Harris

Concurrence to Order by Judge W. FLETCHER; Dissent to Order by Judge KOZINSKI; Opinion by Judge W. FLETCHER.

ORDER

The opinion filed on October 30, 2014, and published at 770 F.3d 865 , is hereby amended and replaced by the amended opinion filed concurrently with this order. With these amendments, Judge W. Fletcher has voted to deny the petition for rehearing en banc and Judges Farris and Korman so recommend.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc reconsideration. Fed. R.App. P. 35.

The petition for rehearing en banc is DENIED. No further petitions for rehearing or rehearing en banc will be entertained.

Judge W. Fletcher’s concurrence in the denial of rehearing en banc and Judge Kozinski’s dissent from the denial of rehearing en banc are filed concurrently with this order.

with whom Judges O’SCANNLAIN, CALLAHAN and BEA join, dissenting from the denial of rehearing en banc:

The Supreme Court has previously admonished us for ignoring a grant, vacate and remand (GVR) order and “reinstating [our] judgment without seriously confronting the significance of the cases called to [our] attention.” Cavazos v. Smith, — U.S. -, 132 S.Ct. 2, 7 , 181 L.Ed.2d 311 *923 (2011). We’re at it again. In Fifth Third Bancorp v. Dudenhoeffer, — U.S. —, 134 S.Ct. 2459 , 189 L.Ed.2d 457 (2014), the Supreme Court created stringent new requirements for plaintiffs who sue fiduciaries under ERISA for imprudent investment in an employer’s stock. Here, in response to a GVR, the panel not only fails to give effect to those requirements, but also insulates our circuit law from important aspects of the Supreme Court’s holding.

The panel’s decision creates almost unbounded liability for ERISA fiduciaries, plainly at odds with what the Court instructed. Worse still, the panel’s rule will have grave consequences for corporations across America, leaving them acutely vulnerable to meritless lawsuits and subjecting them to novel, judicially-fashioned disclosure requirements that conflict…

concurring in the denial of rehearing en banc:

The panel’s opinion speaks for itself, and I will not repeat our analysis, much of *920 which is directly responsive to concerns expressed by the Supreme Court in Fifth Third Bancorp v. Dudenhoeffer, — U.S. -, 134 S.Ct. 2459 , 189 L.Ed.2d 457 (2014).

I write only to correct three ways in which the dissent misrepresents what is in our opinion.

1. Impact of Withdrawal

The dissent characterizes our opinion as holding that withdrawing a fund as an investment option is appropriate because, “as a general matter, ‘when the previously concealed material information about [a] company is eventually revealed.... the stock price will inevitably decline, almost certainly by more than the amount it would have declined as a result of merely withdrawing the [f|und as an investment option.’ ” Dissent at 926 (emphasis in original) (quoting Opinion at 938). Based on that characterization, the dissent claims that we ignore the Court’s instruction in Fifth Third to consider whether there will be a net harm to plan participants resulting from withdrawal of a fund. The dissent contends that our reasoning is circular ■ because, under the reasoning it…