`others similarly situated,
` No. 17-15864
`D.C. No.
`Appeal from the United States District Court
`for the Northern District of California
`Nathanael M. Cousins, Magistrate Judge, Presiding
`Argued and Submitted October 18, 2018
`San Francisco, California


`Filed November 28, 2018
`Before: J. Clifford Wallace and Susan P. Graber, Circuit
`Judges, and Robert S. Lasnik,* District Judge.
`Opinion by Judge Wallace
`Employee Retirement Income Security Act
`The panel reversed the district court’s grant of summary
`judgment in favor of the defendants in an ERISA action on
`the ground that the limitations period had expired.
` A former employee and participant in Intel’s retirement
`plans sued the company for allegedly investing retirement
`funds in violation of ERISA section 1104. The district court
`concluded that the employee had the requisite “actual
`knowledge” to trigger ERISA’s three-year limitations
`period, 29 U.S.C. § 1113(2).
`The panel held that a two-step process is followed in
`determining whether a claim is barred by section 1113(2).
`First, the court isolates and defines the underlying violation
`on which the plaintiff’s claim is founded. Second, the court
`inquires whether the plaintiff had “actual knowledge” of the
`alleged breach or violation. The panel held that actual
`* The Honorable Robert S. Lasnik, United States District Judge for
`the Western District of Washington, sitting by designation.
`** This summary constitutes no part of the opinion of the court. It
`has been prepared by court staff for the convenience of the reader.


`knowledge does not mean that a plaintiff had knowledge that
`the underlying action violated ERISA, nor does it merely
`mean that a plaintiff had knowledge that the underlying
`action occurred. Rather, the defendant must show that the
`plaintiff was actually aware of the nature of the alleged
`breach more than three years before the plaintiff’s action was
`filed. In an ERISA section 1104 case, the plaintiff must have
`been aware that the defendant had acted and that those acts
`were imprudent. Disagreeing with the Sixth Circuit, the
`panel held that the plaintiff must have actual knowledge,
`rather than constructive knowledge.
`The panel concluded that disputes of material fact as to
`the plaintiff’s actual knowledge precluded summary
`judgment, and remanded the case to the district court for
`further proceedings.
`Matthew W.H. Wessler (argued), Jonathan E. Taylor, and
`Rachel Bloomekatz, Gupta Wessler PLLC, Washington,
`D.C.; Joseph A. Creitz, Creitz & Serebin LLP, San
`Francisco, California; Ryan T. Jenny and Gregory Y. Porter,
`Bailey & Glasser LLP, Washington, D.C.; R. Joseph Barton,
`Block & Leviton LLP, Washington, D.C.; for Plaintiff-
`John J. Buckley Jr. (argued), Juli Ann Lund, David S.
`Kurtzer-Ellenbogen, and Daniel F. Katz, Williams &
`Connolly LLP, Washington, D.C.; Scott P. Cooper,
`Proskauer Rose LLP, Los Angeles, California; Myron D.
`Rumeld, Proskauer Rose LLP, New York, New York; for


`WALLACE, Circuit Judge:
`A former employee and participant in Intel’s retirement
`plans sued the company for allegedly investing retirement
`funds in violation of the Employee Retirement Income
`Security Act (ERISA). Intel moved to dismiss the complaint
`on the ground that the limitations period for his claims had
`expired. The magistrate judge1 converted Intel’s motion to
`dismiss into a motion for summary judgment and entered
`summary judgment in favor of Intel. The employee now
`appeals, arguing that the district court erred by concluding
`he had the requisite “actual knowledge” required by ERISA
`to trigger the limitations period. We have jurisdiction under
`28 U.S.C. § 1291, and we reverse.
`Christopher Sulyma worked at Intel between 2010 and
`2012 and participated in two of Intel’s retirement plans, both
`governed by ERISA. The first was the Intel Retirement Plan,
`also known as the Intel Retirement Contribution Plan. The
`second was the Intel 401(k) Savings Plan.
`Sulyma’s account performance depended in part on
`investment decisions controlled by Intel, through the
`performance of different Intel “funds.” Sulyma’s Retirement
`Plan account was invested in the Intel Global Diversified
`Fund. Sulyma’s Savings Plan account was invested in the
`Intel Target Date 2045 Fund. The Funds were managed by
`an Intel investment committee responsible for choosing and
`managing the Funds’ asset allocations. The investment
`1 The parties consented to the jurisdiction of a magistrate judge. See
`28 U.S.C. § 636.


`committee members were appointed and supervised by a
`finance committee formed by members of the Intel Board of
`Directors. A third administrative committee was responsible
`for disclosing
`information about
`the Plans
`to plan
`participants. This opinion refers to these various groups as
`“Intel” unless the context otherwise requires.
`When the Funds were established, they did not include
`significant “alternative investments,” such as hedge funds.
`Intel increased the Funds’ alternative investments to reduce
`through greater
`diversification. But the reduction in investment risk came at
`the cost of higher fees and lower performance during periods
`of strong returns in the equity market. When equity markets
`did in fact begin to improve after the Great Recession, the
`Funds’ performances lagged compared to index funds and
`comparable portfolios. Intel disclosed these investment
`decisions to Sulyma through various documents hosted on
`two websites. The documents disclosed both the fact of the
`alternative investments and the basic strategy behind the
`decision to invest in them. For instance, “Fund Fact Sheets”
`created in 2010 disclosed that the 2045 Fund was invested
`more in hedge funds than comparable portfolios, and that it
`was not performing as well as a result. Sulyma accessed
`some of this information on the websites, but he testified that
`he was not actually aware that his retirement accounts were
`invested in alternative investments while working at Intel.
`Sulyma alleges that he eventually learned about the
`Funds’ poor performance; he thereafter filed this action
`against Intel on October 29, 2015, raising six claims. His
`first and third claims alleged that the investment committee
`violated 29 U.S.C. § 1104 by imprudently investing in
`alternative investments. His second and fourth claims
`alleged that the administrative committee violated 29 U.S.C.


` §
` 1104 and 29 C.F.R. § 2250.404a-5(a) by failing to disclose
`adequately information about the alternative investments.
`His fifth claim alleged that the finance committee violated
`29 U.S.C. § 1104 by failing to monitor the investment and
`administrative committees. His sixth claim alleged that all
`defendants were liable for knowing of the other defendants’
`ERISA violations and failing to remedy them.
`Intel moved to dismiss the complaint as time-barred
`under 29 U.S.C. § 1113(2), which provides that an action
`under section 1104 may not be commenced more than “three
`years after the earliest date on which the plaintiff had actual
`knowledge of the breach or violation.” The district court
`converted the motion to dismiss into a motion for summary
`judgment and ordered discovery limited to the statute of
`limitations issue. After discovery, the district court ruled that
`there was no dispute of material fact that Sulyma had actual
`knowledge of the alternative investments more than three
`years before filing this action, and entered summary
`judgment in favor of Intel. Sulyma appeals, arguing that the
`district court applied the wrong standard of “actual
`knowledge” to his imprudent investing and derivative
`liability claims.2
`We review a district court’s summary judgment de novo.
`Curley v. City of North Las Vegas, 772 F.3d 629, 631 (9th
`Cir. 2014). “We must determine, viewing the evidence in the
`light most favorable to the nonmoving party, whether there
`2 The district court also granted summary judgment to Intel on
`Sulyma’s failure-to-disclose claims. Sulyma has not appealed that ruling,
`and therefore we do not address it.


`are any genuine issues of material fact and whether the
`district court correctly applied the substantive law.” Id.
`ERISA imposes “a duty of care with respect to the
`management of existing trust funds, along with liability for
`breach of that duty, upon plan fiduciaries.” Lockheed Corp.
`v. Spink, 517 U.S. 882, 887 (1996). Fiduciaries are required
`to act “solely in the interest of the participants and
`beneficiaries” and must exercise “the care, skill, prudence,
`and diligence . . . that a prudent man acting in a like capacity
`and familiar with such matters would use.” 29 U.S.C.
`§ 1104(a)(1). A claim that an ERISA fiduciary has breached
`this prudent investor rule must be brought within six years
`after “the date of the last action which constituted a part of
`the breach or violation,” or within three years after “the
`earliest date on which the plaintiff had actual knowledge of
`the breach or violation.” Id. § 1113.
`Sulyma initiated this action on October 29, 2015, and
`Intel has not argued that he did so beyond the six-year
`limitations period. The only issue on appeal is, therefore,
`whether Sulyma had “actual knowledge of the breach or
`violation” beyond the three-year limitations period, i.e.,
`before October 29, 2012. Because there has been some
`confusion in our case law over the scope of the “actual
`knowledge” standard, we begin by explaining what it means
`for a plaintiff to have actual knowledge of a breach. We then
`apply that standard to each of Sulyma’s claims.
`We follow a two-step test to determine whether a claim
`is barred by section 1113(2). Ziegler v. Conn. Gen. Life Ins.
`Co, 916 F.2d 548, 550 (9th Cir. 1990). First, we “isolate and


`define the underlying violation upon which [the] plaintiff’s
`claim is founded.” Id. at 551 (alterations omitted) (quoting
`Meagher v. Int’l Ass’n of Machinists & Aerospace Workers
`Pension Plan, 856 F.2d 1418, 1422 (9th Cir. 1988)). Second,
`we “inquire when [the plaintiff] had ‘actual knowledge’ of
`the alleged breach or violation.” Id. at 552 (emphasis
`omitted) (quoting 29 U.S.C. § 1113(2)). “This inquiry into
`[the] plaintiff[’s] actual knowledge is entirely factual,
`requiring examination of the record. Identifying the breach
`may end the analysis in cases where the breach coincides
`with an ERISA plaintiff’s actual knowledge of the breach.”
`ERISA does not define “knowledge” or “actual
`knowledge.” See 29 U.S.C. § 1002. But when Congress first
`enacted ERISA in 1974, section 1113 contained two kinds
`of knowledge
`requirement, actual knowledge and
`constructive knowledge. 29 U.S.C. § 1113(a)(2) (1976). The
`actual knowledge provision was
`to current
`section 1113(2), but the constructive knowledge provision
`provided that an action could not be commenced more than
`three years after the earliest date “on which a report from
`which [the plaintiff] could reasonably be expected to have
`obtained knowledge of such breach or violation was filed
`with the secretary under this title.” Id. § 1113(a)(2)(B)
`(1976). Congress repealed the constructive knowledge
`provision in 1987, leaving only the actual knowledge
`requirement. Omnibus Budget Reconciliation Act of 1987,
`Pub. L. No. 100-203, § 9342(b), 101 Stat. 1330. Since that
`time, the Supreme Court has not provided an authoritative
`construction for section 1113(2). See Tibble v. Edison Int’l,
`135 S. Ct. 1823 (2015). Our own interpretations have
`likewise not always been straightforward, leading to some
`in our district courts over what “actual
`knowledge” entails. See, e.g., In re Northrop Grumman


`Corp. ERISA Litigation, 2015 WL 10433713, at *20 n.140
`(C.D. Cal. Nov. 24, 2015) (“The court acknowledges that it
`is difficult to harmonize Waller [v. Blue Cross of
`California]’s holding with the rule announced in Blanton [v.
`Anzalone]”). Faced with this confusion, we begin our
`analysis by carefully examining our past cases to determine
`the meaning of “actual knowledge” in this circuit.
`We first interpreted section 1113 in Blanton v. Anzalone,
`760 F.2d 989 (9th Cir. 1985), decided before the 1987
`amendment. In that case, the beneficiary of an ERISA plan
`account sued the plan’s trustees. Id. at 991. The beneficiary
`alleged that the trustees breached their fiduciary duties by
`renting a building allegedly owned by the account to a
`corporation, of which the trustees were officers and
`shareholders. Id. The
`trustees counterclaimed for a
`declaration that the account did not have any interest in the
`building, arguing that the transaction that placed the interest
`in the beneficiary’s account was void under 29 U.S.C.
`§ 1106. Id. We held that the trustees’ counterclaim was
`barred by section 1113 because the transaction took place in
`September 1977, more than three years prior to the action’s
`commencement in June 1981. Id. In reaching our holding,
`we reasoned that the trustees “had actual knowledge of the
`transaction at the time it took place because they, as trustees,
`were parties to the transaction, and they . . . actually made
`the decision to undertake the transaction.” Id. We rejected
`the trustees’ argument that they “did not have actual
`knowledge of the violation until their attorney advised them
`that the transaction was prohibited” because section 1113 “is
`triggered by the [trustees’] knowledge of the transaction that
`constituted the alleged violation, not by their knowledge of
`the law.” Id. at 991–92.


`We relied on Blanton in Meagher, 856 F.2d at 1423. In
`that case, the plaintiff was the beneficiary of an International
`Association of Machinists pension. Id. at 1419–20. The
`Association voted to amend the pension plan, reducing the
`plaintiff’s benefits. Id. at 1420. The plaintiff retired in 1977
`and began receiving checks with the reduced amount. Id. at
`1419. In 1986, he filed an ERISA action under 29 U.S.C.
`§ 1054. Id. at 1419, 1421. We held that the amendment was
`ineffective, and that every application of the amendment in
`the form of a reduced check constituted a violation of
`ERISA. Id. at 1423. We then quoted Blanton’s rule that the
`“statute of limitations is triggered by [a claimant’s]
`knowledge of the transaction that constituted the alleged
`violation, not by [his] knowledge of the law,” and concluded
`that every time the plaintiff received a reduced check “he had
`knowledge of the transaction, though he may not have
`known at the time that the reduction in benefits was unlawful
`under ERISA.” Id. (alterations in original). Applying that
`reasoning, we held that the plaintiff had timely brought
`claims only for checks issued within the three years before
`he filed the action. Id.
`Meagher applied the pre-1987 version of section 1113.
`Our first case interpreting the amended section was Ziegler,
`916 F.2d 548. In that case, pension plan administrators
`contracted with an insurance company to invest the
`pension’s funds. Id. at 549. The contract provided that, upon
`termination of the agreement, the insurance company would
`transfer the funds according to one of two options, a “book
`value” over five years, or a “market value” in a lump sum
`that adjusted the amount based on the insurance company’s
`“market value formula.” Id. The administrators opted for the
`lump sum, but then sued the insurance company under
`sections 1104 and 1106 for retaining the “market value”
`adjustment. Id. at 550. We held that the administrators’


`action was time-barred, reasoning that they had actual
`knowledge of the ERISA violation when the insurance
`company informed them that selection of the “market value”
`option would result in the insurance company’s retaining a
`substantial portion of pension funds. Id. at 552. This holding
`was consistent with Blanton and Meagher, although Ziegler
`did not cite those cases in its analysis of actual knowledge.
`See id.
`We next interpreted section 1113 in Phillips v. Alaska
`Hotel & Restaurant Employees Pension Fund, 944 F.2d 509
`(9th Cir. 1991). In that case, pension plan contributors sued
`the pension fund administrators under section 1104 for
`maintaining restrictive vesting requirements that excluded
`many contributors from obtaining benefits. Id. at 512. The
`plaintiffs had actual knowledge of the restrictive vesting
`requirements more than three years before they filed the
`action, but the district court nonetheless held that section
`1113 was not a bar because the failure to relax the vesting
`requirement was a “continuing breach.” Id. at 520. We
`reversed, holding that actual knowledge is “measured from
`the ‘earliest date’ on which [the plaintiff] knew of the
`breach.” Id. We reasoned that, although a “continuous series
`of breaches may allow a plaintiff to argue that a new cause
`of action accrues with each new breach . . . [,] if the breaches
`are of the same kind and nature and the plaintiff had actual
`knowledge of one of them more than three years before
`commencing suit, [section 1113] bars the action.” Id. at 521.
`A different rule, we explained, “essentially reads the ‘actual
`knowledge’ standard out of the statute.” Id. at 520.
`The foregoing cases establish that knowledge of
`illegality under ERISA is not required to trigger section
`1113’s three-year limitations period. Instead, knowledge of
`the allegedly illegal action or transaction can be sufficient.


`However, none of these cases squarely held that knowledge
`of the transaction alone was sufficient “actual knowledge”
`under the statute. Rather, in each case the plaintiffs were
`parties to the transaction, Blanton, 760 F.2d at 991, or were
`specifically informed by the plan administrator of the action,
`see Ziegler, 916 F.2d at 552; Meagher, 856 F.2d at 1421, or
`actual knowledge of the breach was not at issue, Phillips,
`944 F.2d at 520–21.
`We first addressed whether knowledge of the underlying
`transaction was necessarily sufficient to trigger the three-
`year limitations period in Waller v. Blue Cross of California,
`32 F.3d 1337 (9th Cir. 1994). In that case, retirement plan
`participants sued plan administrators under section 1104 for
`terminating the plan, using plan assets to purchase annuities
`on behalf of the participants, and retaining the remaining
`assets. Id. at 1338. The administrators moved to dismiss the
`complaint as time-barred, arguing that the three-year
`limitations period began to run as soon as the plaintiffs
`learned about the purchase of annuities. Id. at 1340–41. We
`rejected that argument, reasoning that “[w]e decline to
`equate knowledge of the purchase of annuities in this case
`with actual knowledge of the alleged breach of fiduciary
`duty,” and we favorably quoted the D.C. Circuit rule that
`“[t]he disclosure of a transaction that is not inherently a
`statutory breach of fiduciary duty cannot communicate the
`existence of an underlying breach.” Id. at 1341 (alteration
`omitted) (quoting Fink v. Nat’l Sav. & Trust Co., 772 F.2d
`951, 957 (D.C. Cir. 1985)). Although in some tension with
`our previous cases, Waller’s holding did not conflict with the
`holdings in those cases because Waller considered only
`whether knowledge of the underlying transaction alone
`triggers section 1113(2). As previously explained, our earlier
`cases, while perhaps suggesting that rule, never squarely
`adopted it. Waller was thus the first case to consider whether


`“actual knowledge of the breach” means only knowledge of
`the underlying transaction, and it established that actual
`knowledge must mean something more, at least in cases in
`which the underlying transaction does not disclose the nature
`of the breach.
`The lesson we draw from these cases is thus two-fold.
`First, “actual knowledge of the breach” does not mean that a
`plaintiff has knowledge that the underlying action violated
`ERISA. Blanton, 760 F.2d at 992. Second, “actual
`knowledge of the breach” does not merely mean that a
`plaintiff has knowledge that the underlying action occurred.
`Waller, 32 F.3d at 1341. “Actual knowledge” must therefore
`mean something between bare knowledge of the underlying
`transaction, which would trigger the limitations period
`before a plaintiff was aware he or she had reason to sue, and
`actual legal knowledge, which only a lawyer would normally
`This leads us to the question of what this extra
`“something” must entail. In light of the statutory text and our
`case law, we conclude that the defendant must show that the
`plaintiff was actually aware of the nature of the alleged
`breach more than three years before the plaintiff’s action is
`filed. The exact knowledge required will thus vary
`depending on the plaintiff’s claim. For instance, in a
`section 1104 case, the plaintiff must be aware that the
`defendant has acted and that those acts were imprudent. See,
`e.g., Waller, 32 F.3d at 1341. But in, for example, a
`section 1106 case, the plaintiff need only be aware that the
`defendant has engaged in a prohibited transaction, because
`knowledge of the transaction is all that is necessary to know
`that a prohibited transaction has occurred. See, e.g., Blanton,
`760 F.2d at 991–92. This interpretation is consistent with our
`statement in Ziegler that “[i]dentifying the breach may end


`the analysis in cases where the breach coincides with an
`ERISA plaintiff’s actual knowledge of the breach,” 916 F.2d
`at 552, reconciles what could appear to be conflicting rules
`in Blanton and Waller, and
`flows naturally
`section 1113(2)’s text: “three years after the earliest date on
`which the plaintiff had actual knowledge of the breach or
`violation.” (Emphasis added.) The key is that, whatever the
`underlying ERISA claim, the limitations period begins to run
`once the plaintiff has sufficient knowledge to be alerted to
`the particular claim.
`In reaching this holding, we emphasize that for a plaintiff
`to have sufficient knowledge to be alerted to his or her claim,
`the plaintiff must have actual knowledge, rather than
`constructive knowledge. As we explained in the Digital
`Millennium Copyright Act context, “[t]he statutory phrase
`‘actual knowledge’ means what it says: knowledge that is
`actual, not merely a possible inference from ambiguous
`circumstances.” Ventura Content, Ltd. v. Motherless, Inc.,
`885 F.3d 597, 609 (9th Cir. 2018), cert. denied, 2018 WL
`4031239 (U.S. Oct. 29, 2018) (No. 18-235). The text of
`section 1113 uses this statutory phrase, and Congress
`removed the constructive knowledge provision from the
`statute in 1987. This amendment strongly suggests that
`Congress intended for only an actual knowledge standard to
`apply. Thus, as in Ventura, we hold that the phrase “actual
`knowledge” means the plaintiff is actually aware of the facts
`constituting the breach, not merely that those facts were
`available to the plaintiff. To prevail on a statute of
`limitations defense on a section 1104 claim, as here,
`therefore, the defendant must show that there is no dispute
`of material fact that the plaintiff was actually aware that the
`defendant acted imprudently.


`this understanding of actual
`We recognize
`knowledge conflicts with the Sixth Circuit’s reasoning in
`Brown v. Owens Corning Investment Review Committee,
`622 F.3d 564, 571 (6th Cir. 2010). In that case, the Sixth
`Circuit held that, “[w]hen a plan participant is given specific
`instructions on how to access plan documents, their failure
`to read the documents will not shield them from having
`actual knowledge of the documents’ terms.” Id. We
`respectfully disagree with that analysis. As we have
`previously recognized, “plan participants who have been
`provided with [summary plan descriptions] are charged with
`constructive knowledge of the contents of the document,”
`not actual knowledge. See Scharff v. Raytheon Co. Short
`Term Disability Plan, 581 F.3d 899, 908 (9th Cir. 2009)
`(emphasis added). We would therefore characterize the
`plaintiff described
`in Brown as having constructive
`knowledge only. Under our interpretation of ERISA, such
`knowledge is insufficient.
`We also recognize Intel’s argument that there are “strong
`policy reasons” to conclude that “actual knowledge” has a
`broader meaning, including knowledge that a plaintiff can
`glean from corporate disclosures. However, we are not
`persuaded that Intel’s proffered policy reasons have force in
`this context. To begin with, Sulyma might just as easily
`argue that there are “strong policy reasons” to interpret
`actual knowledge narrowly, such as to promote fiduciary
`accountability. Which way the policy rationale cuts depends
`on the person making the argument. Second, and more
`fundamentally, weighing the policy merits of different
`knowledge standards was for Congress to undertake when it
`enacted, and then amended, section 1113, not for this court.
`Our task is not to make policy decisions, but to interpret the
`statute as enacted. Although policy reasoning may be
`relevant to our interpretation of the statute when grounded in


`ERISA’s text or other congressional intent, Intel has not
`provided us with any such reasoning. We therefore hold that
`section 1113 means what it says: to trigger the three-year
`limitations period, a plaintiff must have “actual knowledge
`of the breach or violation.”
`Applying this standard de novo to Sulyma’s appealed
`claims, we conclude that the district court erred by entering
`summary judgment in favor of Intel.
`Sulyma’s first claim alleged
`committee violated section 1104 by “adopting an asset
`allocation model such that the Intel [Target Date Fund
`portfolios] were and are comprised of approximately 20–
`25% Hedge Funds, 4–5% commodities, and where
`international equities account for over 50% of equity
`holdings.” Sulyma alleged that this selection was unduly
`risky and that Intel acted imprudently by disregarding those
`risks or by insufficiently considering them before acting.
`Sulyma’s third claim similarly alleged that the investment
`committee violated section 1104 by “increas[ing] the
`Diversified Fund’s allocations to hedge funds and private
`equity and add[ing] allocations to commodities, resulting in
`22.23% of fund assets, approximately $1.2 billion, allocated
`to these alternative investments.” Sulyma alleged that, “[b]y
`the end of 2013, the Investment Committee had caused the
`Diversified Fund to allocate 36.71%, $2.33 billion, to such
`alternative investments.” As with his first claim, Sulyma
`alleged that this selection was unduly risky and that the
`investment committee acted imprudently by disregarding or
`insufficiently considering those risks.


`Intel argues that Sulyma had actual knowledge of this
`alleged breach because it disclosed information about plan
`asset allocation and the investment strategy behind that
`allocation before October 29, 2012. Intel points to Fund Fact
`Sheets in 2010, 2011, and 2012, a 2011 Qualified Default
`Investment Alternative Notice, a 2012 Summary Plan
`Description, 2012 Annual Disclosures, and several
`disclosures on Intel’s website
`that explained Intel’s
`strategy behind
`investments, and possible risks. Intel argues that, by
`disclosing the mix of investments that Sulyma claims was
`imprudent, along with the costs and benefits of such an
`approach, Sulyma had “actual knowledge of the breach.”
`We agree that Intel’s evidence demonstrates that Sulyma
`had sufficient information available to him to know about
`the allegedly imprudent investments before October 29,
`2012. However, that is insufficient. Because Sulyma brought
`a claim under section 1104, he was required to have actual
`knowledge both that those investments occurred, and that
`they were imprudent. But Sulyma declared that he was
`“unaware that the monies that [he] had invested through the
`Intel retirement plans had been invested in hedge funds or
`private equity” and that he did “not recall seeing any
`documents during [his] employment at Intel that alerted
`[him] to the fact that [his] retirement monies were
`significantly invested in hedge funds or private equity.”
`Sulyma also testified that he was unaware of documents
`making these disclosures when specifically deposed on this
`point. These statements created a dispute of material fact that
`precluded summary judgment on these claims. On this
`record, only a fact-finder could have determined that Sulyma
`had the requisite “actual knowledge of the breach” for
`section 1113(2) to bar the action.


`Sulyma also appeals from the district court’s summary
`judgment on his derivative liability claims. Sulyma’s fifth
`claim alleged
`finance committee violated
`section 1104 by failing to monitor the performance of the
`investment committees responsible for making the allegedly
`imprudent investment allocations. Sulyma’s sixth claim
`alleged that all defendants violated section 1105 by knowing
`of the other defendants’ breaches and taking no steps to
`remedy them.
`Sulyma argues that the limitations period for his
`derivative claims could not begin to run until the end-point
`of the limitations period on his primary claims. That is
`incorrect. As we have previously explained, when an ERISA
`breach is ongoing such that it may be characterized as
`multiple violations, “[t]he earliest date on which a plaintiff
`became aware of any breach . . . start[s] the limitation period
`of [section 1113] running.” Phillips, 944 F.2d at 520. Rather,
`as with Sulyma’s first and third claims, summary judgment
`was inappropriate because there was a dispute of material
`fact over whether Sulyma had “actual knowledge of the
`breach” by 2012. If Sulyma in fact never looked at the
`documents Intel provided, he cannot have had “actual
`knowledge of the breach” because he cannot have been
`aware that imprudent investments were made and that other
`Intel fiduciaries were failing to monitor or remedy that
`imprudence. Because there was a dispute of material fact
`over Sulyma’s actual knowledge, the district court erred by
`entering summary judgment in favor of Intel on these claims.
`We therefore reverse the district court’s summary judgment
`and remand for further proceedings consistent with this

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