NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 2 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MATTHEW WEHNER, No. 24-2630 D.C. No. Plaintiff - Appellant, 3:20-cv-06894-RS v. MEMORANDUM*

GENENTECH, INC.; UNITED STATES

ROCHE DC FIDUCIARY COMMITTEE,

Defendants - Appellees.

Appeal from the United States District Court for the Northern District of California Richard Seeborg, Chief District Judge, Presiding

Argued and Submitted August 26, 2025 San Francisco, California

Before: HURWITZ, KOH, and JOHNSTONE, Circuit Judges.

Matthew Wehner appeals the district court’s dismissal of his claims under

the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C.

§ 1001, et seq. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. The district court correctly dismissed Wehner’s claim that defendants, the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. fiduciaries for Genentech’s retirement plan, violated their duty of prudence under

ERISA by retaining certain investments (“the Roche TDFs”) in Genentech’s

retirement portfolio.

ERISA requires plan trustees to act with the “care, skill, prudence, and

diligence under the circumstances then prevailing that a prudent man acting in a

like capacity and familiar with such matters would use in the conduct of an

enterprise of a like character and with like aims.” 29 U.S.C. § 1104(a)(1)(B).

“ERISA requires prudence, not prescience.” Anderson v. Intel Corp. Inv. Pol’y

Comm., 137 F.4th 1015, 1021 (9th Cir. 2025) (citation modified). “Because we

evaluate prudence prospectively, based on the methods the fiduciaries employed,

rather than retrospectively, based on the results they achieved, it is not enough for

a plaintiff simply to allege that the fiduciaries could have obtained better

results . . . by choosing different investments.” Id. at 1021. Rather, “a plaintiff must

provide ‘some further factual enhancement’ to take the claim across ‘the line

between possibility and plausibility.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 557 (2007)).

Wehner’s operative complaint lacked sufficient factual content to plausibly

take his claim that defendants violated their duty of prudence under ERISA across

the line. As we recently explained, when an ERISA plaintiff attempts to plead

imprudence “by relying on a theory that a prudent fiduciary in like circumstances

2 would have selected a different fund based on the cost or performance of the

selected fund, that plaintiff must provide a sound basis for comparison.” Id. at

1022. With regard to Wehner’s proposed comparators, the operative complaint

lacks the factual content that Anderson requires to give rise to a plausible inference

of breach of the duty of prudence. See id. (explaining that merely “labeling funds

as ‘comparable’ or ‘a peer’ is insufficient to establish that those funds are

meaningful benchmarks against which to compare the performance of the [Roche

TDFs]”). Likewise, Wehner’s allegations regarding defendants’ investment

manager fail to “nudge[]” his duty of prudence claim “across the line from

conceivable to plausible.” Twombly, 550 U.S. at 570; see also Hughes v. Nw.

Univ., 595 U.S. 170, 177 (2022) (explaining that “the circumstances facing an

ERISA fiduciary will implicate difficult tradeoffs, and courts must give due regard

to the range of reasonable judgments a fiduciary may make based on her

experience and expertise”).

2. We also affirm the district court’s dismissal of Wehner’s claim that

defendants failed to monitor co-fiduciaries under 29 U.S.C. § 1105(a) because that

claim is derivative of Wehner’s duty of prudence claim.1

AFFIRMED.

1 Because Wehner does not assert on appeal that he should have been granted leave to amend the operative complaint, we do not address the issue.

3