161928P.pdf   10/12/2017  James Thole  v.  U.S. Bank, National Assn.
   U.S. Court of Appeals Case No:  16-1928
   U.S. District Court for the District of Minnesota - Minneapolis   
   [PUBLISHED] [Smith, Author, with Colloton and Kelly, Circuit Judges] 
   Civil case - ERISA. This court's opinion in Harley v. Minn. Mining & Mfg. 
   co. 284 F.3d 901 (8th Cir. 2002) holds that when a defined benefits plan 
   is overfunded, a participant in the plan no longer falls within the class 
   of plaintiffs authorized under Section 1132(a)(2) to bring suit claiming 
   liability under Section 1109 for alleged breaches of fiduciary duties, and 
   the district court did not err in dismissing the matter; under both 
   Section 1132(a)(2) and (a)(3) of the Act, plaintiffs must show actual 
   injury - to the plaintiffs' interest in the Plan and to the Plan itself - 
   to fall within the class of plaintiffs whom Congress has authorized to sue 
   under the statute; when the Plan is overfunded, there is no actual or 
   imminent injury to the Plan itself that caused injury to the plaintiffs' 
   interest, so dismissal of the claims for relief under Section 1132(a)(3) 
   was proper; no error in denying plaintiffs' request for attorneys' fees as 
   the suit did not act as a catalyst to bring about a voluntary change in 
   defendant's behavior. Judge Kelly, concurring in part and dissenting in 
   part