Full opinion text
ORDER AND AMENDED OPINION ORDER I The opinion filed March 21, 2013, and published at 711 F.3d 1061, is amended as follows: Beginning on slip opinion page 28 delete the text from <At least one court has held that in cases implicating ERISA § 404 fiduciary duties, > through slip opinion 31 < difficulties with John Blair impel us to apply Firestone, and so we do.>. In place of the deletion substitute the following: <The Second Circuit has declined to apply the arbitrary and capricious standard from Firestone outside of the benefits context. See John Blair Commc’ns, Inc. Profit Sharing Plan v. Telemundo Grp., Inc. Profit Sharing Plan, 26 F.3d 360, 369-70 (2d Cir.1994). Other circuits have read Firestone more broadly, stating that its deference can reach beyond ERISA actions that arise under section 1132(a)(1). See, e.g., Hunter v. Caliber Sys., Inc., 220 F.3d 702, 711 (6th Cir.2000) (“[W]e find no barrier to application of the arbitrary and capricious standard in a case such as this not involving a typical review of denial of benefits.”); Moench v. Robertson, 62 F.3d 553, 565 (3d Cir.1995) (“[W]e believe that after Firestone, trust law should guide the standard of review over claims, such as those here, not only under section 1132(a)(1)(B) but also over claims filed pursuant to 29 U.S.C. § 1132(a)(2) based on violations of the fiduciary duties set forth in [ERISA § 404].”). In relevant part, John Blair involved a challenge under ERISA § 404 to how assets had been allocated. 26 F.3d at 370. The plaintiffs argued that the defendant had breached its fiduciary duty by retaining surplus income generated by virtue of a lag between when plan members elected to move assets and the actual transfer of the funds. Id. at 362, 368. As a defense, the fiduciary argued that the terms of the Plan authorized it to allocate the assets as it had, and that because the Plan “gave the plan committee discretion to interpret the provisions of the [P]lan” the court was bound to approve of its allocation unless it determined that the decision to do so had been “arbitrary and capricious” under Firestone. Id. at 369. Rejecting that framework, the Second Circuit instead decided to evaluate the claim under the “prudent person standard articulated in § 404 of ERISA.” Id. As support for this approach, the court cited a pre-Firestone authority from the Third Circuit and a pair of district court decisions from within the Second Circuit. See Struble v. N.J. Brewery Bmps.’ Welfare Trust Fund, 732 F.2d 325, 333-34 (3d Cir.1984); Ches v. Archer, 827 F.Supp. 159, 165-66 (W.D.N.Y.1993); Trapani v. Consol. Edison Emps.’ Mut. Aid Soc’y, Inc., 693 F.Supp. 1509, 1515 (S.D.N.Y.1988). Relying on John Blair and Struble, beneficiaries argue that their claim is similarly exempt from Firestone. We disagree. As noted above, this specific challenge by beneficiaries has been brought under 29 U.S.C. § 1104(a)(1)(D), which is part of ERISA § 404. See Tibbie, 639 F.Supp.2d at 1096 (explaining that beneficiaries “move[d] for summary judgment on the basis that [Edison] violated the terms of the Plan by failing to pay the full extent of Hewitt’s recordkeeping costs”). While subsection (a)(1)(B) codifies the statutory prudent-person standard, subsection (a)(1)(D) simply requires that actions be in line with the plan documents. See 29 U.S.C. § 1104(a)(1). John Blair was an attempt by a fiduciary to escape from otherwise applicable duties on the basis of a plan interpretation. The Second Circuit declined to apply Firestone deference because of a concern about bootstrapping. See John Blair, 26 F.3d at 369. Similarly, the district court decisions it favorably cited were examples of fiduciaries trying to weaken or evade the statutory standard of prudence. See Ches, 827 F.Supp. at 165 (rejecting defendants’ argument that “they cannot be found to have breached their fiduciary duties in the absence of an allegation and a showing that their determinations had been arbitrary and capricious”); Trapani, 693 F.Supp. at 1514 (“Defendants argue that the court must apply an arbitrary and capricious standard, rather than the prudent man standard specifically set forth in the statute.”). Edison is not making any such argument here, as beneficiaries have not pursued this challenge as a violation of the prudent person standard; instead, their contention rises or falls exclusively on what Plan section 19.02 allows. As to issues of plan interpretation that do not implicate ERISA’s statutory duties, they are subject to Firestone. At least three considerations prompt us to hold that the Firestone framework can govern issues of plan interpretation even when they arise outside the benefits context. First, while the Firestone case did not announce a holding beyond benefits, its rationale did not stem from an interpretive gloss on the welfare-benefits provision of ERISA. See 489 U.S. at 108, 109, 109 S.Ct. 948 (“ERISA does not set out the appropriate standard of review for actions under § 1132(a)(1)(B) challenging benefit eligibility determinations.”). Instead, because “ERISA abounds with the language and terminology of trust law” and because of legislative history to that effect, that body of law—not a discrete provision— dictated “the appropriate standard of review.” Id. at 110-11,109 S.Ct. 948 (“Trust principles make a deferential standard of review appropriate when a trustee exercises discretionary powers.”). The law of trusts was the basis for the dual-track standard whereby, absent a contrary designation, de novo review applies. See id. at 111, 109 S.Ct. 948. The Supreme Court’s most recent analysis of Firestone reenforces that the deference underlying that case is a product of what trust law has to say about matters of interpretation. See Conkright, 130 S.Ct. at 1646 (“[Ujnder trust law, the proper standard of review of a trustee’s decision depends on the language of the instrument creating the trust. If the trust documents give the trustee power to construe disputed or doubtful terms, ... the trustee’s interpretation will not be disturbed if reasonable.” (alterations in original) (internal citation and quotation marks omitted)). Second, one reason the Court in Conk-right rejected an exception the Second Circuit had carved out from Firestone deference was its potential to create “uniformity problems.” 130 S.Ct. at 1650. The concern was that if de novo review sometimes applied, fiduciaries would be in the “impossible situation” of being subject to different plan interpretations by courts depending on the particular facts of the cases where the interpretive issue had arisen. Id. Not applying Firestone deference in this case would risk similar difficulties, as parts of a plan could be assigned one meaning when litigated under section 1132(a)(1)(B) and another meaning when litigated, like here, under section 1104(a)(1)(D). Third, we observe that consistently applying Firestone to the question of what a plan means, “by permitting an employer to grant primary interpretive authority over an ERISA plan to the plan administrator,” has the virtue of “preserving] the ‘careful balancing’ on which ERISA is based.” Id. at 1649. In particular, it helps keep administrative and litigation expenses under control, which otherwise could “discourage employers from offering [ERISA] plans in the first place.” Id. (alteration in original). >. An amended opinion is filed concurrently with this order. II With these amendments, the panel has voted unanimously to deny the petition for rehearing. Judge O’Scannlain has voted to deny the petition for rehearing en banc, and Judges Goodwin and Zouhary have so recommended. The full court has been advised of the petition for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35. The petition for rehearing and petition for rehearing en banc is DENIED. No further petitions for panel rehearing or for rehearing en banc will be entertained. OPINION O’SCANNLAIN, Circuit Judge: Current and former beneficiaries sued their employer’s benefit plan administrator under the Employee Retirement Income Security Act charging that their pension plan had been managed imprudently and in a self-interested fashion. We must decide, among other issues, whether the Act’s limitations period or its safe harbor provision are obstacles to their suit. I A Edison International is a holding company for various electric utilities and other energy interests including Southern California Edison Company and the Edison Mission Group (collectively “Edison”), which itself consists of the Chicago-based Midwest Generation. Like most employer-organizations offering pensions today, Edison sponsors a 401(k) retirement plan for its workforce. During litigation, the total valuation of the “Edison 401(k) Savings Plan” was $3.8 billion, and it served approximately 20,000 employee-beneficiaries across the entire Edison International workforce. Unlike the guaranteed benefit pension plans of yesteryear, this kind of defined-eontribution plan entitles retirees only to the value of their own individual investment accounts. See 29 U.S.C. § 1002(34). That value is a function of the inputs, here a portion of the employee’s salary and a partial match by Edison, as well as of the market performance of the investments selected. To assist their decision making, Edison employees are provided a menu of possible investment options. Originally they had six choices. In response to a study and union negotiations, in 1999 the Plan grew to contain ten institutional or commingled pools, forty mutual fund-type investments, and an indirect investment in Edison stock known as a unitized fund. The mutual funds were similar to those offered to the general investing public, so-called retail-class mutual funds, which had higher administrative fees than alternatives available only to institutional investors. The addition of a wider array of mutual funds also introduced a practice known as revenue sharing into the mix. Under this, certain mutual funds collected fees out of fund assets and disbursed them to the Plan’s service provider. Edison, in turn, received a credit on its invoices from that provider. Past and present Midwest Generation employees Glenn Tibbie, William Bauer, William Izral, Henry Runowiecki, Frederick Suhadolc, and Hugh Tinman, Jr. (“beneficiaries”) sued under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001, et seq., which governs the 401(k) Plan, and obtained certification as a class action representing the whole of Edison’s eligible workforce. Beneficiaries objected to the inclusion of the retail-class mutual funds, specifically claiming that their inclusion had been imprudent, and that the practice of revenue sharing had violated both the Plan document and a conflict-of-interest provision. Beneficiaries also claimed that offering a unitized stock fund, money market-style investments, and mutual funds, had been imprudent. B The district court granted summary judgment to Edison on virtually all these claims. See Tibble v. Edison Int’l, 639 F.Supp.2d 1074 (C.D.Cal.2009). The court also determined that ERISA’s limitations period barred recovery for claims arising out of investments included in the Plan more than six years before beneficiaries had initiated suit. Id. at 1086; see 29 U.S.C. § 1113(1)(A). Remaining for trial after these rulings was beneficiaries’ claim that the inclusion of specific retail-class mutual funds had been imprudent. Without retreating from an earlier decision—at summary judgment—that retail mutual funds were not categorically imprudent, the court agreed with beneficiaries that Edison had been imprudent in failing to investigate the possibility of institutional-class alternatives. See Tibble v. Edison Int’l, No. CV 07-5359, 2010 WL 2757153, at *30 (C.D.Cal. July 8, 2010). It awarded damages of $370,000. Beneficiaries timely appeal the district court’s partial grant of summary judgment to Edison. Edison timely cross appeals, chiefly contesting the post-trial judgment. II Beneficiaries’ first contention on appeal is that the district court incorrectly applied ERISA’s six-year limitations period to bar certain of their claims. Edison argues for application of the shorter three-year period. We reject both parties’ approaches to timeliness. A For claims of fiduciary breach, ERISA § 413 provides that no action may be commenced “after the earlier of’: (1) six years after (A) the date of the last action which constituted a part of the breach or violation, or (B) in the case of an omission the latest date on which the fiduciary could have cured the breach or violation, or (2) three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation; except that in the case of fraud or concealment, such action may be commenced not later than six years after the date of discovery of such breach or violation. 29 U.S.C. § 1113. B 1 Beneficiaries argue that the court erred by measuring the timeliness under ERISA § 413(1) for claims alleging imprudence in plan design from when the decision to include those investments in the Plan was initially made. They are joined in this contention by the United States Department of Labor (“DOL”). Because fiduciary duties are ongoing, and because section 413(1)(A) speaks of the “last action” that constitutes the breach, these claims are said to be timely for as long as the underlying investments remain in the plan. Essentially, they argue that we should either equitably engraft onto, or discern from the text of section 413 a “continuing violation theory.” Beneficiaries’ argument, though, would make hash out of ERISA’s limitation period and lead to an unworkable result. We have previously declined to read the section 413(2) actual-knowledge provision as permitting the maintenance of the status-quo, absent a new breach, to restart the limitations period under the banner of a “continuing violation.” Phillips v. Alaska Hotel & Rest. Emps. Pension Fund, 944 F.2d 509, 520 (9th Cir.1991). In Phillips, the controlling opinion did not reach whether the same was true for section 413(1)(A). 944 F.2d at 520-21. Today we hold that the act of designating an investment for inclusion starts the six-year period under section 413(1)(A) for claims asserting imprudence in the design of the plan menu. Preliminarily, we observe that in the case of omissions the statute already embodies what the beneficiaries urge for the last action. Section 413(1)(B) ties the limitations period to “the latest date on which the fiduciary could have cured the breach or violation.” Importing the concept into (1)(A), then, would render (1)(B) surplus-age. This must be avoided when, as here, distinct meanings can be discerned from statutory parts. See Freeman v. Quicken Loans, Inc., — U.S.-, 132 S.Ct. 2034, 2043, 182 L.Ed.2d 955 (2012). Second, beneficiaries’ logic “confuse[s] the failure to remedy the alleged breach of an obligation, with the commission of an alleged second breach, which, as an overt act of its own recommences the limitations period.” Phillips, 944 F.2d at 523 (O’Scannlain, J., concurring). Characterizing the mere continued offering of a plan option, without more, as a subsequent breach would render section 413(1)(A) “meaningless and [could even] expose present Plan fiduciaries to liability for decisions made by their predecessors'—decisions which may have been made decades before and as to which institutional memory may no longer exist.” David v. Alpkin, 817 F.Supp.2d 764, 777 (W.D.N.C.2011), aff'd, 704 F.3d 327, 342-43 (4th Cir.2013). We decline to proceed down that path. As with the application of any statute of limitations, we recognize that injustices can be imagined, but section 413(1) “suggests a judgment by Congress that when six years has passed after a breach or violation, and no fraud or concealment occurs, the value of repose will trump other interests, such as a plaintiffs right to seek a remedy.” Larson v. Northrop Corp., 21 F.3d 1164, 1172 (D.C.Cir.1994). Finally, -we are unpersuaded by DOL’s suggestion that our holding will give ERISA fiduciaries carte blanche to leave imprudent plan menus in place. The district court allowed beneficiaries to put on evidence that significant changes in conditions occurred within the limitations period that should have prompted “a full due diligence review of the funds, equivalent to the diligence review Defendants conduct when adding new funds to the Plan.” These particular beneficiaries could not establish changed circumstances engendering a new breach, but the district court was entirely correct to have entertained that possibility. See, e.g., Quan v. Computer Scis. Corp., 623 F.3d 870, 878-79 (9th Cir.2010) (explaining that “fiduciaries are required to act ‘prudently’ when determining whether or not to invest, or continue to invest”). The potential for future beneficiaries to succeed in making that showing illustrates why our interpretation of section 413(1)(A) will not alter the duty of fiduciaries to exercise prudence on an ongoing basis. 2 For its part, Edison contends that beneficiaries had actual knowledge of conduct concerning retail-class mutual funds, triggering ERISA § 413(2), more than three years before August 16, 2007, when the complaint was filed. In order to apply ERISA’s limitation periods, the court “must first isolate and define the underlying violation.” Ziegler v. Conn. Gen. Life Ins. Co., 916 F.2d 548, 550-51 (9th Cir.1990). Here, as we explore in greater detail below, the crux of beneficiaries’ successful theory of liability at trial was that alternatives to retail shares had not been investigated—not simply that their inclusion had been imprudent. Second, specific to section 413(2), the court must inquire as to when the plaintiffs had actual knowledge of that violation or breach. Id. at 552. Edison points to Summary Plan Descriptions provided to all participants, as well as to mutual fund prospectuses furnished to investors, claiming that these materials made the inclusion of retail shares known. Similar information was also furnished to the unions during negotiations. But as the nature of the breach makes apparent, Edison is citing evidence of the wrong type of knowledge. When beneficiaries claim “the fiduciary made an imprudent investment, actual knowledge of the breach [will] usually require some knowledge of how the fiduciary selected the investment.” Brown v. Am. Life Holdings, Inc., 190 F.3d 856, 859 (8th Cir. 1999). For example, in Waller v. Blue Cross of California, we explained that the three-year ERISA limitations period did not run from the time when the plaintiffs had purchased the subject annuities because their theory of breach was that the fiduciaries had “unlawfully employed] an infirm bidding process” to acquire such annuities. 32 F.3d 1337, 1339, 1341 (9th Cir.1994); see also Frommert v. Conkright, 433 F.3d 254, 272 (2d Cir.2006) (“The flaw with the district court’s conclusion [under section 413(2)] is that the plaintiffs’ claim for breach of fiduciary duty is not premised solely on the defendants’ adoption of the phantom account; rather, it is based on allegations that the defendants made ongoing misrepresentations about the origins of the phantom account in an effort to justify its usage.”). Therefore, because these beneficiaries’ trial claims hinged on infirmities in the selection process for investments, we hold that mere notification that retail funds were in the Plan menu falls short of providing “actual knowledge of the breach or violation.” § 413(2). Ill On its cross appeal, Edison claims that beneficiaries’ entire case is proscribed by ERISA § 404(c), a safe harbor that can apply to a pension plan that “provides for individual accounts and permits a participant or beneficiary to exercise control over the assets in his account.” 29 U.S.C. § 1104(c)(1)(A). As the Edison 401(k) is clearly such a plan we consider the terms of section 404(c). It provides that: [N]o person who is otherwise a fiduciary shall be liable under this part for any loss, or by reason of any breach, which results from such participant’s or beneficiary’s exercise of control. Id. § 1104(c)(l)(A)(ii). Edison reads this statutory language as insulating it from all of beneficiaries’ claims because each challenged investment was a product of a “participant’s or beneficiary’s exercise of control,” by virtue of his selection of it from the Plan menu. Disagreeing, the DOL directs us to its previously announced interpretations. In a 1992 regulation it stated that in order to fall within section 404’s ambit, the breach or loss would need to be the “direct and necessary result” of the action by the beneficiary. 29 C.F.R. § 2550.404c-l(d)(2). A preamble that went through the notice- and-comment process and appeared in the agency’s final rule, stated that “the act of limiting or designating investment options which are intended to constitute all or part of the investment universe of an ERISA section 404(c) plan is a fiduciary function which ... is not a direct or necessary result of any participant direction.” 57 Fed.Reg. 46,922, 46,924 n. 27 (Oct. 13, 1992). To “reiterate its long held position,” 73 Fed.Reg. 43,014, 43,018 (July 23, 2008), DOL recently codified this guidance in the body of a new regulation so that it now appears in the Code of Federal Regulations, rather than in the preamble to a rule. See 75 Fed.Reg. 64,910, 64,946 (Oct. 20, 2010) (codified at 29 C.F.R. pt. 2550) (Section 404(c) “does not serve to relieve a fiduciary from its duty to prudently select and monitor any service provider or designated investment alternative offered under the plan”). This amended regulation, however, was not in effect during the time period at issue in this case. Our inquiry therefore centers on what appeared in the 1992 final rule. As to these earlier materials, the parties and amici join issue on the status this court should accord them. Beneficiaries and DOL argue that they are entitled to the robust sort of administrative-law deference dictated by Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Edison claims that a preamble is not the type of material to which courts properly defer. In any event, the California Employment Law Council, as amicus for Edison, argues that DOL’s interpretation is an impermissible construction of the statute. See id. (“If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”). Both Edison and the Employment Council rely on a divided opinion from the Fifth Circuit, and on an older case from the Third Circuit in which the alleged violations preceded the effective date of even the 1992 rule. See Langbecker v. Elec. Data Sys. Corp., 476 F.3d 299, 310-12 (5th Cir.2007); In re Unisys Sav. Plan Litig., 74 F.3d 420, 444-48 & n. 21 (3d Cir.1996). Several other circuits, by contrast, have accepted the position advocated by DOL. See, e.g., Pfeil v. State St. Bank & Trust Co., 671 F.3d 585, 599-600 (6th Cir.2012) (favoring DOL’s position in its “amicus curiae brief in this appeal and with the preamble to the regulations implementing the safe harbor”), cert. denied, — U.S. -, 133 S.Ct. 758, 184 L.Ed.2d 519 (2012); Howell v. Motorola, Inc., 633 F.3d 552, 567 (7th Cir.2011) (similar); DiFelice v. U.S. Airways, Inc., 497 F.3d 410, 418 n. 3 (4th Cir.2007) (implicitly deferring to the 1992 rulemaking). A The Chevron framework can apply only if two initial conditions are met: (1) Congress has delegated the power to that agency to pronounce rules that carry the force of law and (2) the interpretation for which deference is sought was rendered pursuant to that authority. Price v. Stevedoring Servs. of Am., Inc., 697 F.3d 820, 833 (9th Cir.2012) (en banc). That was the teaching of United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). Congress gave the Secretary of Labor authority to promulgate binding regulations interpreting Title I of ERISA, which includes section 404(c). 29 U.S.C. § 1135. It also empowered the Secretary to bring civil enforcement actions. Id. § 1132(a)(2). These charges plainly satisfy the first requirement under Mead. See, e.g., Gonzales v. Oregon, 546 U.S. 243, 258, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006) (explaining that “[i]n many cases authority is clear because the statute gives an agency broad power to enforce” its provisions). As for Mead’s second consideration, we do not view the fact that the interpretation appears in a final rule’s preamble as disqualifying it from Chevron deference. Edison cites nothing authoritative for cabining that doctrine to materials destined for the pages of the Code of Federal Regulations. Though not a necessary condition, a notice-and-comment rule is virtually assured eligibility for Chevron deference. See, e.g., Mead, 533 U.S. at 230-31, 121 S.Ct. 2164; Renee v. Duncan, 686 F.3d 1002, 1011 (9th Cir.2012). Additionally, other factors significant to whether deference is owed are present here. DOL has expressed its position for two decades, ERISA is “an enormously complex and detailed statute,” Conkright v. Frommert, 559 U.S. 506, 130 S.Ct. 1640, 1644, 176 L.Ed.2d 469 (2010), and this question is of central import to its administration. See Barnhart v. Walton, 535 U.S. 212, 222, 122 S.Ct. 1265, 152 L.Ed.2d 330 (2002). B Because the 1992 interpretation clears the Mead threshold, we proceed to the well-trod Chevron inquiry. This calls on the court to examine the plain meaning of the text and apply other relevant canons of statutory interpretation to ascertain whether Congress had a fixed “intention on the precise question at issue” that the agency must abide. Wilderness Soc’y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1060 (9th Cir.2003) (en banc). If so, “that intention is the law and must be given effect.” Id. If not, the court defers to the agency, provided that its interpretation is not “arbitrary, capricious, or manifestly contrary to the statute.” Id. at 1059; see also Nat'l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005) (explaining that “ambiguities in statutes within an agency’s jurisdiction to administer are delegations of authority to the agency to fill the statutory gap in reasonable fashion”). These inquiries can be pursued in two steps, or all at once. Compare Wilderness Soc’y, 353 F.3d at 1059, with Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 218 n. 4,129 S.Ct. 1498, 173 L.Ed.2d 369 (2009) (embracing single-step analysis because “if Congress has directly spoken to an issue then any agency interpretation contradicting what Congress has said would be unreasonable”). In Langbecker, the Fifth Circuit concluded that the DOL’s interpretation of section 404(c) could not receive Chevron deference “because it contradicts the governing statutory language.” 476 F.3d at 311. Respectfully, we disagree. Section 404(c) speaks of “any breach, which results from” a participant’s exercise of control. “Result from” means “[t]o arise as a consequence, effect, or outcome of some action.” Oxford English Dictionary (3d ed.2010); see Wilderness Soc’y, 353 F.3d at 1060 (“[A] fundamental canon of construction provides that unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” (internal quotation marks omitted)). Thus as cogently explained by DOL in its brief, “the selection of the particular funds to include and retain as investment options in a retirement plan is the responsibility of the plan’s fiduciaries, and logically precedes (and thus cannot ‘resultf] from’) a participant’s decision to invest in any particular option.” As previously noted, the DOL expressed the same position in a notice-and-comment rule—albeit less succinctly. The preamble to the 1992 final rule states that the act of limiting or designating investment options which are intended to constitute all or part of the investment universe of an ERISA 404(c) plan is a fiduciary function which, whether achieved through fiduciary designation or express plan language, is not a direct or necessary result of any participant direction of such plan. Thus, for example, in the case of look-through investment vehicles, the plan fiduciary has a fiduciary obligation to prudently select such vehicles, as well as a residual fiduciary obligation to periodically evaluate the performance of such vehicles to determine, based on that evaluation, whether the vehicles should continue to be available as participant investment options. Similar fiduciary obligations would exist in the ease of an investment universe consisting of investment alternatives which are not look-through investment vehicles but which are specifically designated by plan fiduciaries. 57 Fed.Reg. at 46,924 n. 27 (emphasis added). Although this rule invokes the regulatory terms “direct and necessary,” 29 C.F.R. § 2550.404c-l(d)(2), the agency’s ability to make the same point in its ami-cus brief and in the new 2010 rule without that terminology suggests that this gloss may not be essential. See Langbecker, 476 F.3d at 311. In our view, though, this does not diminish the validity of its interpretation. In an opinion that has been read by some to support the no-deference view, the Third Circuit keyed in on the fact that section 404(c) also speaks of “any loss” resulting from a participant’s control. In re Unisys, 74 F.3d at 445. For a 401(k) (or for any defined-eontribution plan for that matter), it is admittedly the case that monetary damage flowing from a fiduciary’s imprudent design of the investment menu passes through the participant, as intermediary. But is it proper to conclude that those losses, in the language of section 404(c), “result from” the participant’s choice? This might seem an odd question given that, literally speaking, there can be no loss without the participant selecting an investment. But, “[ijnjuries have countless causes, and not all should give rise to legal liability.” CSX Transp., Inc. v. McBride, — U.S. -, 131 S.Ct. 2630, 2637, 180 L.Ed.2d 637 (2011). Undoubtedly, in these situations, a fiduciary’s decision to include an investment option on the plan menu also is a cause of any participant’s loss. Confronted with this difficulty, DOL has effectively imported the tort-law notion of proximate cause to conclude that the most salient cause (as between the two) is the fiduciary’s imprudence. See id. (“What we ... mean by the word proximate, one noted jurist has explained, is simply this: Because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point.”) (omission in original) (internal quotation marks and alteration omitted). We deem this “a reasonable interpretation of the statute.” Entergy Corp., 556 U.S. at 218, 129 S.Ct. 1498. ERISA “allocates liability for plan-related misdeeds in reasonable proportion to the respective actors’ power to control and prevent the misdeeds.” Mertens v. Hewitt Assocs., 508 U.S. 248, 262, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993). As compared to the beneficiary, the fiduciary is better situated to prevent the losses that would stem from the inclusion of unsound investment options. It can design a prudent menu of options. Second, Chevron deference is meant to foster “coherent and uniform construction of federal law.” Orthopaedic Hosp. v. Belshe, 103 F.3d 1491, 1495 (9th Cir.1997). Our acknowledgment of the flexibility inherent in the phrase “result from” promotes this, because DOL adopts a similar interpretation with regard to breaches that—unlike claims of imprudent plan design—do chronologically follow a participant’s decision. Concluding that “a fiduciary is relieved of responsibility only for the direct and necessary consequences of a participant’s exercise of control,” 57 Fed.Reg. at 46,924, DOL takes the position that errors in carrying out the investment elections of a beneficiary give rise to liability notwithstanding that any associated loss technically also “results from such participant’s or beneficiary’s exercise of control.” 29 U.S.C. § 1104(c)(l)(A)(ii). These are just the sort of “difficult policy choices that agencies are better equipped to make than courts.” Brand X, 545 U.S. at 980, 125 S.Ct. 2688. We also reject the argument raised by Edison and the Employment Law Council that DOL’s interpretation renders section 404(c) a meaningless provision. When certain conditions are complied with, the provision safeguards fiduciaries from being liable for participants’ substantive investment decisions. 57 Fed.Reg. at 46,924. “The purpose of section 404(c) is to relieve the fiduciary of responsibility for choices made by someone beyond its control.” Howell, 633 F.3d at 567. These include matters such as, hypothetically, “the participant’s decision to invest 40% of her assets in Fund A and 60% in Fund B, rather than splitting assets somehow among four different funds, [or] emphasizing A rather than B.” Id. It is, indeed, the contrary view pressed by Edison that would render parts of the ERISA statute a nullity by making it nearly impossible for defined-contribution-plan beneficiaries to vindicate fiduciary imprudence. Cf. LaRue v. DeWolff, Boberg & Assocs., Inc., 552 U.S. 248, 256, 128 S.Ct. 1020, 169 L.Ed.2d 847 (2008) (citing the DOL’s regulations implementing section 404(c) in rejecting the converse interpretation); see also Langbecker, 476 F.3d at 321 (Reavley, J., dissenting) (“All commentators recognize that § 404(c) does not shift liability for a plan fiduciary’s duty to ensure that each investment option is and continues to be a prudent one.”). Because DOL’s interpretation of how the safe harbor functions is consistent with the statutory language, we conclude that the district court properly decided that section 404(c) did not preclude merits consideration of beneficiaries’ claims. See Tibbie, 639 F.Supp.2d at 1121. IV Edison on its cross appeal raises another argument that could waylay our analysis of beneficiaries’ substantive claims on their appeal. It contends that the district court improperly certified beneficiaries’ case as a class action under Federal Rule of Civil Procedure 23. Rule 23 sets out four prerequisites in subsection (a). A class must be “so numerous that joinder of all members is impracticable,” (a)(1), there must be “questions of law or fact common to the class,” (a)(2), “the claims or defenses of the representative parties” must be “typical of the claims or defenses of the class,” (a)(3), and those representatives must “fairly and adequately protect the interests of the class,” (a)(4). Classes must also comply with “at least one of the requirements of Rule 23(b).” Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir.2001). For the first time on its cross appeal and relying on out-of-circuit authority, Edison argues that this class action was improperly certified because the claims of the representative plaintiffs are not typical to the claims of the class at large. See Spano v. Boeing Co., 633 F.3d 574, 586 (7th Cir.2011) (expounding on Rule 23(a)(3)’s “typicality requirement”). In Spano, the court stated that “it seems that a class representative in a defined-contribution case would at a minimum need to have invested in the same funds as the class members.” Id. Seizing on this statement, Edison contends that one of the three funds successfully litigated at trial was not held by any of the six named plaintiffs. This violates Rule 23(a)(3), it claims, and requires that we reverse the class certification order. Beneficiaries correctly argue that arguments not raised in the district court ordinarily will not be considered on appeal. Dream Palace v. Cnty. of Maricopa, 384 F.3d 990, 1005 (9th Cir.2004). “This rule serves to ensure that legal arguments are considered with the benefit of a fully developed factual record, offers appellate courts the benefit of the district court’s prior analysis, and prevents parties from sandbagging their opponents with new arguments on appeal.” Id. In contrast to this typicality argument, Edison’s only Rule 23(a) arguments below were (i) a lack of commonality because the then-live misrepresentation claims would require individualized proof of reliance and (ii) a failure of adequacy. Edison concedes that it framed its argument strictly “as an adequacy issue below” but claims that because this inquiry can overlap with the typicality analysis, its presentation in the lower court suffices. While we have indulged some liberality as to whether a particular Rule 23(a) subdivision has been pressed, the presentation must have been “raised sufficiently for the trial court to rule on it.” In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir.2010). Here, the district court found that “[d]efendants [did] not challenge whether the claims of the individual plaintiffs are typical to the class.” As to adequacy, Edison’s critique below centered on a “contention that the named plaintiffs [were] nothing more than ‘window dressing or puppets for class counsel’ ” in that they were not knowledgeable about their legal claims—a far cry from its appellate contention about these beneficiaries’ investments. In light of the failure to present the issue to the district court, we expressly reserve the question of whether the Ninth Circuit should adopt a rule akin to that articulated in Spano, or whether the circumstances of-that case would be distinguishable from ours. Y We now turn to the merits of the main appeal. Beneficiaries argue that the district court erred in granting summary judgment to Edison on their claim that revenue sharing between mutual funds and the administrative service provider violated the Plan’s governing document, as well as was a conflict of interest. A Because ERISA requires fiduciaries to discharge their duties “in accordance with the documents and instruments governing the plan,” 29 U.S.C. § 1104(a)(1)(D), violations of the written plan have been recognized as a basis for liability. See, e.g., Cal. Ironworkers Field Pension Trust v. Loomis Sayles & Co., 259 F.3d 1036, 1042 (9th Cir.2001). Since 1997, Plan section 19.02 has stated: “The cost of the administration of the Plan will be paid by the Company.” Edison contracted with Hewitt Associates, LLC, for a variety of services, including the drafting of Plan updates and regulatory reports. Hewitt also maintained the system by which beneficiaries designate their contribution amounts and make their investment elections. The addition of a large menu of mutual funds in 1999 made the Plan more expensive to administer, so Edison availed itself of a practice’known in the industry as revenue sharing. Under this arrangement, mutual funds transfer a portion of their fees to the Plan’s service provider, Hewitt. That revenue reimburses Hewitt for its recordkeeping and other costs. In turn, Edison receives a credit on its bills from Hewitt. Beneficiaries, while conceding this new practice of revenue sharing was disclosed during the negotiations to expand the Plan offerings, argue that the arrangement violated the language of the Plan because it allowed Edison to escape from part of the obligation to pay. With a December 26, 2006 amendment this Plan language was revised to state that “[t]he cost of administration of the Plan, net of any adjustments by service providers, will be paid by the Company.” (emphasis added). The parties agree that under the new language these offsets are perfectly appropriate. The issue that arises, however, is whether the district court correctly determined that no triable issue existed over whether the pre-amendment version of section 19.02 allowed offsets. See Fed.R.Civ.P. 56(a). At bottom, this is a simple interpretive matter, but like most issues arising under ERISA there are complications. 1 In addition to the pension plan at issue in this ease, ERISA also governs “employee welfare benefit” plans such as those for health or disability. See 29 U.S.C. § 1002(1X2). “[T]he validity of a claim to benefits under an ERISA plan is likely to turn on the interpretation of terms in the plan at issue.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). The Supreme Court has handed down a trio of opinions explaining the framework for review when those disputes reach the judiciary. See Conkright, 130 S.Ct. at 1646 (discussing the Court’s two prior precedents, Firestone and Metropolitan Life Insurance Co. v. Glenn). The proper standard of review hinges, in part, on what the plan instrument says about interpretation. When the plan is silent, judges review its terms de novo. But, when the plan grants interpretive authority to its administrator, as is usually the case, a deferential abuse of discretion standard applies to the administrator’s determinations. The Edison Plan has a provision that speaks to interpretation; it vests the company’s Benefits Committee with the “full discretion to construe and interpret [its] terms and provisions.” See, e.g., Sandy v. Reliance Std. Life Ins. Co., 222 F.3d 1202, 1206-07 & n. 6 (9th Cir.2000). The Plan even purports to make interpretations by the Committee “final and binding on all parties.” Taking stock of these principles, the district court applied the abuse of discretion standard and then concluded that Edison’s view that the language did not foreclose revenue sharing had been reasonable. Yet, as we noted at the outset, the Supreme Court expounded these interpretive principles in the context of “ § 1132(a)(1)(B) actions challenging denials of benefits.” Firestone, 489 U.S. at 108, 109 S.Ct. 948. The Second Circuit has declined to apply the arbitrary and capricious standard from Firestone outside of the benefits context. See John Blair Commc’ns, Inc. Profit Sharing Plan v. Telemundo Grp., Inc. Profit Sharing Plan, 26 F.3d 360, 369-70 (2d Cir.1994). Other circuits have read Firestone more broadly, stating that its deference can reach beyond ERISA actions that arise under section 1132(a)(1). See, e.g., Hunter v. Caliber Sys., Inc., 220 F.3d 702, 711 (6th Cir.2000) (“[W]e find no barrier to application of the arbitrary and capricious standard in a case such as this not involving a typical review of denial of benefits.”); Moench v. Robertson, 62 F.3d 553, 565 (3d Cir.1995) (“[W]e believe that after Firestone, trust law should guide the standard of review over claims, such as those here, not only under section 1132(a)(1)(B) but also over claims filed pursuant to 29 U.S.C. § 1132(a)(2) based on violations of the fiduciary duties set forth in [ERISA § 404].”). In relevant part, John Blair involved a challenge under ERISA § 404 to how assets had been allocated. 26 F.3d at 370. The plaintiffs argued that the defendant had breached its fiduciary duty by retaining surplus income generated by virtue of a lag between when plan members elected to move assets and the actual transfer of the funds. Id. at 362, 368. As a defense, the fiduciary argued that the terms of the Plan authorized it to allocate the assets as it had, and that because the Plan “gave the plan committee discretion to interpret the provisions of the [P]lan” the court was bound to approve of its allocation unless it determined that the decision to do so had been “arbitrary and capricious” under Firestone. Id. at 369. Rejecting that framework, the Second Circuit instead decided to evaluate the claim under the “prudent person standard articulated in § 404 of ERISA.” Id. As support for this approach, the court cited a pre-Firestone authority from the Third Circuit and a pair of district court decisions from within the Second Circuit. See Struble v. N.J. Brewery Emps. Welfare Trust Fund, 732 F.2d 325, 333-34 (3d Cir.1984); Ches v. Archer, 827 F.Supp. 159, 165-66 (W.D.N.Y.1993); Trapani v. Con- sol. Edison Emps. ’ Mut. Aid Soc’y, Inc., 693 F.Supp. 1509, 1515 (S.D.N.Y.1988). Relying on John Blair and Struble, beneficiaries argue that their claim is similarly exempt from Firestone. We disagree. As noted above, this specific challenge by beneficiaries has been brought under 29 U.S.C. § 1104(a)(1)(D), which is part of ERISA § 404. See Tibbie, 639 F.Supp.2d at 1096 (explaining that beneficiaries “move[d] for summary judgment on the basis that [Edison] violated the terms of the Plan by failing to pay the full extent of Hewitt’s recordkeeping costs”). While subsection (a)(1)(B) codifies the statutory prudent-person standard, subsection (a)(1)(D) simply requires that actions be in line with the plan documents. See 29 U.S.C. § 1104(a)(1). John Blair was an attempt by a fiduciary to escape from otherwise applicable duties on the basis of a plan interpretation. The Second Circuit declined to apply Firestone deference because of a concern about bootstrapping. See John Blair, 26 F.3d at 369. Similarly, the district court decisions it favorably cited were examples of fiduciaries trying to weaken or evade the statutory standard of prudence. See Ches, 827 F.Supp. at 165 (rejecting defendants’ argument that “they cannot be found to have breached their fiduciary duties in the absence of an allegation and a showing that their determinations had been arbitrary and capricious”); Trapani 693 F.Supp. at 1514 (“Defendants argue that the court must apply an arbitrary and capricious standard, rather than the prudent man standard specifically set forth in the statute.”). Edison is not making any such argument here, as beneficiaries have not pursued this challenge as a violation of the prudent person standard; instead, their contention rises or falls exclusively on what Plan section 19.02 allows. As to issues of plan interpretation that do not implicate ERISA’s statutory duties, they are subject to Firestone. At least three considerations prompt us to hold that the Firestone framework can govern issues of plan interpretation even when they arise outside the benefits context. First, while the Firestone case did not announce a holding beyond benefits, its rationale did not stem from an interpretive gloss on the welfare-benefits provision of ERISA. See 489 U.S. at 108, 109, 109 S.Ct. 948 (“ERISA does not set out the appropriate standard of review for actions under § 1132(a)(1)(B) challenging benefit eligibility determinations.”). Instead, because “ERISA abounds with the language and terminology of trust law” and because of legislative history to that effect, that body of law— not a discrete provision—dictated “the appropriate standard of review.” Id. at 110-11, 109 S.Ct. 948 (“Trust principles make a deferential standard of review appropriate when a trustee exercises discretionary powers.”). The law of trusts was the basis for the dual-track standard whereby, absent a contrary designation, de novo review applies. See id. at 111, 109 S.Ct. 948. The Supreme Court’s most recent analysis of Firestone reenforces that the deference underlying that case is a product of what trust law has to say about matters of interpretation. See Conkright, 130 S.Ct. at 1646 (“[U]nder trust law, the proper standard of review of a trustee’s decision depends on the language of the instrument creating the trust. If the trust documents give the trustee power to construe disputed or doubtful terms, ... the trustee’s interpretation will not be disturbed if reasonable.” (alterations in original) (internal citation and quotation marks omitted)). Second, one reason the Court in Conk-right rejected an exception the Second Circuit had carved out from Firestone deference was its potential to create “uniformity problems.” 130 S.Ct. at 1650. The concern was that if de novo review sometimes applied, fiduciaries would be in the “impossible situation” of being subject to different plan interpretations by courts depending on the particular facts of the cases where the interpretive issue had arisen. Id. Not applying Firestone deference in this case would risk similar difficulties, as parts of a plan could be assigned one meaning when litigated under section 1132(a)(1)(B) and another meaning when litigated, such as here, under section 1104(a)(1)(D). Third, we observe that consistently applying Firestone to the question of what a plan means, “by permitting an employer to grant primary interpretive authority over an ERISA plan to the plan administrator,” has the virtue of “preserving] the ‘careful balancing’ on which ERISA is based.” Id. at 1649. In particular, it helps keep administrative and litigation expenses under control, which otherwise could “discourage employers from offering [ERISA] plans in the first place.” Id. (alteration in original). 2 ERISA administrators abuse their discretion if they act without explanation or “construe provisions of the plan in a way that conflicts with the plain language of the plan.” Day v. AT & T Disability Income Plan, 698 F.3d 1091, 1096 (9th Cir.2012). We are instructed not to disturb those interpretations if they are reasonable. See Conkright, 130 S.Ct. at 1651. To start with, we discern no explicit conflict with the plain language of the Plan. See Day, 698 F.3d at 1096. Section 19.02 required the company to pay the costs, and Edison did. Although beneficiaries argue that the “costs” are the expenses associated with Hewitt before the offsets, the more natural reading is that “costs” simply are whatever bills Hewitt presented Edison with. Under this commonsense reading, the Plan merely assigned Edison an affirmative obligation to pay. It did not, as beneficiaries would have it, prohibit “Hewitt’s recordkeeping services from being paid by a third party such as mutual funds.” That kind of interpretation, nonsensically, would also imply that if Hewitt had simply lowered its prices (maybe due to efficiency or market pressure) Edison would be somehow shirking its obligation under Plan § 19.02. Beyond the text, in conducting abuse of discretion review, courts consider “various [other] criteria for determining the reasonableness of a fiduciary’s discretionary decision.” Booth v. Wal-Mart Stores, Inc. Assocs. Health & Welfare Plan, 201 F.3d 335, 342 (4th Cir.2000). Viewing the matter in terms of those considerations further establishes the soundness of Edison’s position. Its view is most “consistent with the goals of the plan,” as it facilitated the expansion of the Plan’s mutual fund offerings. Id. We also note that section 19.02 has been applied consistently over time. Undisputed evidence showed that the union negotiators and Edison had “extensive discussions with regard to how revenue sharing from the mutual funds would be used.” Also, between 1999 when the process started, and 2006 when the language was modified, on at least seventeen occasions participants were specifically advised that mutual funds were being used to reduce the cost of retaining Hewitt. For example, one Summary Plan Description in evidence said: “the fees received by Edison’s 401(k) plan recordkeeper are used to reduce the recordkeeping and communication expenses of the plan paid by the company.” Another consideration under the abuse of discretion standard is “whether the challenged interpretation is at odds with the procedural and substantive requirements of ERISA itself.” de Nobel v. Vitro Corp., 885 F.2d 1180, 1188 (4th Cir.1989) (citing Blau v. Del Monte Corp., 748 F.2d 1348, 1353 (9th Cir.1984)). Although we explain the reasoning behind this observation next, we are satisfied that revenue sharing as carried out by Edison does not violate ERISA. B Beneficiaries alternatively argue that the statute’s conflicts provision, ERISA § 406(b)(3), prohibits the practice of revenue sharing. ERISA § 406 is similar to a duty-of-loyalty provision. See Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 143 n. 10, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985). It prohibits the type of business deals “likely to injure the pension plan.” Wright v. Or. Metallurgical Corp., 360 F.3d 1090, 1100 (9th Cir.2004). 1 ERISA § 406(b)(3) provides that: A fiduciary with respect to a plan shall not receive any consideration for his own personal account from any party dealing with such plan in connection with a transaction involving the assets of the plan. 29 U.S.C. § 1106(b)(3). Beneficiaries’ claim is that Edison’s revenue sharing arrangement violated this provision because Edison received “consideration” in the form of discounts for administrative expenses from Hewitt, which was a “party dealing with” the Plan. The DOL, though, has issued several non binding advisory opinions staking out the position that a fiduciary does not violate section 406(b)(3) so long as “the decision to invest in such funds is made by a fiduciary who is independent” of the fiduciary receiving the fee. DOL Advisory Op.2003-09A, 2003 WL 21514170 (June 25, 2003); see also DOL Advisory Op. 97-15A, 1997 WL 277980 (May 22, 1997) (fiduciary that “does not exercise any authority or control” to cause the suspect investment is not liable). Relying on these concepts, the district court granted summary judgment to Edison. To do so, it conceived of “Edison,” not as a unified corporate entity, but in terms of its constituent parts. In brief, the “fiduciaries” named in the Plan include the Southern California Edison Benefits Committee and its members, as well as the Edison International Trust Investment Committee and its members. The “Plan Sponsor” is Southern California Edison, while its Benefits Committee is designated under ERISA as the “Plan Administrator.” See 29 U.S.C. § 1002(16)(A)(i), (B). Edison International’s CEO appoints the Investment Committee and Southern California Edison’s CEO handles appointments to the Benefits Committee. In light of this diffusion of responsibility, the district court observed that, as the sole contracting party with Hewitt, only the subsidiary Southern California Edison had received the credit from administrative expenses. It then noted that it was the Investment Committee of the parent company, Edison International, which had selected the mutual funds that featured revenue sharing. From this, the court drew the conclusion that a different fiduciary had received the “consideration” than the fiduciary which had (in the DOL’s parlance) exercised “authority or control” over the offending investment. Therefore, the mutual fund revenue sharing had not violated section 406(b)(3). As amicus curiae, the DOL vigorously objects to the lower court’s parsing of Edison International this way, and objects to what it considers an overly broad reading of its advisory opinions. DOL maintains that permitting “fiduciaries to make plan asset investment decisions that result in the company on which they serve as directors and officers receiving an economic benefit from a third party is precisely the kind of transaction—rife with the potential for abuse—that Congress intended to prohibit in section 406(b)(3).” In response, Edison argues that the separate legal identities of the committees and companies are meaningful, and calls to our attention the district court’s finding that beneficiaries had not marshaled evidence that justified disregarding their putative separateness. We review the district court’s entry of summary judgment de novo, and we are empowered to affirm on any basis the record will support. See Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047 (9th Cir.2009). In light of that, we reserve for another case whether the lower court’s control determinations are defensible and, instead, proceed to consider the basis for affirmance expressly advocated by the DOL. 2 The DOL directs our attention to its regulatory interpretation at 29 C.F.R. § 2550.408b-2(e)(3), which states that “[i]f a fiduciary provides services to a plan without the receipt of compensation or other consideration (other than reimbursement of direct expenses properly and actually incurred in the performance of such services ... ), the provision of such services does not, in and of itself, constitute an act described in section 406(b) of the Act.” Assuming that the Edison Plan permitted revenue sharing (as we concluded above), then as DOL explains, the discounts on its invoices from Hewitt “would not constitute the receipt of any ‘consideration’ ” by Edison “within the meaning of the section 406(b)(3) prohibition.” In further support, the agency cites one of its opinion letters that permitted, under the authority of section 2550.408b-2(e), a fiduciary to receive reimbursement from an unrelated mutual fund of direct expenses for which the plan would otherwise be liable. See DOL Advisory Op. 97-19A, 1997 WL 540069 (Aug. 28, 1997). The district court intimated that our Patelco Credit Union v. Sahni decision might be to the contrary. 262 F.3d 897 (9th Cir.2001). It is not, although we do not fault the district court for its misconception. It did not have the advantage, afforded us, of DOL’s participation in tackling these regulatory intricacies. In Patel-co, the fiduciary had wrongfully deposited ERISA Plan assets—two checks payable to the company—into his own account. Id. at 903, 908. This straightforwardly constituted “consideration for his own personal account” from a “party dealing with [the] plan,” in violation of ERISA § 406(b)(3). Id. at 909-10. Confronted with that scenario, we vindicated DOL’s pronouncement that when a fiduciary self-deals in violation of ERISA § 406(b), the “reasonable compensation exception” found in section 408(b)(2) cannot be used as a shield from liability. Id. at 910-11; see also Dupree v. Prudential Ins. Co. of Am., No. 99-8337, 2007 WL 2263892, at *42 (S.D.Fla. Aug. 7, 2007) (explaining this). By contrast in our case, section 2550.408b-2(e)(3), as it is “routinely interpreted by the DOL,” exempts revenue sharing payments from the very definition of consideration. Dupree, 2007 WL 2263892, at *42. The Department’s position is that rather than constituting “consideration,” “such payments may be considered ‘reimbursement’ within the meaning of regulation section 2550.408b-2(e).” DOL Advisory Op. 97-19A. That means it is not a section 406(b)(3) violation at all. Aside from citing Patelco as the lower court understood it, beneficiaries’ only response is, in effect, that we ought to read DOL’s regulations and opinion letters differently than DOL has counseled in its amicus brief. We decline to do so. Notably, courts are instructed to “defer to an agency’s interpretation of its own regulation, advanced in a legal brief unless that interpretation is ‘plainly erroneous or inconsistent with the regulation.’” Chase Bank USA, N.A. v. McCoy, — U.S.-, 131 S.Ct. 871, 880, 178 L.Ed.2d 716 (2011) (discussing Auer deference). We mention this not because we resolve whether this view is permissible either under ERISA or the regulation, but simply to explain why beneficiaries have not convinced us to reject DOL’s interpretation in this case. VI Beneficiaries next claim that Edison violated its duty of prudence under ERISA by including several investment vehicles in the Plan menu: (i) mutual funds, (ii) a short-term investment fund akin to a money market, and (iii) a unitized fund for employees’ investment in Edison stock. A ERISA demands that fiduciaries act with the type of “care, skill, prudence, and diligence under the circumstances” not of a lay person, but of one experienced and knowledgeable with these matters. 29 U.S.C. § 1104(a)(1)(B). Fiduciaries also must act exclusively in the interest of beneficiaries. Id. § 1104(a)(1). These obligations are more exacting than those associated with the business judgment rule so familiar to corporate practitioners, Howard v. Shay, 100 F.3d 1484, 1489 (9th Cir.1996), a standard under which courts eschew any evaluation of “substantive due care