Jacobson

Opinion by Judge PREGERSON; Dissent by Judge NORRIS.

Plaintiffs appeal the district court’s dismissal of their action brought under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001 et. seq. Plaintiffs are retired Hughes Aircraft Company employees who are participants in the Hughes Non-Bargaining Retirement Plan (the “Contributory Plan”). Plaintiffs allege in their complaint that the employer, defendant Hughes Aircraft Company (“Hughes”), breached its statutory and fiduciary duties under ERISA when it used the Contributory Plan’s surplus assets-attributable in part to employee eontributions-to fund an early retirement program for existing employees and a new non-contributory pension plan for *1291 some employees that were not participants of the Contributory Plan. Plaintiffs seek a variety of remedies, including a distribution of “all or a portion of the excess Plan assets” in the form of increased benefits. The district court dismissed plaintiffs’ complaint under Fed.R.Civ.P. 12(b)(6), without leave to amend. The simple question before us is whether plaintiffs have alleged sufficient facts in their complaint to state any claim for relief under…

dissenting:

Plaintiffs-appellants are five retired Hughes Aircraft Company employees who are receiving retirement benefits under the Hughes Non-Bargaining Retirement Plan (the “Plan” or “Hughes Plan”). 1 The five plaintiffs are among the 10,000-plus Hughes employees and retirees participating in the Plan. The principal relief plaintiffs seek is a termination of the Hughes Plan and a distribution of its assets to participants, such as the plaintiffs, who have made contributions to the Plan.

Plaintiffs allege that, largely as a result of “investment growth,” Plan assets grew to the point that they exceeded the aetuarially projected value of Plan liabilities by approximately $1 billion. In the event that plaintiffs succeed in their quest for a judgment terminating the Plan, ERISA provides for an equitable distribution of the Plan assets to those participants who have contributed to the Plan. Thus, if the Plan is terminated, plaintiffs will receive not only the defined pension benefits which they are currently receiving, but also a share of the $1 billion surplus. That is the pot of gold at the end of the rainbow that drives this litigation.

I

First Claim: Anti-Inurement

In their…