Company Stock in Retirement Plans: Where Lies the Line Between Prudent and Imprudent Conduct?
Chris Carosa at Fiduciary News highlighted this New York Times article in his twitter feed the other day, in which the author argued that there is no reason, from the point of view of a participant/employee, to hold large amounts of company stock in a retirement portfolio (as opposed to, say, as part of a bonus plan or other compensation supplement that is external to a 401(k) plan or other retirement account). The author of the article makes a very persuasive case that, as a participant, holding company stock of their employer is a mistake, and violates basic, elementary rules of diversification and investment philosophy that any competent financial advisor would insist their clients live by. So, the author asks, how can it possibly make any sense to have company stock holdings in a 401(k) plan or to have company matches to retirement savings be in the form of company stock? The author’s answer, as you can tell from the summary above, is it doesn’t.
But if it doesn’t make any sense from the perspective of a participant, then how can it ever be a prudent decision for a fiduciary to offer it in the first place? A fiduciary is supposed to be acting as a knowledgeable expert and in the best interest of the participants, so if one accepts the premise that someone knowledgeable about retirement investing would not hold company stock in a 401(k) plan, then it would seem to never be in the interest of participants – and therefore compliant with a fiduciary’s obligations – to offer company stock in a retirement plan. Note that this question concerns general retirement savings of employee participants, and not ESOP holdings, which we know are deliberately and intentionally overweighted to holding company stock.
Now, this analysis needs one qualification. We all know that some companies do so well that employees and participants would be ill-served by not holding employer stock, and the returns on their retirement accounts would be severely reduced absent large holdings of company stock. All have heard the story of Microsoft millionaires (or Apple, or Facebook, or Google, or fill in the name of the tech company) but we also know that sometimes this has been true of employers in less glamorous industries as well (even if not to the same extent with regard to the appreciation of their stock). But these events are outliers in a bell curve, and are not the experience of most participants or of most employers offering company stock, just as the instances of company stock holdings going south, i.e., a stock drop, are outliers as well. For most participants in most plans in most companies, the potential gain certainly doesn’t outweigh the general risk, accepted in investment theory, of the accompanying excessive concentration of stock of any one company, which in this instance is the employer.
So, if this is the case, how can it ever be prudent to offer company stock in a 401(k) plan, and, if the stock falls in value, not have it be a fiduciary breach? Such an analysis would suggest that even holding or offering the company stock as an option is a fiduciary breach, as it is not prudent to offer it at all. But this is where ERISA meets the real world. The statute was not enacted in a vacuum, but was instead created by balancing competing interests. And the answer to the question, and the reason why such an argument would not succeed in a stock drop case, is that ERISA allows, to a certain extent, such holdings, so their very existence alone, without more, cannot constitute a fiduciary breach. The statute allows for it, so doing it can’t breach the statute.
And this, to a certain extent, is what Dudenhoeffer was about – the idea that a plan sponsor gets the protection of being allowed to do, without being accused of imprudent conduct, what the statute specifically allows, but is not insulated anymore than that from scrutiny of its conduct. So here, with regard to company stock, despite the idea that it is probably never prudent, as an individual retirement investor, to hold an excessive concentration of one company’s stock and in particular that of one’s employer, that alone cannot support a breach of fiduciary duty claim against a plan sponsor; instead, to impose fiduciary liability, that plan sponsor must have done something more than just offering that stock to employee participants.
What Does Teamsters Local 710 Pension Fund v. The Bank of N.Y. Mellon Corp. Tell Us About the Current Judicial Approach to Breach of Fiduciary Duty Cases?
For many years, I argued on this blog that courts, when it came to ERISA breach of fiduciary duty cases, were too slow to decide cases on the facts and too quick to decide them on the basis of judicial assumptions or, worse yet, legal presumptions. I criticized this roundly in my article "Retreat from the High Water Mark," where I discussed the different outcomes in excessive fees cases between those where the courts made certain assumptions about the mutual fund marketplace and those where the courts took evidence on that issue before deciding the case. As I have often written, both on this blog and elsewhere, the world often looks much different after evidence is taken than it does before.
Certainly, particularly after Iqbal and Twombly – which were needed correctives to certain aspects of federal practice – there is room for dismissing poorly pled or weakly supported breach of fiduciary duty cases right at the get go, by means of motions to dismiss. The problem, though, came when courts went beyond simply considering whether the acts alleged in the complaint were sufficient to describe a breach of fiduciary duty claim under generally accepted principles concerning such claims, for instance whether the complaint alleged fiduciary status and facts indicating a lack of prudence, and instead moved onto dismissing claims that satisfied those standards by creating presumptions that established separate and additional pleading barriers to prosecuting such a claim, as occurred with the Moench presumption, or by assuming knowledge of the investment practices and world at issue as a basis for dismissal that could not be found in the record at the time the motion was decided, as the Seventh Circuit arguably did in Hecker.
For those of you who have been paying attention, I haven’t written much on that theme lately, and there is a reason for it: presumably independent of anything I have written, courts have begun doing exactly what I argued for, and the pendulum has now firmly swung towards courts deciding such cases on their merits after considering the evidence. Indeed, Fifth Third Bancorp v. Dudenhoeffer, with its rejection of the Moench presumption, may have signaled to lower courts the need to decide all breach of fiduciary duty cases on their merits and not on the creation of legal presumptions or judicial assumptions based on sources beyond the ERISA statute itself or the evidence in a given case.
This jumped out at me when I read this Bloomberg BNA article on the Northern District of Illinois’ decision the other day (actually, while I was at depositions in Chicago, around the corner from the court, metaphorically speaking) in Teamsters Local 710 Pension Fund v. The Bank of N.Y. Mellon Corp., followed by a reading of the decision itself. The Bloomberg BNA article nicely sums up the events that gave rise to the lawsuit, explaining that:
In 2006, the Teamsters plan authorized BNY Mellon to lend securities from the plan's accounts in return for collateral that would then be invested in certain approved investments. The goal was to provide the plan incremental returns without exposure to the substantial risk often present in speculative investments.
As part of this securities lending program, BNY Mellon purchased almost $25 million in Lehman-backed floating rate notes.
As Lehman's financial condition deteriorated and ultimately collapsed, the Teamsters plan suffered a $24.5 million deficiency from the note held by BNY Mellon.
The plan filed suit against two BNY entities, accusing them of fiduciary imprudence and disloyalty under the Employee Retirement Income Security Act.
BNY Mellon sought to have the case resolved on the pleadings by arguing that Dudenhoffer established legal rules that bar the claim, on the thesis that the defendants, after Dudenhoffer, could not be liable for breach of fiduciary duty for having failed to “[recognize,] based on publicly-available information alone, that Lehman's debt was over-valued.”
The Court, though, rejected this argument, ruling that:
Defendants' argument about the impact of Fifth Third is based upon a reading of the complaint that is too narrow. The Court does not read the plaintiffs' complaint as alleging that the defendants lacked prescience or that they should have recognized from the information available in the market that the Lehman bonds were over-valued. Rather, the plaintiffs allege that, under the circumstances as they existed in the market at the time, no reasonably prudent securities lending fiduciary would have concluded that Lehman debt was a sufficiently safe investment for a securities lending client and no reasonably prudent securities lending fiduciary would have maintained the collateral investments in the Lehman Notes through Lehman's bankruptcy filing. Thus the claim is not that the defendants were imprudent in failing to recognize that Lehman would file for bankruptcy and not pay out on the notes, but that it was imprudent to hold the Lehman debt, given the circumstances existing in the market and given the plaintiffs' investment profile. Nothing in Fifth Third forecloses such claims.
In short, the Court concluded that the complaint pled the standard elements to show a breach of fiduciary duty, namely a lack of prudence under the then prevailing circumstances, and that such a claim was entitled to proceed to an adjudication on its merits, after discovery. This is a far cry from the day, not too long ago, that many such claims never made it past the pleading stage and into discovery, at which point a court could decide whether a fiduciary breach occurred by looking at all of the evidence, learned during discovery, of what was actually done, and under what circumstances, by the fiduciaries of a plan. As I have said before, the world often looks different in that light than it does when early, preliminary motions in a case are filed.
Breach of Fiduciary Duty, Preemption and Liberal Pleading Rules
I obtained dismissal of a breach of fiduciary duty claim, as well as state law claims, against my clients in an opinion filed on Friday. While long time readers know that I won’t comment substantively on rulings involving my clients, the opinion is worth a read on at least two substantive points involving breach of fiduciary duty claims. The first is the requirement of discretion on the part of a defendant for the defendant to become a fiduciary by means of administrative actions relating to an ERISA-governed plan; the second is the question of whether state law claims relating to an ERISA-governed plan are preempted when brought against a party that is not a fiduciary.
Separately, though, because this part of the opinion does not concern my clients, I can comment on a part of the opinion that will be very interesting to anyone who, like me, is a federal procedure geek. The Court engages in a sustained analysis of Federal Rule of Civil Procedure 15(a) and the right to amend as a matter of course, and how it applies in a circumstance where the original complaint, which the plaintiff seeks to amend, was in fact never served. The Court found the right to amend to still exist, regardless of the failure to serve the original complaint. The Court found that the modern rules reject hyper-technicalities when it comes to pleading, and that the rules therefore cannot bar an amended complaint simply because the original complaint was not first served. Interestingly, though, the Court recognized what is in essence a good faith requirement for a plaintiff to be allowed to avoid a bar that might otherwise be created by a perfectly literal reading of the federal rules, noting that its conclusion might be different if it were shown that the plaintiff were taking advantage of the liberality of the pleading rules for purposes of gaming, undermining or otherwise seeking to thwart the inherent purposes of the rules. Fun stuff, I think anyway.
Back to the Future: Learning from the Past and Looking into the Future of 401(k) Advisor Fees
So, my past two Mondays have been bookended by being quoted in a pair of excellent articles concerning the operation of 401(k) plans, one in Pensions & Investments and the other in Fiduciary News. The interesting thing about them is that one is about looking backwards, and the other about looking forwards. In the Pensions & Investments article (you can find the link here, but subscription is required; sometime copyright litigator that I am, I don’t do work arounds on these things), author Robert Steyer asks – and looks to answer – whether, and what, plans and their lawyers learn from settlements of major disputes involving other company’s benefit plans. The answer he finds, with help from me and a number of other lawyers who often look closely at settlements entered into by other lawyers’ clients, is that lawyers who represent plans see such settlements as a free look at what went wrong and how to plan future actions to avoid ending up sued for the same things.
In the second article, Chris Carosa of Fiduciary News looks into the future of plan advising, and at the type of compensation schemes that might work best in the brave new world of advising 401(k) plans. Chris points out that changes in the industry present an opportunity to adjust the compensation model for advisors to plans but I, wet blanket that I can sometimes be, point out in the article that such changes may raise questions of both liability and responsibility for a plan’s investments under ERISA.
Comparing and contrasting the two articles is worth doing, particularly if it provokes you to think a little bit about the inevitable process of dragging plan operations and advisor compensation into the future. As Don Draper once said, “Change is neither good or bad, it simply is.”
Me, Tibble, Pensions & Investments and Don Draper
With the Supreme Court hearing argument this month in Tibble, I thought I would pass along a link to this article in Pensions & Investments (registration may be required) on the case. Leaving aside (for the moment) the fact that I am quoted in the article, it is worth reading as a primer on the issues before the Court that are raised by the case. As the article makes plain, the case is not simply about the six year statute of limitations under ERISA, or about – as someone else quoted in the article notes – retail versus institutional share classes. Instead, it is a vehicle that could allow the Court to discuss many aspects of fiduciary duty in this context, and how they fit together with the statute of limitations. As such, the Court, if it uses the case in that way, could easily overturn a lot of apple carts, in much the same way that its discussion a few years ago in Amara, arguably in dicta and on an issue that was not expressly before the Court, upset a lot of assumptions about the scope of equitable relief under ERISA.
For my contribution to the article, I noted that:
“We need to clarify how the six-year statute runs,” said Stephen D. Rosenberg, of counsel at the Wagner Law Group, Boston. “The linchpin issue is whether a sponsor has a continuing duty. Do you have a continuing duty after six years?”
If the Supreme Court supports arguments by Edison 401(k) plan participants that fiduciaries can be held responsible beyond the six-year time limit, the ruling could encourage more fiduciary breach lawsuits, he said.
From a practical perspective, the answer to that question will impact plans in a number of ways, running from whether we will see a trickling off of class actions filed over excessive fees, to the costs of running such plans, to the level of diligence that plan sponsors and administrators will need to apply. All of these may vary depending on how the Court answers the question of when does the six year period start and end, and, perhaps more importantly, what events can start the six year period running again.
In some ways, to steal a line from an in-house benefits lawyer I know at a company with plans in place holding very large assets, it is almost like asking if you can sue Don Draper today for sexual harassment thirty years ago at Sterling Cooper. ERISA is no different than any other area of the law: there has to be a starting point and an ending point for the time period during which conduct can give rise to a suit. The multi-million dollar question posed by Tibble for the numerous plans out there is how do you determine those points in the context of investment decisions made by plans, where those investments may be held for many, many years.
ACI's 9th National Forum on ERISA Litigation
The American Conference Institute (ACI) hosts a comprehensive ERISA litigation conference twice a year, in New York in October and in Chicago in April. Fall in Manhattan and spring in Chicago. What’s not to like?
Beyond that though, the conferences have always provided a detailed and in-depth look at the hottest current topics in ERISA litigation, and I don’t say that just because I am speaking at the upcoming conference, in April, in Chicago. I also found this to be the case when I was attending in the past, in New York, as a member of the audience. Even most recently, at the 2014 conference in New York, where I spoke as a member of the panel discussing ethical concerns in ERISA litigation, I took a great deal away from the other presentations I attended, including the always interesting judicial panels, in which sitting judges discuss litigation and ERISA topics that have caught their attention.
In April, ACI will hold its 9th National Forum on ERISA litigation in Chicago, where I will be speaking, along with three well-known ERISA litigators, on current topics in benefit litigation. If you are interested in attending, ACI offers a discount to attendees who are invited by the speakers, and I would like to make that offer available to all of you who do me the good favor of reading my posts. If you would like to take advantage of that offer, all you need to do is contact ACI’s Joe Gallagher at 212-352-3220 ext. 5511, before January 30th, and mention my name.
How Do You Win an ERISA Estoppel Claim in the First Circuit?
I wanted to take advantage of the cold, dark, peaceful days of mid-January (do New Englanders still grow up reading Ethan Frome, with its perfect depiction of a classic, pre-global warming New England winter?) to talk briefly about an important First Circuit decision that slid somewhat under the radar when it was issued just before commencement of the holiday frenzy.
In Guerra-Delgado v. Popular, Inc., issued December 18th, the First Circuit continued its unwillingness to actually adopt estoppel claims in the context of ERISA as viable causes of action, a topic I discussed in detail here. The Court continued, in Guerra-Delgado, its tradition of deciding such claims by finding that, if such a claim could hypothetically exist, the plaintiff in the case before it had failed to make out its elements, a tradition I previously attributed to a desire to wait for a case that truly calls for adoption of the cause of action before acknowledging its existence. The Court, though, gave its clearest description yet of just what such a claim can and should look like; in essence, it described what the case will look like in the future that will finally get the First Circuit to formally acknowledge such a cause of action.
The Court explained that an equitable estoppel claim can be based on statements extrinsic to the plan documents where they concern an ambiguous term in the plan, but not otherwise. Thus, the first hurdle for proving an estoppel claim in the First Circuit – if you are lucky enough to be the lawyer or participant in the case where the Court finally agrees that such a claim exists under the law – is to demonstrate that the plan is ambiguous with regard to a provision related to the extrinsic statement in question. The Court declared (I don’t think we can say the Court “held,” since the Court effectively decided only a hypothetical, as it did not acknowledge the existence of such a claim) that ambiguity exists for these purposes “if the ‘terms are inconsistent on their face’ or the language ‘can support reasonable differences of opinion as to [its] meaning.’” The Court then proceeded to find that neither of these were true with regard to the plan terms at issue in the case before it.
And why should this be the rule (if and when the First Circuit finally approves of such a claim)? The Court gave a cogent explanation:
representations that interpret rather than modify the plan may provide “a narrow window for estoppel recovery.” Law, 956 F.2d at 370. We have observed that “a plan beneficiary might reasonably rely on an informal statement interpreting an ambiguous plan provision; if the provision is clear, however, an informal statement in conflict with it is in effect purporting to modify the plan term, rendering any reliance on it inherently unreasonable.” Livick, 524 F.3d at 31. We have explained that “[t]his is why courts which do recognize ERISA-estoppel do so only when the plan terms are ambiguous.” Id.
Even though it slipped in under the radar, Guerra-Delgado is not a case to be ignored if you are litigating an ERISA estoppel claim in the district courts of the First Circuit. It nicely ties together years of decisions in this circuit related to this topic, at both the appellate and district court levels, that are not always inherently consistent with one another, and gives you the road map for winning such a claim.
What Does Spano v. Boeing Foretell About the Future of Excessive Fee Litigation (and about the Future Ruling in Tibble As Well)?
Tom Clark, who writes the excellent Fiduciary Matters Blog, gave me either a late Christmas or an early New Year's present when he forwarded me, last week, the district court's December 30th decision in Spano v. Boeing, which addressed numerous issues related to excessive fee litigation but, in particular, discussed the relationship of ERISA's six year statute of limitations to those types of claims. Tom has now done both you and me an additional favor in this regard, writing up an excellent post summarizing the decision, sparing me the ordeal of writing my own synopsis and you the time consuming - but rewarding - act of reading the opinion itself. You can find Tom's summary and analysis here.
From my perspective, the most interesting aspects of the decision relate to the impact on the theory of liability and on the defendants' theories of the plaintiffs' precision, at this point, in presenting their case. Tom references the same idea in his post, but I will discuss it in more detail here. For years, one thing that has jumped out from many of the district court and appeals court decisions that have run in favor of defendant fiduciaries and plan vendors has been the extent to which the plaintiffs' allegations and theories were of the blunderbuss variety, in which they broadly alleged conflicts of interest and the existence of both high fees and undisclosed revenue sharing. In many of those cases, the plaintiffs essentially never boiled their claims down to narrow, specific allegations (at the motion to dismiss stage) or evidence backed theories (at the summary judgment stage) supporting the existence of a particular fiduciary breach. As a result, the plaintiffs' theories often had holes large enough to drive a truck through, or, at a minimum, the statute of limitations or failure to prove imprudent conduct or whatever other theory was being pressed by the defendants. In many of those decisions, it was clear that a more narrowly and precisely tailored theory of fiduciary breach could have avoided the defenses raised by the plan fiduciaries, sponsors and vendors, forcing, at a minimum, a trial to resolve the claims (and thus likely a settlement of some nature, given the amounts at stake in many of the cases and corporate America's risk adverse nature and resulting preference for avoiding trials). I could walk you through many of those decisions and show you exactly how a more properly and precisely pled theory of fiduciary breach could have survived the motion to dismiss or for summary judgment that instead sunk the case.
Here, though, in Spano, you see a much more focused theory, which is not based simply on the premise that the fiduciaries had broadly erred by retaining and never dispensing with high cost funds, and did not essentially allege simply that certain types of investment or operational decisions are essentially wrong per se. Instead, what you see is a narrow focus on specific decisions and activities by which the fiduciary duty was breached, forcing the defendants - and in turn the Court - to address not whether the type of conduct in general violates fiduciary norms, but instead whether the particular fiduciaries acted imprudently under the specific circumstances that confronted them; that is a much harder claim to get tossed out by means of motion practice, and the Spano decision reflects that.
This is telling, in many ways, for the future, as the plaintiffs' bar gets better and better at framing fiduciary breach claims. As they get better at identifying, isolating and targeting specific alleged misconduct, their win rate is going to go up, and it won't be as common as it has been for prominent appellate rulings or major trial court rulings to go against them.
One other aspect of Spano that is worth highlighting is the Court's detailed treatment of ERISA's six year statute of limitations, given that some of the funds at issue where first selected more than six years before suit was filed, leading the defendants to seek to bar many of the claims related to those funds on the basis that they were time barred. This is, of course, essentially the issue pending before the Supreme Court in Tibble at the moment, and the Spano Court addressed Tibble and the Supreme Court history of that case in reaching its own determination on the statute of limitations issues. Essentially, the Court concluded that it was not enough to defeat the fiduciary breach claims that the original decisions to offer the funds in question occurred more than six years before suit was filed, so long as the plaintiffs could set forth an actionable fiduciary breach that took place within the six years before suit was filed that concerned the funds, above and beyond simply the preceding, and time barred, decision to offer the funds in the first place. Consistent with the theme of this post, the Court found that the plaintiffs had done so by showing, on the law and the facts, how the defendants had committed fiduciary breaches that post-dated the decision to offer the funds in question and within the relevant six year period; once again, the plaintiffs avoided barriers to recovery that had sunk earlier plaintiffs by focusing on the precise facts needed to keep their claims alive, rather than simply making broad and often un-nuanced allegations that could more easily be found to be time barred. And that, incidentally, is exactly what I think the Supreme Court will do in Tibble, finding that, first, the six year statute of limitations does not forever bar claims if the initial offering of the investment option, or selection of it, occurred more than six years before suit was filed, and, second, that instead the six year period is satisfied in those instances where the plaintiff can show a legally actionable breach within the six year period that is independent of the original decision to offer the investment option.
What's the Difference Between Public Pensions and Union Pensions?
In the ways that matter right now, not that much. Here is a more detailed look, by focusing on certain union pension plans, at the move towards cutting benefits in multiemployer pension plans that I talked about in my last post. It’s interesting for the details it provides on these particular circumstances, but it is also noteworthy for a few broader points it brings out. First, note the high return on investment that was assumed for purposes of one of the funds in question becoming solvent. This mirrors a problem that has come to light over the past few years with public pensions: way overly aggressive assumptions with regard to returns as a basis for projecting future solvency. Second, note the demographic problem of too few workers and solvent employers supporting too many retirees: that’s a death spiral problem for any pension fund that doesn’t already have the money in place to cover future liabilities and instead must rely on incoming cash flow to meet those obligations. Third, note the fact-based skepticism about a federal political solution being reached, mirroring the extent to which the public pension crisis is linked to a long term lack of political will, as I noted in my last post. And finally, fourth, note the same key dynamic that is at play in the public pension crisis: do you invest public funds to protect benefits or cut the benefits?
Coming Soon to a Private Pension Near You: Benefit Cuts?
So, I have discussed before – many times, actually, in the wake of Detroit and similar experiences with municipal finances across the country – that public pensions pose a moral, political and economic dilemma. They are underfunded (even many of the ones that aren’t in the news) and something, someday, is going to have to give on them. Either benefits will be reduced, even for those already retired, or the taxpayer, in some form or another, is going to have to bail out those pension funds. With regard to public pensions, it is as much a question of political will – and expediency for politicians – as it is a question of anything else (as I discussed here, nothing about recent developments makes me believe that the political arena really has the gumption to solve this and is instead likely to leave it to lawyers and courts to sort out), but this is not a new development at all. Leaving all names out of the story – including even of the state involved – I can recall how, regularly, right before a particular state held its gubernatorial elections, state employee unions would suddenly conclude negotiations with the existing administration over their new contracts, and would receive generous boosts to salary and benefits. This occurred decades ago -I didn’t think it was a coincidence then, and I don’t think it’s a coincidence now. Multiply that by a thousand fold when you think about the current public pensions in crisis (and the many more to come) and you understand both how we got in this mess and how unlikely it is that political entities will deal with the problem proactively, rather than wait until things are too bad to ignore, such as occurred with regard to Detroit.
Well, now it looks more and more like the same calculus is coming into play with troubled private pensions as well, with Congress looking at potentially allowing benefit cuts for retirees under troubled multi-employer pensions. Once again, you have underfunded pension plans and the question becoming whether to cut benefits or rely on the taxpayer to fix the problem, and I probably don’t have to tell you which approach seems to have the upper hand right now (if you can’t guess, read this article). There has been much moaning over the years about the death of the American pension, and this is just the latest act in that long running drama.