No. 20-1286

IN RE: FIDELITY ERISA FEE LITIGATION

ANDRE W. WONG, on behalf of the T-Mobile USA, Inc. 401(k) Retirement Savings Plan and Trust and on behalf of all other similarly situated Employee Benefit Plans; JANICE ANDERSEN; JASON BAILIS; NATALIE DONALDSON; CYNTHIA EDDY; MYRL JEFFCOAT; THOMAS GOODRICH; KAYLA JONES; KAREN PETTUS; GINA SUMMERS; HEATHER WOODHOUSE; REGINA CRYSTAL ROBINSON, on behalf of the T-Mobile USA, Inc. 401(k) Retirement Savings Plan and Trust and on behalf of all other similarly situated Employee Benefit Plans; TYLER WAYNE SILLS, on behalf of the T-Mobile USA, Inc. 401(k) Retirement Savings Plan and Trust and on behalf of all other similarly situated Employee Benefit Plans; CATEENIA D. JOHNSON, on behalf of the T-Mobile USA, Inc. 401(k) Retirement Savings Plan and Trust and on behalf of all other similarly situated Employee Benefit Plans,

Plaintiffs, Appellants,

BOARD OF TRUSTEES OF UFCW LOCAL 23 & GIANT EAGLE PENSION FUND,

Plaintiff,

v.

FMR LLC; FIDELITY MANAGEMENT & RESEARCH COMPANY; FIDELITY MANAGEMENT TRUST COMPANY; FIDELITY BROKERAGE SERVICES LLC; NATIONAL FINANCIAL SERVICES LLC; FIDELITY INVESTMENTS INSTITUTIONAL OPERATIONS COMPANY, INC.,

Defendants, Appellees,

JOHN AND JANE DOES 1–10,

Defendants. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Leo T. Sorokin, U.S. District Judge]

Before

Kayatta and Barron, Circuit Judges, and Smith, District Judge.

Alec J. Berin, with whom James E. Miller, Laurie Rubinow, Shepherd, Finkelman, Miller & Shah, LLP, David Pastor, and Pastor Law Office were on brief, for appellants. Bradley N. Garcia, with whom Jonathan D. Hacker, Brian D. Boyle, and O'Melveny & Myers LLP were on brief, for appellees.

March 5, 2021

 Of the District of Rhode Island, sitting by designation. KAYATTA, Circuit Judge. The plaintiffs in this putative class action are participants in 401(k) retirement plans sponsored by their respective employers. They train our attention on fees that the defendant, Fidelity,1 charges some mutual funds for the privilege of being placed on the menu of investment options Fidelity makes available to 401(k) plans that contract with it to receive an array of services and investment opportunities. Seeking equitable and remedial relief on behalf of themselves and the retirement plans in which they participate, plaintiffs contend that Fidelity's exaction and retention of those fees violate fiduciary duties it owes to its customer plans and their participants under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq. In granting a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the district court disagreed. For the following reasons, so do we.

I.

We resolve first a procedural dispute concerning the scope of the record appropriate for our consideration in reviewing the dismissal of a complaint under Federal Rule of Civil Procedure 12(b)(6). When a complaint expressly cites and relies upon a written contract in support of a claim, the drafter of the

1 Plaintiffs have sued FMR LLC and several related Fidelity entities and affiliates, known and unknown. For ease of reference, we refer to all of the defendants collectively as "Fidelity" or "defendant."

- 3 - complaint cannot prevent the court from considering the written contract in ruling on a motion under Rule 12(b)(6). See Beddall