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On September 1, 2026, the United States District Court for the District of Colorado, in Dolly Dow et al. v. Lumen Technologies, Inc., et al., dismissed plaintiffs’ claim that fiduciaries of the Lumen defined benefit plan violated ERISA in transferring plan liabilities to Athene for lack of Article III standing. In this article, we provide a brief note on the case.
The case is typical of other Athene-related PRT litigation. The court provides little discussion of the reasons plaintiffs' lawyers have targeted Athene PRT transactions – for details on how Athene’s business model and capital/regulatory structure differ from other annuity carriers, see our article New York federal district court denies defendants’ motion to dismiss in Athene-related pension risk transfer suit.
Plaintiffs are claiming that Lumen’s transfer of the liabilities of its terminating DB plan to Athene violates ERISA’s fiduciary standards (generally, of prudence and loyalty) because their benefit paid by Athene is somehow compromised, worth less, or less likely to be paid than their benefit under the plan was. These claims are made notwithstanding the fact that (as the court found in this case) “Athene has neither defaulted nor missed any benefit payments owing to Plaintiffs since it assumed payment obligations under the PRT.”
As the Colorado district court found, Article III standing generally requires that plaintiff have “suffered an injury in fact that is concrete, particularized, and actual or imminent.”
In the context of a DB plan, in Thole v. U.S. Bank, the Supreme Court held that “There is no ERISA exception to Article III.” Thus, even where a fiduciary has literally violated a provision of, e.g., ERISA’s fiduciary rules, if plaintiff cannot show that she has suffered a concrete injury, she cannot sue in federal court.
In Thole (which involved a suit challenging certain investment decisions made by fiduciaries of a U.S. Bank DB plan), the Supreme Court found that the plaintiffs “have been paid all of their monthly pension benefits so far, and they are legally and contractually entitled to receive those same monthly payments for the rest of their lives.” As a result, the Court ruled, broadly, that plaintiffs, as DB plan participants, “have no concrete stake in this lawsuit” and “possess no equitable or property interest in the plan.” Unlike beneficiaries under a traditional trust or a defined contribution plan, “a defined-benefit plan is more in the nature of a contract.” And, since the participants were still being paid their benefits, the contract had, in effect, not been breached.
Thole did, however, leave open the possibility that “a substantially increased risk of default and non-payment of benefits might present the kind of concrete injury” that would justify Article III standing.
Plaintiffs in this case argue four different bases for Article III injury-in-fact standing:
(1) [T]he PRT reduced the value of their pensions by removing them from the Plan and ERISA’s protective regime and subjecting them to a riskier guarantor in Athene; (2) there is a substantial risk that Athene will default and cause harm to Plaintiffs in the future; (3) they need not suffer an economic harm to be entitled to the disgorgement of Lumen’s profits and declaratory and injunctive relief; and (4) they have statutory standing under [ERISA Section 502(a)(9)] even if they are unable to satisfy the requirements for standing under Article III. I will address each of these arguments in turn.
(Generally, ERISA Section 502(a)(9) specifically authorizes (among other things) participant lawsuits alleging a fiduciary violation with respect to a pension risk transfer.)
After noting that different courts have come to different conclusions on these issues (some dismissing plaintiffs’ claims, some allowing them to proceed), the court dismissed plaintiffs’ claims in this case, reasoning as follows:
Reduced the value: Citing Thole’s holding that “[P]lan participants possess no equitable or property interest in the plan,” the court held that “any alleged decrease in the value of Plaintiffs’ pension benefits … is not a sufficient injury in fact to support Article III standing.”
Substantial risk of default: The court rejected plaintiffs’ claim that the PRT substantially increased the risk of a default, finding that plaintiffs’ arguments in this regard all turned on the comparison of Athene’s capital/regulatory structure with that of other annuity providers, rather than on the possibility of imminent default. In this regard, it noted (per the above) that Athene had not (for four years) missed any benefit payments.
Equity disgorgement claim: Plaintiffs claimed that (analogizing to trust law) they had a right to “disgorgement” of Lumen’s financial gain from the lower cost Athene PRT transaction. The court rejected this claim based on Thole’s holding that participants had no property interest in DB trust assets.
Statutory claim under ERISA Section 502(a)(9): The court rejected this claim based on Thole’s holding that “[t]here is no ERISA exception to Article III.”
As noted, other courts have come to different conclusions on these issues, although, generally, defendants have won more than they have lost. For a survey of those other decisions, see our articles New York federal district court denies defendants’ motion to dismiss in Athene-related pension risk transfer suit (discussing Doherty v. Bristol Myers Squibb) and Risk transfer litigation: more conflicting court decisions.
We also note that Doherty v. Bristol Myers Squibb is currently on appeal to the Second Circuit, and the Department of Labor has filed an amicus brief siding with the defendants in that case.
We will continue to follow this issue.
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