UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ RAYMOND HAWKINS and ROBIN LUNG, individually │ and on behalf of all others similarly situated, │ Plaintiffs-Appellees, > No. 21-3156 │ │ v. │ │ CINTAS CORPORATION; INVESTMENT POLICY │ COMMITTEE; SCOTT D. FARMER, BOARD OF DIRECTORS │ OF CINTAS CORPORATION, │ Defendants-Appellants. │ ┘

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 1:19-cv-01062—Timothy S. Black, District Judge.

Argued: December 9, 2021

Decided and Filed: April 27, 2022

Before: BOGGS, GIBBONS, and NALBANDIAN, Circuit Judges. _________________

COUNSEL ARGUED: Robert N. Hochman, SIDLEY AUSTIN LLP, Chicago, Illinois, for Appellants. Mark K. Gyandoh, CAPOZZI ADLER, P.C., Harrisburg, Pennsylvania, for Appellees. ON BRIEF: Robert N. Hochman, Mark B. Blocker, Chris K. Meyer, Caroline A. Wong, M. Caroline Wood, SIDLEY AUSTIN LLP, Chicago, Illinois, for Appellants. Mark K. Gyandoh, Donald R. Reavey, Gabrielle Kelerchian, CAPOZZI ADLER, P.C., Harrisburg, Pennsylvania, for Appellees. No. 21-3156 Hawkins, et al. v. Cintas Corp., et al. Page 2

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OPINION _________________

BOGGS, Circuit Judge. In deciding whether a case belongs in arbitration, a court typically asks whether the party bringing the claim has agreed to arbitrate. But sometimes it is difficult to discern exactly who is bringing what claim. Here, individual would-be plaintiffs agreed to arbitrate certain claims, but the claim they seek to adjudicate is brought through an unusual procedure on behalf of an abstract entity.

Plaintiffs-Appellees Raymond Hawkins and Robin Lung alleged that their former employer, Appellant Cintas Corporation, breached the fiduciary duties it owed to the company’s retirement plan. They brought a putative class action pursuant to § 502(a)(2) of the Employment Retirement Income Security Act of 1974 (“ERISA”). But the Plaintiffs had each signed employment agreements that contained arbitration provisions. Cintas moved to compel arbitration, arguing that the Plaintiffs were bringing individual claims covered by those provisions.

This case presents issues of first impression for this court. The weight of authority and the nature of § 502(a)(2) claims suggest that these claims belong to the plan, not to individual plaintiffs. Therefore, the arbitration provisions in these individual employment agreements— which only establish the Plaintiffs’ consent to arbitration, not the plan’s—do not mandate that these claims be arbitrated. Further, the actions of Cintas and the other defendants do not support a conclusion that the plan has consented to arbitration. We therefore affirm the district court’s denial of the motion to compel arbitration.

I. BACKGROUND

Appellant Cintas is a national uniform and business-supply company. As with ma