57 at 21; see ECF No. 31-2
at 22 (providing that “[p]articipants shall be responsible for payment of applicable
premiums and contributions to the Plan,” but that Wells Fargo “may pay such contributions
to the Plan” (emphasis added)). 	Finally, the Court observed that “Plaintiffs’ selective
allegations regarding the markups on a subset of prescription drugs in the Plan’s formulary”
represented “only a subset of the total benefits whose costs Plan participants’ contributions
may be used to cover” were “not sufficient to establish a causal connection between
Plaintiffs’ increased costs and ESI’s administrative fees.” ECF No. 57 at 22. As a result,
the Court concluded that “it is speculative that the allegedly excessive fees” or allegedly
higher prices for prescription drugs paid by the Plan to ESI “had any effect at all on
Plaintiffs’ contribution rates.” 	Id. at 21 (internal quotation marks omitted) (citation
omitted).
Nothing in Plaintiffs’ amended complaint meaningfully addresses, much less cures,
these issues. As an initial matter, Plaintiffs “d[o] not allege that they were denied any health
benefits promised under the Plan, nor d[o] they allege that the Plan was insolvent or
otherwise incapable of continuing to provide covered health benefits.” Gonzales de Fuente
v. Preferred Home Care of N.Y. LLC, 858 F. App’x 432, 434 (2d Cir. 2021). Instead, they
assert that had Wells Fargo negotiated a better deal with ESI or retained a different PBM
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altogether, the Plan’s spending would have decreased, which necessarily would have
reduced the amount they were required to pay in contributions. See ECF No. 85 at 12–15.
But “these allegations are general in nature and do not solve the variable of [Wells Fargo’s]
discretion in setting employee contribution rates.” Winsor v. Sequoia Benefits & Ins. Servs.,
LLC, 62 F.4th 517, 524 (9th Cir. 2023).
Plaintiffs rely heavily on their allegation that “Wells Fargo intentionally set
participant contributions at 25–26% of overall Plan health care costs,” ECF No. 85 at 23
(quoting ECF No. 64 ¶ 240), which “inherently cause[s]” participant contributions to “rise
and fall in lockstep with Plan spending,” id. 	This is superficially seductive. 	It seems
possible that if the price of drugs from the PBM goes down, the participants’ contributions
would go down by the same amount. But this gets precisely at the core of the problem with
Plaintiffs’ theory: Plaintiffs’ contributions are used to cover overall Plan expenses, not
specifically or exclusively their prescription drug benefits or ESI’s administrative fees. It
is not a one-to-one relationship. And the Plan documents clearly show that “participant
contribution amounts may be affected by several factors having nothing to do with
prescription drug benefits.” ECF No. 57 at 20–21. As the Court explained before, “[t]here
are simply too many variables in how Plan participants’ contribution rates are calculated”
to 	infer 	that 	Wells 	Fargo’s 	payments 	to 	ESI 	for 	prescription 	drug 	payments 	or
administrative fees were the 	but-for 	cause 	of any increases 	in 	Plaintiffs’ required
contributions. Id. at 22; see Winsor, 62 F.4th at 524–25 (holding plaintiffs failed to plead
injury-in-fact because their allegation that the employer set contributions “based on overall
premium costs” was not plausible given the employer’s “broad discretion” to set employee
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contribution rates, which were calculated based on “various factors and discussion” rather
than “a specific formula or set of factors”); see also Knudsen v. MetLife Grp., Inc., 117
F.4th 570, 574, 581–82 (3d Cir. 2024) (holding it was “speculative” that the employer’s
“alleged misappropriation of drug rebate money,” which plan documents provided were to
be applied to plan expenses, “resulted in Plaintiffs paying more for their health insurance
or had any effect at all”); Horvath v. Keystone Health Plan E., Inc., 333 F.3d 450, 457
(3d Cir. 2003) (concluding that whether plan savings would pass to plan participants was
“too speculative to serve as the basis for a claim of individual loss”).
Further, there is no plausible allegation in the amended complaint to suggest that
this exercise of Wells Fargo’s total discretion to set participant contribution rates violates
the terms of the Plan. 	See Gonzalez de Fuente, 858 F. App’x at 433–34 (quoting US
Airways, Inc. v. McCutchen, 569 U.S. 88, 101 (2013)) (“ERISA . . . requires fiduciaries to
discharge their duties ‘in accordance with the documents and instruments governing the
plan’ rather than any particular accounting formula.”). The Court previously noted that it
does not read Thole II “to hold, as a matter of law, that a plaintiff suing a fiduciary of an
ERISA-governed defined-benefit health plan cannot ever establish standing on a theory of
harm premised on excessive . . . costs.” ECF No. 57 at 19. But that reading of Thole II is
contingent 	upon 	there 	being 	some 	specific 	underlying 	misconduct—for 	example,
“breaching the terms of the plan[],” id.—that can be plausibly connected to the purported
harm. There are no allegations from which the Court can infer such misconduct occurred
here, much less that it was the but-for cause of Plaintiffs’ alleged injury. 	See Knudsen,
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117 F.4th at 581–82; cf. McCutchen, 569 U.S. at 100 (explaining that ERISA protects
“contractually defined benefits”).
The addition of McKinley as a Plaintiff does not change the analysis. It is true that
McKinley’s status as a current Plan participant would make certain prospective relief
available to her that would not be available to the Original Plaintiffs—assuming, of course,
that she could demonstrate a cognizable injury. See ECF No. 85 at 21; ECF No. 57 at 26–
27. To that point, Plaintiffs emphasize that because McKinley is a participant in the Plan
through COBRA, she is required to pay “both the employer share and the employee share”
of premium contributions, ECF No. 64 ¶ 18, which must “be based on total plan expenses,”
ECF No. 85 at 22 (first citing ECF No. 64 ¶ 258; and then citing 29 U.S.C. § 1164(2)). But
that fact does not move the needle here given the discretion the Plan confers on Wells Fargo
to set contribution amounts. 	What is of critical importance here, again, is that the Plan
“vests Wells Fargo with ‘sole discretion’ to set participant contribution rates.” ECF No. 57
at 20. 	And the Plan documents permit Wells Fargo to require all Plan participants—not
just those who, like McKinley, are participants through COBRA—to pay contributions
sufficient to cover all Plan expenses, with no requirement that Wells Fargo make any
contributions. 	See ECF No. 31-2 at 22. 	If Wells Fargo exercised its discretion in this
manner and chose to cease its own contributions, that would almost assuredly increase
participant contributions, but it would not, by itself, constitute a violation of ERISA. See
Gonzalez de Fuente, 858 F. App’x at 433–34; Knudsen, 117 F.4th at 582. Further, Plaintiffs
do not dispute that McKinley’s contributions were calculated based on estimated Plan
expenses as required by COBRA. 	See 42 U.S.C. § 1164(2). 	Plaintiffs instead merely
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speculate that a decrease in the Plan’s prescription drug expenses or ESI’s administrative
fees necessarily would have resulted in lower contributions. This again overlooks that the
Plan’s overall expenses account for more than those specific line items and that participant
contributions are “affected by several factors having nothing to do with prescription drug
benefits.” 	ECF No. 57 at 20–21. As with the others, McKinley cannot show “actual or
imminent injury to the Plan itself” that causes injury to her interests in the Plan to establish
standing. Id. at 26 (citation omitted). And there is no allegation that McKinley did not get
all the benefits to which she was entitled. 	See ECF No. 64 ¶ 228; see also Scott, 540 F.
Supp. 3d at 862 (finding ERISA plaintiffs had not demonstrated injury because they did
“not allege that they have been denied any benefits to which they are entitled”).
Finally, Plaintiffs’ theory of redressability does not demonstrate that “it is likely, as
opposed to merely speculative, that the injury will be redressed by a favorable decision.”
Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000).
As noted, Plaintiffs contend that Plan expenses necessarily would have been reduced and
that they consequently would have been required to pay less in contributions if Wells Fargo
had negotiated a better deal with ESI or retained a different PBM. See ECF No. 85 at 12–
15. 	But as the Court already explained, Plaintiffs’ argument “assumes that Wells Fargo
would maintain the 75-25 employer-employee contribution ratio” even though “nothing in
the Plan requires Wells Fargo to do so.” ECF No. 57 at 23; cf. Pendleton v. QuikTrip Corp.,
567 F.3d 988, 993 (8th Cir. 2009) (“Whether an employee is entitled to benefits under
ERISA is controlled by the plan documents and not the customs of a company.”). Plaintiffs
dismiss this reasoning as “legally irrelevant,” ECF No. 85 at 29, but they do not “explain
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how a court could place [Wells Fargo’s or ESI’s] ill-gotten profits directly into plaintiffs’
pockets when plaintiffs have not alleged how a court could identify the discrete profits
supposedly 	owed 	to 	them, 	given 	[Wells 	Fargo’s] 	discretion 	in 	setting 	employee
contribution amounts and the manner in which [Wells Fargo] exercised this discretion,”
Winsor, 62 F.4th at 526 (internal quotation marks omitted). Nor do Plaintiffs advance any
persuasive argument that ERISA authorizes the Court to order Wells Fargo to lower
participant contribution amounts prospectively when the Plan’s terms give Wells Fargo the
exclusive authority to set those amounts.6 And even if the Court ordered Wells Fargo to
remit a one-time payment to the Plan to remedy any purported past overcharges, nothing
would prevent Wells Fargo from “offset[ting] its own contributions” going forward “while
making no reduction to the contributions it require[s]” from Plaintiffs. Id. at 527; see also
Horvath, 333 F.3d at 457.
For these reasons, the Court concludes that Plaintiffs’ allegations relating to
excessive participant contributions are too speculative and conjectural to confer standing.
B. 	Out-of-Pocket Costs
Plaintiffs’ theory of standing as it pertains to out-of-pocket costs fails for essentially
the same reasons, but it presents additional issues worth addressing. 	Plaintiffs’ theory is
rooted in their assertion that 	they 	were 	required to pay 	higher prices 	for 	certain
prescriptions than pharmacies paid, on average, to acquire those drugs. 	See ECF No. 64
6 	Although reformation is an available remedy in equity, it has traditionally been
“used to prevent fraud.” Amara, 563 U.S. at 440. Plaintiffs raise no allegations of fraud
or that Wells Fargo (or ESI, for that matter) provided “false or misleading information”
relating to the Plan. Id.
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¶¶ 220, 222, 224, 226, 228. 	While these allegedly excessive costs are more readily
quantifiable, Plaintiffs’ argument is, in effect, another way of asserting injury on the basis
that Plaintiffs “might have received” better or different benefits than what they were
promised under the Plan’s terms, which is insufficient to confer standing. See Gonzalez de
Fuente, 858 F. App’x at 433–34; cf. Burgio & Campofelice, Inc. v. N.Y. State Dep’t of Lab.,
107 F.3d 1000, 1007 (2d Cir. 1997) (quoting Alessi v. Raybestos-Manhattan, Inc., 451 U.S.
504, 511 (1981)) (“Under ERISA, ‘private parties, not the Government, control the level
of benefits.’”). Again, Plaintiffs do not allege that they did not receive the benefits to which
they were entitled under the Plan or that the Plan was ever at risk of insolvency or inability
to provide participant benefits. See Gonzalez de Fuente, 858 F. App’x at 434; Scott, 540 F.
Supp. 3d at 862. 	This is important because, as already discussed, the Plan is “closely
analogous” 	to 	a 	defined-benefit 	plan 	in 	which 	“participants 	are 	entitled 	to 	their
contractually defined benefits regardless of the value of the [Plan’s] assets.” Scott, 540 F.
Supp. 3d at 864 (emphasis added); see Thole II, 590 U.S. at 542–43. There is no allegation
that Plaintiffs’ benefits were ever diminished or that they were required to pay more than
they were promised or what is authorized by the Plan’s terms. See Scott, 540 F. Supp. 3d
at 863; see also Gonzalez de Fuente, 858 F. App’x at 433–34; cf. McCutchen, 569 U.S.
at 100 (explaining that ERISA protects “contractually defined benefits”).
The cases on which Plaintiffs rely are distinguishable either because they involved
defined-contribution plans, were later abandoned, or did not involve ERISA claims. 	For
instance, Plaintiffs rely on Braden v. Wal-Mart Stores to support their argument that the
allegedly excessive prices they were required to pay for certain prescription drugs
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constitute a cognizable injury. ECF No. 85 at 19. In that case, the Eighth Circuit held that
the plaintiff, a participant with an individual investment account in his employer’s defined-
contribution 401(k) plan, had standing under ERISA to sue for breach of fiduciary duty
because of his employer’s alleged mismanagement of the plan, including allegations that
the plan fiduciaries agreed to pay excessive fees to a third-party service provider and failed
to wield the plan’s “substantial bargaining power” to secure more favorable and cost-
effective benefits. See Braden, 588 F.3d at 589–90, 592. The crucial distinction, however,
is that the plaintiff in Braden alleged that his employer’s mismanagement resulted in losses
both to the plan itself and to the value of his specific, individual investment account—that
is, one of his benefits under the plan. See id. Plaintiffs here do not allege that their benefits
under the Plan were diminished; they allege only that they and the Plan should have paid
less for those benefits. See ECF No. 64 ¶¶ 220, 222, 224, 226, 228. Even assuming as true
that the Plan’s assets diminished because of Wells Fargo’s alleged mismanagement and
overpayments to ESI, that would constitute an injury only to the Plan, not to Plaintiffs,
because Plaintiffs “do not have any claim” to the Plan’s assets. 	Scott, 540 F. Supp. 3d
at 863; see Jacobson, 525 U.S. at 439–40 (explaining that a defined-benefit plan “consists
of a general pool of assets” and that “no plan member has a claim to any particular asset
that composes a part of the plan’s general asset pool”). Instead, Plaintiffs’ “only claim is
to receive the benefits to which they are entitled” under the Plan, Scott, 540 F. Supp. 3d
at 863, and Plaintiffs do not dispute that they received their benefits, see ECF No. 64
¶¶ 219–28.
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Plaintiffs also rely on Lewandowski v. Johnson & Johnson (“Lewandowski I”),
No. 24-cv-671 (ZNQ) (RLS), 2025 WL 288230 (D.N.J. Jan. 24, 2025), where the court
was confronted with nearly identical allegations. 	See id. at *1–2. The court in that case
concluded that the plaintiff had “suffered an injury-in-fact” based on her assertion that she
“pa[id] higher prices for drugs” under her employer’s health plan, “causing her to pay more
out-of-pocket.” 	Id. at *5; see ECF No. 85 at 18. 	That court nevertheless dismissed the
plaintiff’s claim for lack of standing because it concluded her alleged injury was not
redressable.7 Lewandowski I, 2025 WL 288230, at *5. After granting the plaintiff leave to
amend her complaint, however, that court later dismissed her claims again for lack of
standing and adopted this Court’s reasoning in the earlier dismissal order entered in this
case, including as it relates to the remaining standing elements. 	See Lewandowski v.
Johnson & Johnson (“Lewandowski II”), No. 24-cv-671 (ZNQ) (RLS), 2025 WL 3296009,
at *4–7 (D.N.J. Nov. 26, 2025) (“This Court finds Navarro persuasive and applies that
court’s reasoning.”).
Plaintiffs also cite Blue Cross & Blue Shield of N.C. v. Rite Aid Corp., 519 F. Supp.
3d 522 (D. Minn. 2021), which held that the plaintiffs had alleged an injury in fact by
pleading that they were “overcharged” for prescription drugs. Id. at 532; see ECF No. 85
7 	For context, the court in Lewandowski I found the plaintiff’s injury was not
redressable because she had “reached her prescription drug cap for each year she
assert[ed]” in her complaint. 2025 WL 288230, at *5. As a result, the court concluded that
even if the defendants “were to reimburse [her] for her out-of-pocket costs on a given
drug—that is, the higher amount of money she spent as a result of Defendants’ breaches—
that money would be owed to her insurance carrier to reimburse it for its expenditures on
other drugs that same year.” Id.
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at 18. But that case is inapposite because it did not involve ERISA in any way; rather, it
dealt with allegations by various insurance companies that a retail pharmacy company
“fraudulently inflated” the prices for certain prescription drugs. Blue Cross & Blue Shield,
519 F. Supp. 3d at 532. As a result, the insurance companies allegedly paid more for those
drugs than the amount the insurance companies should have paid based on a formula the
parties had contractually negotiated. Id. Plaintiffs here raise no allegations of fraud or that
Wells Fargo and ESI calculated the Plan’s drug prices using a method that was not
authorized or disclosed by the Plan.
To be sure, the price comparisons alleged in Plaintiffs’ complaint are staggering.
See ECF No. 64 ¶¶ 125–37, 140–43. 	But it fundamentally cannot be the case that
participants in a plan like the one at issue here are injured any time the contractually defined
benefits to which they are entitled are available at lower cost to non-participants, absent
any express promise by the plan fiduciary to provide those benefits at that lower cost or
any specific allegations that the fiduciary’s misconduct diminished those benefits or
rendered the plan unable to provide them. See Scott, 540 F. Supp. 3d at 863–65; Gonzalez
de Fuente, 858 F. App’x at 434. 	That is, at bottom, the premise upon which Plaintiffs’
allegations rest but “pleadings must be something more than an ingenious academic
exercise in the conceivable” to meet the Article III standing threshold. 	United States v.
Students Challenging Regul. Agency Procs., 412 U.S. 669, 688 (1973); see also Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (“Where a complaint pleads facts that
are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between
possibility and plausibility of entitlement to relief.’” (internal quotation marks omitted)).
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As a result, the Court concludes that Plaintiffs’ allegations are insufficient to confer
standing, and their amended complaint is dismissed.8 	See Lewandowski II, 2025 WL
3296009, at *6–7; Knudsen, 117 F.4th at 582 (holding that pleadings rooted in speculation
and conjecture “are not sufficient to support Article III standing”).
ORDER
Based on the foregoing, and on all the files, records, and proceedings in this matter,
IT IS HEREBY ORDERED that:
1. 	Professor Amy B. Monahan’s Motion for Leave to File a Brief of Amicus
Curiae (ECF No. 86) is GRANTED;
2. 	Wells Fargo’s Motion to Dismiss the Amended Class Action Complaint (ECF
No. 77) is GRANTED; and
3. 	Plaintiffs’ Amended Complaint (ECF No. 64) is DISMISSED for lack of
jurisdiction.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: March 3, 2026 	s/Laura M. Provinzino
Laura M. Provinzino
United States District Judge
8 	Because the Court dismisses Plaintiffs’ amended complaint for lack of standing, the
Court need not address Wells Fargo’s alternative basis for dismissal under Rule 12(b)(6).
See Brownback, 592 U.S. at 218 (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 101–02 (1998)) (“[A] court cannot issue a ruling on the merits ‘when it has no
jurisdiction’ because ‘to do so is, by very definition, for a court to act ultra vires.”).
CASE 0:24-cv-03043-LMP-DLM Doc. 99 Filed 03/03/26 Page 30 of 30