United States Court of Appeals, District of Columbia Circuit
PATRICK RUSSELL, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, APPELLANT
HARMAN INTERNATIONAL INDUSTRIES, INC., ET AL., APPELLEES
Argued September 24, 2014
Appeal from the United States District Court for the District of Columbia. (No. 1:07-cv-02212).
Thomas J. McKenna, pro hac vice, argued the cause for the appellant. Toyja E. Kelley and John B. Isbister were with him on brief.
Sara Pikofsky argued the cause for the appellees. Evan Miller was with her on brief. Thomas F. Cullen, Jr. entered an appearance.
ROGERS and GRIFFITH, Circuit Judges.
Karen Lecraft Henderson, Circuit Judge :
This appeal involves the conversion process set forth in Rule 12(d) of the Federal Rules of Civil Procedure. That rule provides:
If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.
Fed. R. Civ. P. 12(d). Patrick Russell, the appellant, complains that the district court converted the appellees' motion to dismiss and granted them summary judgment without giving him a " reasonable opportunity" to present evidence. But we do not reach that issue because, assuming arguendo that the district court violated Rule 12(d), the error would be harmless in this case. For that reason, we affirm.
Patrick Russell is a former employee of Harman International Industries, Inc. Russell participated in Harman's 401(k) plan, which invests primarily in Harman common stock. In April 2007, Harman issued a press release claiming that two investment firms had agreed to acquire the company. That deal ultimately fell through, triggering a corresponding decline in the value of Harman's stock. Russell alleges that the deal failed because agents of Harman made false and misleading statements to the investment firms. He contends that these statements constituted a breach of fiduciary duty in violation of the Employee Retirement Income Security Act (ERISA). In December 2007, Russell filed a class-action complaint against Harman and various individuals associated with the company (collectively, Harman).
When he filed suit, Russell no longer worked for Harman. Six months earlier, Russell had signed a severance agreement that included ...