PER CURIAM.
The Court considers for the second time the Ninth Circuit's determination that respondent stockholders' complaint states a claim against petitioner fiduciaries for breach of the duty of prudence. The first time, the Court vacated and remanded in light of Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. ----, 134 S.Ct. 2459, 189 L.Ed.2d 457 (2014), a case which set forth the standards for stating a claim for breach of the duty of prudence against fiduciaries who manage employee stock ownership plans (ESOPs). On remand, the Ninth Circuit reiterated its conclusion that the complaint states such a claim. The Court now reverses and remands.
The stockholders are former employees of Amgen Inc. and its subsidiary Amgen Manufacturing, Limited, who participated in plans that qualified under 29 U.S.C. § 1107(d)(3)(A) as eligible individual account plans. Like ESOPs, these plans offer ownership in employer stock as an option to employees. The parties agree that the decision in Fifth Third is fully applicable to the plans at issue here. See 788 F.3d 916, 935 (C.A.9 2014).
All of the plans had holdings in the Amgen Common Stock Fund (composed, unsurprisingly, of Amgen common stock) during the relevant period. The value of Amgen stock fell, and in 2007, the stockholders filed a class action against petitioner fiduciaries alleging that they had breached their fiduciary duties, including the duty of prudence, under the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U.S.C. § 1001 et seq. The District Court granted the fiduciaries' motion to dismiss, and the Ninth Circuit reversed, Harris v. Amgen, Inc., 738 F.3d 1026 (2013). The fiduciaries sought certiorari.
While that petition was pending, this Court issued a decision that concerned the duty of prudence owed by ERISA fiduciaries who administer ESOPs. That decision, Fifth Third , held that such ERISA fiduciaries are not entitled to a presumption of prudence but are "subject to the same duty of prudence that applies to ERISA fiduciaries in general, except that they need not diversify the fund's assets." 573 U.S., at ----, 134 S.Ct., at 2463.
Notwithstanding the lack of a presumption of prudence, Fifth Third noted that "Congress sought to encourage the creation of" employee stock-ownership plans, id., at ----, 134 S.Ct., at 2470, a purpose that the decision recognized may come into tension with ERISA's general duty of prudence. Moreover, ESOP fiduciaries confront unique challenges given "the potential for conflict" that arises when fiduciaries are alleged to have imprudently "fail [ed] to act on inside information they had about the value of the employer's stock." Id., at ----, 134 S.Ct., at 2469. Fifth Third therefore laid out standards to help "divide the plausible sheep from the meritless goats," id., at ----, 134 S.Ct., at 2470 :
"To state a claim for breach of the duty of prudence on the basis of inside information, a plaintiff must plausibly allege an alternative action that the defendant could have taken that would have been consistent with the securities laws and that a prudent fiduciary in the same circumstances would not have viewed as more likely to harm the fund than to help it." Id., at ----, 134 S.Ct., at 2472.
It further clarified that courts should determine whether the complaint itself states a claim satisfying that liability standard:
"[L]ower courts faced with such claims should also consider whether the complaint has plausibly alleged that a prudent fiduciary in the defendant's position could not have concluded that stopping purchases-which the market might take as a sign that insider fiduciaries viewed the employer's stock as a bad investment-or publicly disclosing negative information would do more harm than good to the fund by causing a drop in the stock price and a concomitant drop in the value of the stock already held by the fund." Id., at ----, 134 S.Ct., at 2473 (emphasis added).
In the matter that is once again before the Court here, following the issuance of Fifth Third , the Court granted the fiduciaries' first petition for a writ of certiorari, vacated the judgment, and remanded for further proceedings consistent with that decision. Amgen Inc. v. Harris, 576 U.S. ----, 134 S.Ct. 2870, --- L.Ed.2d ---- (2014). On remand, the Ninth Circuit reversed again the dismissal of the complaint and denied the fiduciaries' petition for rehearing en banc. See 788 F.3d 916. The fiduciaries once more sought certiorari.
The Court now holds that the Ninth Circuit failed to properly evaluate the complaint. That court explained that its previous opinion (that is, the one it issued before Fifth Third was decided) "had already assumed" the standards for ERISA fiduciary liability laid out by this Court in Fifth Third . 788 F.3d, at 940. And it reasoned that the complaint at issue here satisfies those standards because when "the federal securities laws require disclosure of material information," it is "quite plausible" that removing the Amgen Common Stock Fund "from the list of investment options" would not "caus[e] undue harm to plan participants." Id., at 937-938. The Ninth Circuit, however, failed to assess whether the complaint in its current form "has plausibly alleged" that a prudent fiduciary in the same position "could not have concluded" that the alternative action "would do more harm than good." Fifth Third, supra, at ----, 134 S.Ct., at 2463.
The Ninth Circuit's proposition that removing the Amgen Common Stock Fund from the list of investment options was an alternative action that could plausibly have satisfied Fifth Third 's standards may be true. If so, the facts and allegations supporting that proposition should appear in the stockholders' complaint. Having examined the complaint, the Court has not found sufficient facts and allegations to state a claim for breach of the duty of prudence.
Although the Ninth Circuit did not correctly apply Fifth Third , the stockholders are the masters of their complaint. The Court leaves to the District Court in the first instance whether the stockholders may amend it in order to adequately plead a claim for breach of the duty of prudence guided by the standards provided in Fifth Third .
The petition for certiorari is granted. The judgment of the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations