UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ YOSAUN SMITH, individually and as a representative of │ a class of similarly situated persons and on behalf of │ Catholic Health Initiatives 401(k) Plan, │ Plaintiff-Appellant, > No. 21-5964 │ │ v. │ │ COMMONSPIRIT HEALTH a/k/a Catholic Health │ Initiatives; CATHOLIC HEALTH INITIATIVES │ RETIREMENT PLANS SUBCOMMITTEE; DOES 1–10, │ Defendants-Appellees. │ ┘ Appeal from the United States District Court for the Eastern District of Kentucky at Covington. No. 2:20-cv-00095—David L. Bunning, District Judge.

Argued: June 8, 2022

Decided and Filed: June 21, 2022

Before: SUTTON, Chief Judge; KETHLEDGE and MURPHY, Circuit Judges.

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COUNSEL ARGUED: Alec J. Berin, MILLER SHAH LLP, Philadelphia, Pennsylvania, for Appellant. Lars C. Golumbic, GROOM LAW GROUP, CHARTERED, Washington, D.C., for Appellees. ON BRIEF: Alec J. Berin, James C. Shah, Kolin C. Tang, MILLER SHAH LLP, Philadelphia, Pennsylvania, James E. Miller, MILLER SHAH LLP, Chester, Connecticut, Mark K. Gyandoh, CAPOZZI ADLER, P.C., Merion Station, Pennsylvania, Jeffrey S. Goldenberg, GOLDENBERG SCHNEIDER, LPA, Cincinnati, Ohio, for Appellant. Lars C. Golumbic, Sean C. Abouchedid, Meredith F. Kimelblatt, Nathaniel W. Ingraham, GROOM LAW GROUP, CHARTERED, Washington, D.C., Jennifer Orr Mitchell, DINSMORE & SHOHL LLP, Cincinnati, Ohio, for Appellees. Elizabeth L. McKeen, O’MELVENY & MYERS LLP, Newport Beach, California, Brian D. Boyle, Deanna M. Rice, O’MELVENY & MYERS LLP, Washington, D.C., Jaime A. Santos, GOODWIN PROCTER LLP, Washington, D.C., for Amici Curiae. No. 21-5964 Smith v. CommonSpirit Health, et al. Page 2

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OPINION _________________

SUTTON, Chief Judge. Yosaun Smith claims that her retirement plan should have offered a different mix of fund options, in particular that it should have replaced actively managed mutual funds with passively managed mutual funds. But the Employee Retirement Income Security Act, ERISA for short, does not give the federal courts a broad license to second- guess the investment decisions of retirement plans. It instead supplies a cause of action only when retirement plan administrators breach a fiduciary duty by, say, offering imprudent investment options. Because Smith has not alleged facts from which a jury could plausibly infer that CommonSpirit breached any such duty and because Smith’s other claims do not get off the ground, we affirm the district court’s dismissal of her complaint.

I.

A.

Retirement plans have changed over the years. When Congress enacted ERISA in 1974, 29 U.S.C. § 1001 et seq., a defined-benefit plan was the order of the day. Such plans generally provide benefits based on the years of service and salary levels of employees