Baseball, Hot Dogs and Class Action Lawyers
One of my favorite kid friendly, safe for work jokes:
Q: Moose walks into a bar. What’s he say?
If you like that one, how about this one:
Q:Woman buys an expensive seat at the ballpark. What’s she say?
A: Get me a class action lawyer!
And if you like that one, you will like my pal Randy Maniloff’s (even if he did blow me off for dinner the last time I was in Philadelphia) Op-Ed piece in the Wall Street Journal this past weekend on the Oakland A’s ticket holder and her lawyer who have filed a class action suit against Major League Baseball alleging that protective netting should be installed the length of the baseline seating in ball parks. Now, I am not one to make fun of lawsuits by referencing the old saw about the woman who was burnt by McDonald’s coffee and received a large jury verdict afterwards, which tort reform people always try to use to support their claims that we need to crack down on plaintiffs and their lawyers; as I have discussed before, if you look behind the self-serving rhetoric about that case, you find that it doesn’t actually demonstrate a misuse of the court system. But Randy makes very good points about the frivolity of this particular class action suit, ranging from the fact that the plaintiff has elected expensive seats over cheaper seats where there is no possible risk of injury from foul balls, rendering her complaints self-serving (to say the least), to the fact that the case probably cannot survive the types of filtering events (such as motions to dismiss, class certification standards, etc.) that serve to weed out non-meritorious class actions.
But what is most interesting about Randy’s Op-Ed is that he notes the real, fundamental problem with the proposed class action, which is that the law has long applied a sort of caveat emptor approach to the risks faced by baseball fans of being hit by foul balls and broken bats: as Randy discusses, the law pretty much says such fans are not entitled to sue over such harms, on the thesis that they assume the risk by going to the ballpark. This has its own interesting subtext, having to do with the extent to which baseball is woven into the national fabric and the extent to which the development of the common law reflects that fact. But that is a story for another day, and one best explored by a more skeptical writer than me.
The more telling and immediate issue is a point that underlies Randy’s piece, which is that the law maintains such principles disfavoring claims of injuries by fans. One has to ask, though, whether today such a legal approach should continue, as team owners take every step open to them to increase profits, including – such as at Fenway Park – adding seats that are ever closer to the field (and which thus increase the risk of injury, by placing paying customers ever closer to the action, even though – unlike the twenty something world-class athletes they are now only a few feet away from on the field - they certainly lack the reactions to avoid batted balls and the like). At what point does the quest for profits by increasing the risks to customers require revisiting any rules that make it difficult for an injured baseball fan to sue if seriously hurt by a batted ball? If – taking this example from cases I have tried – a company makes a product that is more dangerous than necessary so that it can make more money from its sale, the law doesn’t bar an injured customer from asking for recompense. Should baseball team owners who have increased their customers’ risks in the pursuit of ever higher revenue be immune from answering for it in court in the same way? I don’t profess to have studied the question enough to know the answer, but I have certainly studied it enough to ask the question.
Do You "Work For" Uber?
You know, the Uber decision out of the California Labor Commission is fascinating, even if it isn’t directly on point with the subject of this blog. It immediately brought me back to the first appeal brief I ever wrote, as a young associate, which concerned, at its heart, the question of whether the plaintiff was an employee or instead an independent contractor. In Massachusetts, at least at that time, there was significant authority laid out in published cases as to the test for determining whether someone was an independent contractor, but essentially no such statements in the published decisions defining what makes someone an employee. I wrote the brief from the perspective of whether the plaintiff in that case qualified as an independent contractor under the standards laid out in the case law, demonstrated that the plaintiff did not satisfy those standards and thus was not an independent contractor, and that the plaintiff was therefore, by definition, an employee. What stands out to me, though, and creates my lens for viewing the Uber decision, is that the partner I turned the brief into read it once and then immediately said to me that I had shown the plaintiff was not an independent contractor, but that he did not see why that made the plaintiff an employee. I can remember explaining to him that under Massachusetts law, and really anywhere in the country, someone has to be one or the other, either an employee or an independent contractor, and that the case law analyzed the issue in that way: if the relevant legal test does not demonstrate independent contractor status, than the person in question is by definition an employee.
It has never struck me that Uber drivers and similar “workers,” for lack of a better word, fit comfortably within those traditional understandings, that one is either an independent contractor, as we have traditionally understood the phrase, or an employee. They are clearly entitled to more protections and benefits than the society at large and employment law in general extend to independent contractors, as they don’t really fit the traditional understanding of that term, no matter the clever machinations of Silicon Valley lawyers, but it is not clear that they qualify as employees under any traditional sense of the word either. There may, perhaps, have to be evolutionary movement in the case law that will allow the legal structure to incorporate these types of sharing economy worker bees into the system somewhere in a middle ground, and there may have to likewise be a similar movement in statutory provisions that control access to and administration of 401(k) plans, disability benefits and the like for these purposes. But as this article points out – featuring Boston lawyer Shannon Liss-Riordan (Bostonians always want to be the first ones to fire the first shot for liberty, in any context, see, e.g., the Battle for Bunker Hill, which was actually fought on Breed’s Hill, but why ruin a good story) – the first steps in this process will be class action and other litigation, and I just wonder whether that is too blunt an instrument for this process. Would we, and the workers of the sharing economy, be better served if state legislatures and Congress tackled the problem of their job classification and their rights under employment law in the type of thoughtful way that created ERISA forty years ago (if you think I am kidding with that last characterization, I am not; take a look at Professor Jim Wooten’s work on the Congressional development of ERISA, part of which you can find here)?
Initial Thoughts on the Supreme Court's Opinion in Tibble v. Edison
So what does it mean if you are an ERISA litigator who writes a blog and you are too busy litigating to write a post on Tibble v. Edison (even though you have published a widely read article on the case) right after the Supreme Court issues its opinion on the case? I don’t know, but it does remind me of this old joke:
Q: What do you call one lawyer in town? A: Unemployed.
Q: What do you call two lawyers in town? A: Overworked.
For now, until I have time to sit down and write a comprehensive post on the decision, I will content myself with passing along articles of interest on the decision, along with some general comments of my own. A good place to start is with the article in today’s Wall Street Journal, and with this piece in the Washington Post. This piece in Forbes caught my eye as it grabs hold of the most important aspect of the decision, which is that the Court found that fiduciaries have an on-going duty to monitor and review investments, but without outlining the parameters of that duty. Frankly, I wouldn’t have expected the Court to do so, as that is a very fact specific question and the exact parameters of that duty – once you accept that it exists – can vary from one set of circumstances to another. Thus, the Supreme Court has found that such a duty exists and that a fiduciary is not off the hook forever simply because the original investment decisions were prudent when first made, but left it for future litigation to establish what that duty looks like in different circumstances. This will continue to put ERISA litigators, quite happily, within the second category of lawyers in that old joke.
Should Company Officers Run Retirement and Other Benefit Plans?
This is great – I loved the idea of this Bloomberg BNA webinar the minute it popped up in my in-box, just from the title: “Just Say No: Why Directors Should Avoid Duties That Will Subject Them to ERISA.” I have written extensively on the idea of accidental fiduciaries, and the manner in which corporate officers find themselves dragged, unwittingly, into ERISA class actions because they played some role in the administration of a benefit plan, rendering them, at least arguably, deemed or functional fiduciaries for purposes of ERISA. Sometimes, they actually have played enough of an operational role to truly be proper defendants in an action; in others, they have only enough connection – such as having appointed the members of a committee that runs the plan – to be forced to litigate the question of whether they actually qualify as fiduciaries; and in other cases, their roles lie somewhere in between.
But there is also the question of the extent to which directors should deliberately place themselves in harms way by being the overlord of the company’s benefit plans, rather than leaving that in the hand of a lower level employee. I have represented officers who have taken on that role, and I have also sued officers who have taken on that role, and I have to say that, consistently, having a director actually be a plan fiduciary, intentionally, seldom appears, in the hindsight of litigation, to have been the best idea. Moreover, it has often appeared to be the case that a company officer or director took on the role because of its seeming importance but without any real analysis as to whether or not it made sense to take on that role. In many instances, there was almost a default, knee jerk reflex that something that important should be on a senior officer’s radar screen, but at the same time, that same officer did not really have the time or expertise to focus on it, leaving the officer exposed to potential liability if a problem arose with the plan and, further, leaving the plan open to more suits based on poor oversight than would have been the case if the oversight had been assigned to a lower level executive for whom the assignment was more of a central focus and possibly even one that could raise his or her profile.
In the end, litigation teaches that it isn’t so much the question of whether directors should ever be a plan fiduciary – accidentally or deliberately – that is important, but rather the act of thinking logically in advance about who best in a company should have what roles with regard to a plan. Doing the latter not only protects against unanticipated litigation exposures, but also decreases the likelihood of litigation by increasing the probability that the plan will be in the hands of the executives best placed to run it well.
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.
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.
An Overview of 401(k) Litigation, Courtesy of Chris Carosa's Excellent Interview with Jerry Schlichter
Chris Carosa of Fiduciary News has a tremendous interview with Jerry Schlichter, who has carved out an important niche litigating class action cases against 401(k) plans. Schlichter has litigated nearly all of the key excessive fee cases of the past few years, and currently has one pending before the Supreme Court. I discussed the case he currently has pending before the Supreme Court, Tibble v. Edison, in an article way back after it was decided by the trial court, where I contrasted the trial court’s analysis of the excessive fee issues to that provided around the same time by the Seventh Circuit. You can find that article here.
Chris’ interview with Schlichter is important and valuable reading. The opposite of a puff piece or personality profile, it contains some real thought provoking comments on 401(k) plans and the risks of fiduciary liability, and I highly recommend reading it.
Interestingly, I am speaking next week at ACI’s ERISA Litigation Conference in New York on conflicts of interest and other ethical issues arising with regard to ERISA litigation. Chris, in his interview with Schlichter, goes right to the heart of the question, when he turns the conversation to the “obvious and serious conflicts-of-interest” that can exist in 401(k) plans given their structure, compensation schemes, and the sometimes contradictory interests of fiduciaries, participants and service providers. In the interview, Schlichter provides a nice window for approaching the issue, when he presents three key rules that he believes fiduciaries should follow, which are:
1) Putting participants’ interests first – this should be the beacon that fiduciaries follow; 2) Developing a fully informed understanding of industry practices and reasonableness of service providers’ fees – in other words becoming a knowledgeable industry expert; and, 3) Avoiding self-dealing – you simply cannot benefit yourself in any way.
A great deal of conflicts of interest in this area of the law can be avoided simply by keeping those three principles first and foremost. Indeed, many of the conflict of interest issues that I will be discussing next week on a granular level are violations, on a macro level, of one or the other of those three ideas.
Santomenno v. John Hancock: Does It Matter That the 401(k) Service Provider Is Not a Fiduciary?
I wanted to comment at least briefly, or more accurately thematically, on the Third Circuit’s decision last week in Santomenno v. John Hancock, in which the Court held that John Hancock’s role as an advisor and service provider for a company 401(k) plan, by which it helped select fund options and administer participant investments, did not render it a functional fiduciary under ERISA for purposes of an excessive fee claim. It’s a well-reasoned and interesting opinion on a number of fronts, but what struck me as important about it relates more to broader issues than to the narrow details on which the decision itself turns. Personally, I think the 30 page decision itself does a wonderful job of laying out the issues and explaining them, something which is not always true of appellate decisions concerning the technicalities and complexities of ERISA class action cases, making the source document here the best place to turn for a full understanding of the details of the decision. This is not always the case, as some decisions of this ilk are simply too dense or otherwise difficult to penetrate to go first to the opinion itself, rather than to secondary sources – such as blogs and client alerts – for a full understanding of the case.
If you want to skip reading the case itself and instead go to commentary on it that sums up the central facts, Thomas Clark, who has staked out a firm position in the blogging world as one of the more scholarly analysts of fiduciary duty litigation, recommends some summaries in his post on the case. His recommendation is good enough for me in that regard, so I would refer you to his post and the summaries about the opinion for which he provides links.
For me, I was struck, as I noted, by some thematic, big picture aspects of the decision, and I wanted to discuss three of them in a post. First, in speeches, articles, presentations and even in small group meetings with clients, I often make the point that service providers to 401(k) plans are very good at structuring their contracts and relationships to avoid incurring fiduciary status. Most recently, in providing an update on ERISA litigation to an ASPPA conference, I discussed this point in the context of explaining why it is such a smart strategy: because it is simply not possible to predict the next theories of ERISA liability that the class action bar will pursue (did anyone foresee the rise of church plan litigation? I didn’t think so), the best strategy open to plan service providers is to avoid assuming fiduciary status at all, thus defanging new theories of liability without even knowing what they will be. The opinion in Santomenno provides a very detailed explanation of the contractual structure by which John Hancock avoids fiduciary status despite its intimate involvement with the plan’s assets and investment options, and as such it does a beautiful job of making my point; the Court demonstrates exactly the subtle, intelligent, thoughtful and carefully planned structure that insulates the service provider from incurring fiduciary status.
Second, I have long been a critic of a habit some courts have of, in a nutshell, jumping the gun and deciding complex ERISA cases prematurely, without first allowing the facts to develop to a sufficient level. I understand the impulse – ERISA litigation, and class action litigation in general, can be very expensive as well as disruptive to plan sponsors, and courts can often be sympathetic to the desire to avoid unnecessary litigation in circumstances where the likely outcome of the case can be anticipated at an early stage. I recently listened to one well-regarded federal judge address a law school class after a motion session, when he commented – in a different context entirely – on the fact that we have created, in the federal court system, a Maserati, a beautiful machine but one that most people can’t afford. Early resolution, such as at the motion to dismiss stage, of lawsuits that are unlikely to end up any differently later on is an antidote to this problem.
That said, however, this mindset can often lead to cases being decided too early, with regard to the question of whether a court has enough information to really get the nuances right. All too often, judicial opinions in ERISA cases issued at the motion to dismiss stage – or on appeal from an order granting a motion to dismiss – end up reading more like a law review article than a judicial decision because, by being decided without much factual development having yet occurred, they end up being based more on hypothesis and assumptions about the world of service providers, investments, fees and the like than on the actual realities of those worlds. This is a problem with a simple solution, which is for courts to avoid making significant doctrinal rulings without first having a well-developed factual record. You can see this, but from the good side, in Santomenno, in which the Court had access to significant factual information, including the relevant contractual documents, and fashioned a ruling around – and dependent upon – those facts. It makes for a far more compelling and weighty decision than would otherwise be the case. It is for me, in any event, an approach that makes me give far more value to the Court’s reasoning and makes me far more likely to be persuaded by the Court’s reasoning.
Third, the case illustrates, and the Court even alludes to briefly, a point that I think is very important and which I often raise in a variety of contexts involving ERISA litigation. This is the question of whether systemically it matters whether John Hancock or a similarly situated service provider is or is not a fiduciary, and the answer is that, generally speaking, it does not matter. Sure, it may matter to the participants and their lawyers who are looking for a deep pocket, and it certainly may matter to the business model of the service provider, but it shouldn’t actually matter to the ERISA regulatory and enforcement regime itself. As I have written many times, including too often to count in this blog, ERISA is essentially a private attorney general regime, in which the idea is that private litigation and even just the threat of it enforces proper behavior within the relevant industry. That occurs here regardless of the fact that John Hancock and other such vendors are not considered, in this context, to be fiduciaries who can be held liable, as a breach of fiduciary duty, if the expenses and fees in a 401(k) plan are too high. And why is that? Because the system outlined in Santomenno is one in which the vendors may not be fiduciaries, but they are obligated to provide sufficient information and control to the actual fiduciaries – those appointed by the plan sponsor to run the plan – to allow the actual fiduciaries to make informed decisions about the investment options and the fees. Importantly, the system as viewed and approved of by the Santomenno court is one in which the actual plan fiduciaries bear financial liability if they don’t use the power granted to them by the vendor to police fees and expenses, thereby resulting in excessively high expenses. In that circumstance, the named fiduciary becomes liable for that problem. As a result, even without the service provider being deemed a fiduciary, the system still captures the risks of excessive fees and requires action – only by the plan sponsor and its appointees rather than by service providers such as John Hancock – to ensure that the problem is either avoided or remedied.
Tatum v. RJR Pension Investment Committee: What it Teaches About Fiduciary Obligations
Somehow, RJR Nabisco has always been fascinating, from beginning to now. There must be something about combining tobacco and Oreos that gets the imagination flowing; maybe its the combination of the country’s most regulated consumer product with the wonders of possibly the world’s favorite cookie. Heck, its birth even birthed a book and then, in turn, a movie starring James Garner, whose mannerisms, in the guise of Jim Rockford, are imbedded to at least a slight degree in the personality of every male my age. Ever watch a late forties/early fiftyish lawyer try a case in front of a jury? Watch closely, and you will see at least a little Rockford in the persona.
Now, in the guise of a Fourth Circuit decision over breaches of fiduciary duty involving company stock funds, RJR Nabisco has become a touchstone for ERISA litigators as well. There are a number of takeaways and points of interest in the decision, which you can find here, and the decision has generated no small number of thoughtful commentaries over the past few weeks, some of which you can find here, here, here and here. Without repeating the yeoman’s work that others have already done summing up the case, I am going to run a couple of posts with my thoughts on two key aspects of the case.
Today, I wanted to address the question of the finding of a breach of fiduciary obligations, and I will, lord wiling and the creek don’t rise, follow that up with a post on the question of proving loss as a result of the breach. These are two interrelated issues in fiduciary duty litigation, and Tatum v. RJR has some interesting things to say, and to teach, about both.
Initially, as everyone knows, you cannot have a breach of fiduciary duty recovery without a breach of fiduciary duty. Here, the Court found a breach of fiduciary duty on the basis of the defendants’ quick and informal decision concerning whether to continue to offer company stock that was based as much as anything on myths and legends about holding company stock in a plan as it was on any type of a reasoned approach to the question. Concerned about the possible liability exposure under ERISA for holding an undiversified single company stock fund in a plan, a working group decided to eliminate the fund without actual investigation into the legal, factual, potential liability or other aspects of holding the fund. Further, they did so in a short meeting, without ever gathering any of the detailed information that would be relevant to making such a determination.
There is a real and important lesson here with regard to the manner of making any decisions with regard to plan investment options, and an additional one that is of particular significance with regard to a decision to eliminate an investment option, which was the event in RJR Nabisco that triggered potential liability. The general lesson is that the days of fly by the seat of your pants management of plan investment options are over (if they ever existed; people may have been doing it that way, but it was probably never legally appropriate to do so). Instead, a failure to properly investigate investment options, including using outside expertise to do so, has reached the point where it can essentially be considered a per se breach of fiduciary duty. It may not have that posture in the law, in the sense of pleading and proving it simply establishing the existence of a breach, but that fact pattern, at this point in time (and not simply because of the holding in RJR Nabisco, but because of a number of cases and legal developments leading up to the time of that ruling), will consistently lead to a finding of a breach.
The more specific lesson to think carefully about here is something very interesting, and to some extent ironic. The working group felt obliged to eliminate the investment option because of questions related to the liability issues of holding a non-diversified single company stock fund, but that is not the same question as whether it was in the best interests of the plan participants to hold, or to instead eliminate, that fund. It is the latter question, and not the former question which is primarily one that concerns the risks to the plan sponsor and those charged with running the plan, that is supposed to be at the heart of the decision making process when it comes to these types of issues. Fiduciaries must run a plan – subject to many limitations on that general principal – in the best interest of the plan participants, without regard to their own interests. That, in all areas of the law, is the basic premise and obligation of being a fiduciary. Here, the defendants’ fiduciary breach occurred because they failed to do that: they did not investigate or analyze the issue from the perspective of what was best for the participants but instead from the perspective of the risks to the plan sponsor and its designees (i.e., the fiduciaries).
When thought about that way, the irony becomes apparent. By being overly concerned about the liability risks of keeping the investment option, the defendants created liability exposure by getting rid of the investment option.
Changing Firms, and a Brief Note on the Right of Service Providers to Make a Profit
So, some of you may have noticed a change on the masthead at the top of this blog, which notes that I am now at the Wagner Law Group , in its Boston office. It has been a pleasure litigating ERISA and business disputes for the past nearly quarter century at the McCormack Firm, but every now and then an old dog needs to do a new trick. More seriously, for the past several years, I have been increasingly called on by clients to assist with DOL investigations and to handle plan deficiencies and other problems, all outside of the litigation context. The Wagner Law Group, with its deep bench and broad expertise in all areas of ERISA governed benefit plans, gives me the opportunity to provide those services more extensively to my clients, while continuing my litigation practice, which is heavily oriented towards breach of fiduciary duty and other ERISA disputes. So not only was the timing right, but so is the fit.
If you want more information on my changing firms, you can find the press release on my joining the Wagner Law Firm here. When I read it myself for the first time, I immediately thought of a line a U.S. Senator I once heard speak liked to use immediately after being glowingly introduced, which was: “thanks for the kind introduction, which my father would have appreciated and my mother would have believed.”
With that out of the way, I wanted to turn to one brief, substantive discussion. Eric Berkman has a fine article out in Massachusetts Lawyers Weekly, in which he quotes me on the First Circuit’s decision in Merriman v. Unum Life, which rejected claims that a retained asset account structure for paying life insurance benefits under an ERISA governed plan violated ERISA. In one of my quotes, I explained that:
"The plaintiffs' bar is looking for ways defendants are making money or making these services profitable and calling them prohibited transactions or breaches of fiduciary duty," Rosenberg said. "But this case, which falls in line with cases in other contexts, is saying that as long as the plan beneficiary is getting everything he or she is supposed to be getting under the plan, it's OK that the insurance company or other service provider is also making a profit."
While there are a lot of technical issues to Merriman, I think this is the important takeaway if one is looking at the forest rather than the trees. Across the benefit industry, service providers have to turn a profit; if they don’t, we will quickly not have a benefit industry. The holdings in cases like Merriman, which found the payment structure appropriate even though it could create some additional profit for the insurer, drive home the point that, so long as there is no prohibited transaction or misuse of plan assets or other illegal behavior, its okay for service providers and insurers to turn a profit.
Just Finished Speaking to ASPPA on ERISA Litigation, Soon to Speak at ACI's National ERISA Litigation Forum
So I had a great deal of fun speaking on current events in ERISA litigation to the ASPPA regional conference here in Boston this past Thursday, and my great thanks both to the organizers who invited me and everyone who attended. I am especially grateful to those in the audience, more knowledgeable about the wizarding world of Harry Potter than I, who did not point out that, in trying to compare a malicious (but hypothetical) plan sponsor to an evil but all powerful wizard, I mixed up Dumbledore and Voldemort. Oh well – much better than mixing up the prohibited transaction rules, I suppose.
One of the more interesting discussions that came up during my presentation had to do with recent case law revolving around what are, and what are not, plan assets, and how that issue influences the outcomes of cases (including ones I have litigated over the years). It is worth noting that the First Circuit just issued a very important decision validating certain employee life insurance benefit structures on the basis of just that consideration, in Merrimon v. Unum Life. One of the points I touched on in my talk is that the question of when funds are and are not plan assets for purposes of ERISA is almost certain to be a central aspect of both future litigation and future efforts by plan service providers to insulate themselves from fiduciary liability, given very recent developments in the case law. The new First Circuit decision, Merrimon v. Unum Life, is very noteworthy in this regard, as one can see in it how years of litigation and the appropriateness of a relatively common form of benefit payment structure can come down to, at root, the very basic question of what constitutes plan assets for purposes of ERISA litigation.
With that said, I wanted to turn to another speaking engagement on my calendar, which is the American Conference Institute’s 8th National Forum on ERISA Litigation, on October 27-28 in New York. I will be speaking on “Ethical Issues in ERISA Litigation,” including on one of my favorite issues, the fiduciary exception to the attorney-client privilege, along with Mirick O’Connell’s Joseph Hamilton. The reason I wanted to mention it today is that, through July 24th, a special rate is available for anyone who registers, mentioning my name and this blog. To take advantage of the special rate, you should contact Mr. Joseph Gallagher at the American Conference Institute, at 212-352-3220, extension 5511.
I hate to sound like an infomercial, but if you are planning to attend anyway (or weren’t aware of the conference before but now are interested in attending), it would be silly of me not to pass along this information.
Why Commonality is Relatively Easy to Prove in ERISA Class Actions
One should never underestimate the fundamental role that procedural and related tactical issues play in a case, and how they impact the very question of whether a plaintiff will ever be able to have a judge or jury rule on the merits of a case. Procedural barriers to prosecuting particular claims can be the end of a case, without anyone ever hearing the merits of the dispute, unless a plaintiff can hurdle them. In a sense, this phenomenon means that a plaintiff often has to prove two parts, broadly speaking, of a case to win: first the procedural and tactical niceties needed to even get the case in front of a fact finder, and then the actual merits. In what is sort of a mirror image, a defendant can prevail in a case simply by winning either one of those parts of the case.
This phenomenon means that there are procedural opportunities for a defendant to prevail without ever proving the merits of the defendant’s case, but, interestingly enough, this does not exist in reverse: there really is no such thing as a procedural advantage that might allow a plaintiff to prevail without ever proving the merits of the case (other than an outright default by a defendant, but that really doesn’t happen unless the defendant is judgment proof which, for a plaintiff, is the same thing as losing).
Nowhere is this phenomenon clearer than in class action litigation, in which lawyers and courts have taken to focusing on the procedural requirements for forming a class, in ways that to some extent tend to devalue, by comparison, the merits (or lack thereof, as the case may be) of what the putative class representatives and the class itself may have to say. This approach to class action litigation essentially gives pride of place to the propriety of forming a class, over the merits of the case. If the plaintiffs cannot get past this procedural hurdle, they will never get the merits of their case heard; simultaneously, if defendants can ensure that plaintiffs don’t get past that hurdle, then they effectively win without anyone ever getting to the merits of the claims.
Commonality – which is the requirement that the class members have some central part of their claims against the defendant in common – is the central focus of this aspect of class action litigation, but it has a less than great track record in precluding certification of classes in ERISA cases. There is a clear and interesting reason for this, but it is best approached by the back door, by first explaining how defendants faced with ERISA class actions attack commonality, and seek to use the requirement of commonality to preclude certification of a class and thereby end class action litigation before the merits of the action are reached.
As explained in this excellent blog post, there are a number of ways to attack commonality in an ERISA class action, by focusing on what may be different among the members of the proposed class. I like the article a great deal as a handy checklist for where to start with regard to investigating and challenging the existence of commonality – and by extension the propriety of forming a class – in ERISA litigation.
However, in the ERISA context, one should not be fooled into overconfidence by these types of lists or, as well, by the fact that this procedural tactic has been very effective in various types of class action cases. Commonality is simply not that difficult to prove in ERISA litigation, in comparison to other types of proposed class actions, such as wage cases. This is because, in general, breaches of fiduciary duty related to an ERISA plan affect all participants and beneficiaries in the same manner, which renders the ERISA violation at issue common to all members of a proposed class. The only real trick in this regard is for the plaintiffs to make sure they account for any aspects of the breach in question that might render only some participants (for instance, those in the plan during a certain time period) and not others subject to the violation, and to then draw appropriate lines around the makeup of the class so as to laser out any plan participants who were not affected and harmed by the particular conduct in question. Do this, and commonality exists.
The First Circuit's Wary Relationship to the Moench Presumption
By the way, speaking of Fifth Third Bancorp, I take exception at the assertion (see here, for instance) that every circuit to consider the issue has effectively adopted the Moench presumption, although with some dispute over how and when to apply it. The First Circuit, which tends to favor fact specific resolutions of complex ERISA disputes over sweeping doctrinal approaches to resolving them, rejected a variation on the presumption in 2009 in Bunch v. W.R.Grace. The Court explained:
Appellants seek to induce us to reject State Street's actions by having us apply a presumption of prudence which is afforded fiduciaries when they decide to retain an employer's stock in falling markets, first articulated in Kuper v. Iovenko, 66 F.3d 1447, 1459 (6th Cir.1995) and Moench, 62 F.3d at 571–72. The presumption favoring retention in a “stock drop” case serves as a shield for a prudent fiduciary. If applied verbatim in a case such as our own, the purpose of the presumption is controverted and the standard transforms into a sword to be used against the prudent fiduciary. This presumption has not been so applied, and we decline to do so here, as it would effectively lead us to judge a fiduciary's actions in hindsight. Although hindsight is 20/20, as we have already stated, that is not the lens by which we view a fiduciary's actions under ERISA. DiFelice, 497 F.3d at 424; Roth, 16 F.3d at 917–18. Rather, given the situation which faced it, based on the facts then known, State Street made an assessment after appropriate and thorough investigation of Grace's condition. Katsaros v. Cody, 744 F.2d 270, 279 (2d Cir.1984). This assessment led it to find that there was a real possibility that this stock could very well become of little value or even worthless to the Plan. It is this prudent assessment, and not a presumption of retention, applicable in another context entirely, which controls the disposition of this case. See also LaLonde v. Textron, Inc., 369 F.3d 1, 6–7 (1st Cir.2004) (expressing hesitance to apply a “hard-and-fast rule” in an ERISA fiduciary duty cases, and instead noting the importance of record development of the facts).
This came five years after the Court refused to accept and apply the Moench presumption in LaLonde v. Textron, where the Court explained:
As an initial matter, we share the parties' concerns about the court's distillation of the breach of fiduciary standard into the more specific decisional principle extracted from Moench, Kuper, and Wright and applied to plaintiffs' pleading. Because the important and complex area of law implicated by plaintiffs' claims is neither mature nor uniform, we believe that we would run a very high risk of error were we to lay down a hard-and-fast rule (or to endorse the district court's rule) based only on the statute's text and history, the sparse pleadings, and the few and discordant judicial decisions discussing the issue we face. Under the circumstances, further record development—and particularly input from those with expertise in the arcane area of the law where ERISA's ESOP provisions intersect with its fiduciary duty requirements—seems to us essential to a reasoned elaboration of that which constitutes a breach of fiduciary duty in this context.
At the end of the day, once the Supreme Court has ruled in Fifth Third Bancorp, these decisions may be rendered little more than a historical oddity and an interesting backdrop to the development of the presumption of prudence in the case law. For now, though, they constitute an interesting footnote to the discussion about how the various circuits have, to date, applied the Moench presumption.
One Judge's Vote on the Likely Outcome of Fifth Third Bancorp
Wow, what a great piece by Rob Hoskins summing up the law throughout the circuits on the Moench presumption, by means of a review of a new decision by the Eastern District of Missouri on the issue. I highly suggest reading at least Rob’s “Moench Presumption for Dummies” if you want to have a solid understanding of the issues raised by the use of the presumption, or the decision itself for more detail. One of the things that is interesting about the decision itself, by the way, is the court’s handling of the pending Supreme Court review of the Moench presumption issues. The Court ruled on the motions pending before it, finding that the Moench “'presumption of prudence' is appropriately applied at the motion to dismiss stage," but noted that:
The Court is cognizant that this issue is currently pending before the United States
Supreme Court. See Fifth Third Bancorp v. Dudenhoeffer, No 12-751, cert. granted December 13, 2013. Consistent with the majority of courts construing the applicability of the presumption, the Court will apply it with respect to the pending Motion. In the event that the Supreme Court determines the presumption is inapplicable in the 12(b)(6) analysis, the Court will entertain a motion to reconsider.
Doesn’t this mean, effectively, that the District Court is making a prediction of where the Supreme Court will end up on this issue? I suspect the judge wouldn’t have ruled right now to the opposite of what the judge believed was likely to be the outcome of the Supreme Court case.
Excessive Fee Litigation Remains a Hot Topic
There’s a nice overview from Bloomberg BNA on plan fee litigation, and its status in the courts at this point in time. The article opens up by setting the stage:
Plan fee litigation had a big year in 2013, with divisive appellate court decisions affecting standards of judicial review, statutes of limitations and functional fiduciary status that may open the door for increased and novel litigation, employee benefits attorneys said during a conference panel presentation.
Its interesting to read the rest of the article, which summarizes the current status of cases such as Tibble and Leimkuehler, and discusses the totally conflicting views of the defense bar and the plaintiffs’ bar over these cases. If there were ever a case of two sides not being able to agree on whether it is day or night, it is the two sides of the bar arguing over the propriety of judicial decisions over ERISA liability, particularly with regard to excessive fee litigation. I thought there was a divide bordering on the ecumenical decades ago, in my earlier life as an insurance coverage litigator (which I still sometimes am, when not busy with ERISA fiduciary problems or other types of litigation) between policyholder and insurer lawyers over oddities like the asbestosis exclusion, the meaning of the words “expected or intended,” or what the words “sudden and accidental” actually mean, but they had nothing on the current divide between the plaintiff and defense bars when it comes to high stakes ERISA litigation (a division I wrote about at length here).
Substantively, though, the best takeaway from the article comes in its last line, in a quote from someone with the Department of Labor, who notes on one particular issue raised by the fee cases that it is “an interesting issue, and I don't think we've heard the last of it.” One can say that across the board about all of the excessive fee litigation, and its spin off of other types of cases all targeting the question of whether plan participants are paying more than they should for plan benefits. Tibble itself is a wonderful example of the extent to which excessive fee litigation is a gift that keeps on giving, of a sort, for everyone from the lawyers involved, to plan participants (in those instances where they either obtain a recovery as part of a class or receive the incidental benefit of having lower plan expenses because sponsors are responding to the threat, real or perceived, of excessive fee litigation), and, yes, commentators. I wrote substantially about Tibble way back at the trial court level, in 2011, and here we still are, these many years later, writing and talking about the further history of that case.
The Fiduciary Exception to the Attorney-Client Privilege: What It Is and Why It Matters
One of the great advantages a Massachusetts ERISA litigator has is that our federal magistrate judges are very good with ERISA issues, which is something that is well illustrated by this decision on the scope of the fiduciary exception to the attorney-client privilege in ERISA litigation. In Kenney v. State Street, the magistrate judge dealt, in a very clean and easily understood manner, with the key issues that come into play under that doctrine, which have to do with its borders: to be exact, what attorney-client communications are subject to disclosure under this exception, and what ones are not. This is a more complicated issue of line drawing than it might appear at first glance because, in essence, you are considering the same course of communications, between the same lawyers and the same plan representatives, dealing with the same general topic (the plan’s operations), sometimes as part of the same in-person meeting, and deciding where the line falls as to the communications that must be produced and those that do not have to be produced.
The takeaway from Kenney on this line drawing is summarized nicely in this blog post by an unidentified Paul Hastings lawyer or two:
First, the attorney-client privilege is available for settlor matters, such as "adopting, amending, or terminating an ERISA plan" because those decisions do not involve ERISA fiduciary functions of managing or administering the plan.
Second, the attorney-client privilege is available to a plan fiduciary who seeks the advice of counsel in response to a threat of litigation by plan beneficiaries (or the government) against the fiduciary.
This is not an issue, by the way, that is just of academic interest, or something for clients and litigators to be concerned about after the fact, when a lawsuit is pending. A few years back there was a major top hat plan case in which some of the key evidence relied upon by the plaintiff consisted of emails and communications between the plan sponsor and its lawyers that were discoverable under these standards: that evidence was very helpful to the plaintiff, and was information that simply should not have been communicated in the manner it was (without, for instance, context and qualification) if it was ever going to see the light of day, rather than being forever cloaked behind the attorney-client privilege. Plans and their outside ERISA lawyers, who on a day to day basis in establishing and running a plan are typically not litigators, need to remember that their communications can end up in a courtroom in later litigation that cannot even be foreseen at the time of the communications in question, and should be careful with regard to the accuracy, context, phrasings and tone of such communications as a result.
The International Paper Settlement and the Continued Vitality of Excessive Fee Claims
One of the first long articles I wrote on ERISA (I had already penned some opuses on patent infringement litigation and insurance coverage disputes) was on excessive fee litigation, and was based, at heart, on the Seventh Circuit’s then recent decision in Hecker v. Deere. Titled “Retreat from the High Water Mark: Breach of Fiduciary Duty Claims Involving Excessive Fees After Tibble v. Edison International,” the article set forth my view that, in Civil War parlance, the decision in Hecker, which was being highly trumpeted by the defense bar at the time as a major victory, was, in fact, little more than the high water mark for plan sponsors and vendors in defending against excessive fee class actions. My thesis was that, when the decision was broken down and analyzed in its constituent parts (and particularly with a focus on the Court’s reasoning), it was unlikely that the decision would be replicated, and more likely that other courts would come to different conclusions in the future that would validate excessive fee claims and invigorate the theory as a basis for class action litigation.
From where I sit, four years of court decisions, settlements and courtroom results appear to have borne out my prognosis. Humble scribe that I am, I don’t believe I have ever pointed out before that I was right in this regard, but, as Thomas Clark pointed out earlier this week in an excellent post on the FRA PlanTools Blog, the recent $30 million settlement entered into by International Paper is solid evidence that I was right.
My real purpose for writing today, though, was to pass along his post on the settlement, which does an excellent job of breaking down the issues, the claims, the alleged breaches, and the settlement of the International Paper case. It comprehensively covers everything any outsider to the litigation would want to or need to know about the case.
To Boldly Go Where No Class Action Plaintiff Has Gone Before: Church Plan Class Actions
One of the interesting developments that caught my eye recently, and likely many of yours as well, was the filing of class action complaints challenging whether certain plans were, in fact, church plans for purposes of ERISA and thus, exempt from many of its requirements. This excellent paper on this development, by Wilber Boies and a cast of thousands at McDermott Will, delves into this issue with great insight. It is worth a read in and of itself if you want to understand both this development, and the legal arguments being pressed to challenge the status as church plans of the defendants in those cases.
Separately, though, I wanted to comment on a few points that the article focuses on, and how it relates to some of the thoughts on ERISA litigation and class action litigation that I have developed in posts over the years. First, I have discussed over the years that ERISA, to a large extent, is based on a private attorney general approach to plan discipline. There are limits to the resources of the DOL when it comes to enforcing the fiduciary obligations, funding requirements, prohibited transaction rules, and other aspects of benefit plans. ERISA, primarily through its breach of fiduciary duty provisions and the availability of the class action mechanism, relies on private enforcement actions to enforce those rules and obligations in the many, many cases where problems with a plan arguably exist, but for one reason or another are not resolved by action by the designated regulator. No matter what one thinks of class action plaintiffs’ firms, the reality is that both the threat of breach of fiduciary duty class actions and the changes imposed by suits that are successful play a significant role in maintaining the standards and integrity of benefit and pension plans. I have often written that most plan sponsors and fiduciaries, in my experience, want to run a sound and successful plan. They don’t, however, always succeed, and there are enough exceptions to this rule to demonstrate that at least some plans aren’t run with that goal in mind. The threat of breach of fiduciary duty class actions serves as a kind of Damocles’ sword hanging over the heads of all fiduciaries – both those who are trying to do a good job and those who have other motivations – leading, in my opinion, to better run plans in the cases of those sponsors who mean well and less egregiously run plans in the cases of those sponsors who mean less well. Of course, successful class action cases alleging breach of fiduciary duty in instances where a plan truly is poorly run also have the effect of actually fixing, to one degree or another, problems in those plans.
Second, the article explains the theories being pressed by the class action bar in these cases, which can be summed up in a soundbite as: the regulators have given plans a free pass in this area for years; the plans in question should not rightly be considered church plans; and the courts should now actually look closely at this issue and narrow the scope of the exception for church plans. I am not sure how persuasive an argument this will be, given the decades of regulatory rulings the argument challenges. However, the argument itself is a perfect example of my first point, above, concerning the beneficial private attorney general role played in the system by the class action plaintiffs’ bar: here, they are testing whether the controlling standards for church plans are correct, and giving the courts an opportunity to address this in detail. Eventually, these cases and this argument will almost certainly end up in the appeals courts, giving rise to a body of modern, well-developed authority on the issue. In the end, this can only benefit everyone (even if it ends up being expensive for the particular plans who are sued and/or for their insurers); plan sponsors, participants, and their lawyers will have a much better sense at the end of the day of exactly where the borders of church plan status rightly rest. There is a perfect corollary for this in the run of employer stock drop class action cases prosecuted over the past several years, which resulted in a series of extensive, well-reasoned appeals court opinions discussing and adopting what has come to be known as the Moench presumption. If you think about it honestly, without a bone to pick dependent on which side of the “v” you normally sit, this was an important and beneficial development for ERISA plans, and not just for litigation, but also for designing and running benefit plans: we now know, but did not before, exactly the context in which holding employer stock in a falling market can and cannot give rise to fiduciary liability. This is a tremendous boon to anyone designing a plan going forward, or trying to advise a plan sponsor or fiduciary of its obligations with regard to employer stock holdings in an existing plan.
Player Safety and the Absence of Guaranteed Contracts in the NFL
I don’t want to turn this into a sports law blog, or – heaven forbid – an NFL blog (heaven knows, there are more than enough of those), but the latest work of the Washington Post on player injuries was too good to ignore. I promise, after this one, I will go back to ERISA and insurance blogging. However, those of you who have read me for awhile on the real subjects of this blog know that I am a fan of data. You want to convince me of something, show me data, and your reasoning, sources and the methodology behind it; I have little use or interest in argument by anecdote.
In “Do no harm: Retired NFL players endure a lifetime of hurt,” their latest article on the NFL’s problem with seriously injured players, the Washington Post’s Sally Jenkins, Rick Maese and Scott Clement detail survey findings as to the post-career injuries and physical conditions of retired NFL players. You should read it – the findings should be enough to dissuade anyone from continuing to think that retired NFL players with serious health issues are the outliers, rather than the norm. I often think that the articulate, well-dressed, well-off, clearly not that injured retired players on ESPN’s pregame shows and the other network’s football shows leave us with the impression that they, and not the injured and complaining retired players, are representative of the population of retired players. The Post’s survey data should make clear that is not the case.
To me, the most interesting aspect of the story is the players’ refrain that they constantly felt it necessary to play while injured (and with injuries serious enough that most of the general population would be out on long term disability benefits if they suffered from them) out of fear they would lose their jobs otherwise. The reason for this, they consistently explain, is the fact that NFL contracts are not guaranteed, and thus, if they lose their roster spot, they lose their livelihood. The Post quotes one former player thusly: “If you don’t play, they don’t pay. You will get cut if you are not on the field. That is why we play through injuries: we have to feed our families.”
Frankly, the fear that ownership will terminate them if they are injured and can’t work sounds more like an issue from late nineteenth century mining in this country than from a modern workplace (if you have ever read J. Anthony Lukas’ “Big Trouble,” than you know what I am talking about; if you haven’t read it, you should). And its easily fixed – just make NFL contracts guaranteed, like they are in other major sports, and the fear of losing their paychecks that drives players to play while seriously injured disappears.
In the Post’s series of articles and in articles elsewhere on the subject, NFL representatives claim they are working to make the game safer and to better take care of players and retired players, but point out that it is slow work. The Post’s article includes a discussion of this point:
The league is also conducting an ongoing campaign to reform what executives say is a “culture” of playing through pain.“That culture has existed and it needs to change,” said NFL Executive Vice President Jeff Pash. “That is a big part of what Commissioner [Roger] Goodell is trying to do. We’re trying to move toward a player safety culture. It’s going to take time, but I think we’re making progress, seeing them being more honest about their injuries.”
Making contracts guaranteed can be done almost instantaneously, and would significantly alter the culture of “playing hurt.” The NFL often likes to hide behind the collective bargaining agreement (“CBA”) as a reason why certain things can or cannot be done: I have little doubt though, that even to the extent changing to guaranteed contracts might relate to the CBA, that the players would agree pretty much immediately to amend the CBA to allow them, or even better, to mandate them.
I will tell you one thing. If I was representing the retired players in any of the class actions being prosecuted against the league for safety related issues, the first thing I would do when the Commissioner or anyone else testified that they were working to improve the situation, is cross them on why, if that’s true and the jury should believe them on that, they still don’t have guaranteed contracts that would give players some security in deciding to sit out when injured.
And a Third Post on Tibble: Thoughts on Revenue Sharing and the Small Recovery for the Class
A few more thoughts to round out my run of posts (you can find them here and here) on the Ninth Circuit’s opinion in Tibble. First of all, where does revenue sharing go as a theory of liability at this point? The Ninth Circuit essentially eviscerated that theory, and I doubt it has much staying power anymore, at least as a central claim in class action litigation. Revenue sharing hasn’t, generally speaking, had much traction in court, and I think it is because, at some level, judges understand that someone has to pay for the plan’s operations. That said, you should still expect to see it as a claim in cases against DC plans and their vendors, even if only as a tag along, with liability only likely to follow in cases where someone comes up with a smoking gun showing that the plan sponsor acted in ways harmful to participants specifically because of a desire to save money for the plan sponsor through its revenue sharing decisions. But revenue sharing in and of itself as an improper act or a fiduciary breach that can warrant damages? Probably not much of a future for such claims.
Second, there is a lot of talk about the expansion of litigation against DC plans and their providers, and has been for sometime now. How does that fit with the minimal recovery by the class in Tibble? To some extent, Tibble, although affirming a trial court award to the class, is not much of a victory, given that the class only recovered a few hundred thousand dollars. In fact, to call it a victory for the plaintiffs, while correct , reminds me of nothing so much as the comment of British General Henry Clinton after the Battle of Bunker Hill, when he noted, given the extent of British casualties, that “"a few more such victories would have surely put an end to British dominion in America." Likewise, a few more victories similar to this one for class plaintiffs in excessive fee cases will put an end to this area of litigation quicker than anything else could, as these types of cases simply would no longer be worth the costs and risks to the class action plaintiffs’ bar. However, it is important to remember that the dollar value of the recovery in Tibble was likely driven down substantially by the statute of limitations ruling, which took much of the time period of potential overcharging out of the case and with it, presumably much of the recovery. If participants bring suit over fees closer to the time that the investment menu that included the excessive fees was created, they will not face that barrier to recovery and the likely recovery could easily be high enough to justify the risks and costs of suit. This, interestingly, is where fee disclosure should come into play – participants, and thus the plaintiffs’ bar, should have enough information about fees to bring suit early enough to avoid the statute of limitations problem that impacted the plaintiffs in Tibble. As a result, there should be more than enough potential recovery in many possible excessive fee cases to motivate plaintiffs’ lawyers to pursue the claims.
And the Ninth Circuit Swings Away at Tibble v. Edison . . .
Well, the United States Court of Appeals for the Ninth Circuit has affirmed the District Court’s well-crafted opinion in Tibble v. Edison. I discussed the District Court’s opinion in detail in my article on excessive fee claims, Retreat From the High Water Mark. From a precedential perspective, as well as from the point of view of what the opinion foretells about the future course of breach of fiduciary duty litigation in the defined contribution context, there is a lot to consider in the opinion. There is too much, in fact, for a single blog post to cover, or at least without the post turning into the length of a published paper. I try to avoid that with blog posts because otherwise, to misquote a poet, what’s a journal or law review for?
I plan instead, however, to run a series of posts, each tackling, in turn, a separate point that is worth taking away from the Ninth Circuit’s opinion. The first one, which I will discuss today, concerns ERISA’s six year statute of limitations for breach of fiduciary duty claims. The Court held that, in this context, ERISA’s six year statute of limitations starts running when a fiduciary breach is committed by choosing and including a particular imprudent plan investment. The Court held that the fact that it stayed in the investment mix did not mean that the breach continued, and the statute of limitations therefore did not start running, for so long as the investment remained in the plan.
Beware future arguments over this holding. You can expect defendants to regularly argue that this case stands for the proposition that the six years always runs from the day an investment option was first introduced, and that any breach of fiduciary duty claims involving that investment that are filed later than six years after that date are untimely. You can also expect defendants to argue to expand this idea into other contexts, and to ask courts to rule that anytime the first part of a breach began more then six years before suit was filed, the statute of limitations has passed. This would not be correct. The opinion only finds this to be the case where there were no further, later in time events that, as a factual matter, should have caused the fiduciaries to act, or which, under the circumstances of those events, constituted a breach of fiduciary duty in its own right; if there were, then those are independent breaches of fiduciary duty from which an additional six year period will run. Those independent, later in time breaches would presumably be their own piece of litigation, evaluated independent (to some extent) of the original breach.
Some Thoughts on Kirkendall v. Halliburton
I have passed along on Twitter (https://twitter.com/SDRosenbergEsq) some of the better reviews that have crossed my desk of the Second Circuit’s recent decision in Kirkendall v. Halliburton, Inc., in which the Court held that a plan participant did not have to exhaust administrative remedies in an ERISA plan where the plan document itself was unclear in imposing such an obligation. Frankly, I wasn’t sure the case itself warranted any more extensive discussion, because I don’t find the Court’s conclusion particularly unusual or controversial in any manner. That said, though, the amount of commentary the case has generated reminds me that, at the end of the day, the Second Circuit is like E.F. Hutton: when they talk, people listen. So to expand on my Twitter thoughts about the case, here are some more expansive thoughts, ones that require more than 140 letters to communicate.
The most important way of viewing the decision, in my thinking, is to remember that exhaustion of administrative remedies in this scenario is not a statutory requirement, and is instead a judge-made doctrine that is based on certain assumptions about ERISA plans and certain premises that are thought to be implicit in the statute. In practice, the imposition of an exhaustion of administrative remedies standard on ERISA claims has generally not been a problem, has worked well, and has been effective in effectuating many of the goals for the statute, such as cost efficiency, limited litigation, and encouraging employers to create benefit plans. That said, however, there is certainly no clear cut basis in the statute for believing that, if a plan sponsor doesn’t clearly communicate the need to appeal within the plan, a plan participant should be required to do so or be shown the courthouse door for having failed to do so. This is essentially all that the Second Circuit concluded: if the plan sponsor doesn’t make it clear to the participant in the relevant documents that certain internal administrative appeals are required, along with explaining how to do that, an obligation to do so cannot be imposed on a plan participant.
This is not a new issue, although the decision in Kirkendall may be the most significant authority to date for this proposition. I have litigated this issue in the past, but most often you see it in one-offs like top-hat plans (or virtual one-offs, like SERPs for just a few executives), where a custom document is created for certain employees to address compensation-related issues, and the ERISA procedural component of doing so is not front and center in the authoring attorney’s mind. Usually, the outcome of any dispute over administrative exhaustion in those situations ends up the same as the ruling by the Second Circuit in Kirkendall for all intents and purposes, but getting to that result is harder than just citing a leading decision from a prominent appellate bench; you instead had to rely on a collection of lower court decisions finding exhaustion to not be required for a multiple of different reasons. Certainly, at the end of the day, Kirkendall will make it easier for lawyers for plan participants faced with this scenario to support their arguments that they can prosecute a claim in court without first exhausting internal administrative appeals, but I don’t think it will much change the outcome from what would have occurred without that decision.
Lanfear, Home Depot and Moench
If you like an extended metaphor – and anyone who has read this blog for awhile knows I do – you should enjoy the Eleventh Circuit’s decision this week in Lanfear v Home Depot, adopting the Moench presumption and explaining exactly how it is to be applied in that circuit. What’s a better analogy than the hard working ant who stores food up for winter, to stand in for plan participants?
But the decision has other things going for it that are much more useful than a nice analogy. In particular, it nicely synthesizes the current state of the case law among those circuits that apply the presumption, and explains exactly how, under its synthesis, a stock drop case needs to be analyzed. In so doing, it also explains how to plead one if you want to get around the barriers that the Moench line of cases has created. Its as good and workable an explanation of a standard as any of the cases offer, and one that, frankly, seems to grant participants as fair a shot at recovering on a stock drop claim as they are likely to see. In my view, it nicely balances the conflicting interests and obligations that come into play when you allow, as occurs in stock drop cases, corporate insiders, securities laws and ERISA to intersect.
On the Other Hand, There May Not Be Any Structural Impediments to Breach of Fiduciary Duty Class Actions in the Sixth Circuit
An astute and clearly knowledgeable reader passed along the point that the recent Sixth Circuit decision in Pfeil v. State Street Bank implicitly rejected the structural barriers to bringing class actions over fiduciary breaches that had been created by the developing case law in other circuits and which were discussed in my recent article, Structural Impediments to Breach of Fiduciary Duty Claims. The Pfeil decision, in allowing the putative class action to proceed past the stage of motion practice, refused to allow a stock drop type case to be ended, prior to the full development of the facts needed for the plaintiffs’ case, by the early application of lowered – or merely altered and fact specific, depending on your point of view - fiduciary standards with regard to employer stock holdings in defined contribution plans, in circumstances in which the plaintiffs could not have, at the outset of the case, full and complete information about the fiduciary breaches at issue. In this way, the Sixth Circuit, deliberately or not, mitigated the difficulties for plaintiffs, identified in my article, that are caused by the intersection of the Iqbal and Twombly pleading standards with the limited information available to plaintiffs at the outset of the case.
Pfeil is interesting for a couple of other reasons as well. One is that, in some ways, it is not a pure stock drop claim, because the plan documents imposed an obligation on the fiduciary to divest under certain circumstances, and the question is whether the fiduciaries failed to comply with those plan terms, rather than simply being the question of whether the holding of the stock under the stock drop scenario in and of itself constituted a breach. Second, I have always felt that the stock drop case law reflected an attempt, implicitly at least and perhaps even subconsciously, to balance the obligations of a company under the securities laws and under ERISA when it comes to stock held in employee plans; Pfeil, by focusing on the liability of an outside fiduciary, does not have that dynamic. Three, I have written before about the evolutionary nature of plaintiffs’ class actions in ERISA, with the idea being that, over time and in response to early defeats – such as Hecker or the stock drop cases – the plaintiffs’ bar will craft more sophisticated and carefully targeted theories of liability, that will eventually pass muster. You see that here in Pfeil, in which a more nuanced approach to a fiduciary breach involving employer stock is able to leap a hurdle – a motion to dismiss – that earlier, less nuanced stock drop theories were not able to clear.
The Dam Breaks: Tussey v. ABB
Tussey v ABB, Inc., an excessive fee and revenue sharing case decided on the last day of March after a full trial before the United States District Court for the District of Western Missouri, is a remarkable decision, imposing extensive liability for acts involving the costs of and revenue sharing for a major plan, on the basis of extensive and detailed fact finding. It is hard to sum up in a quick blurb, and I recommend reading it in full. However, Mark Griffith of Asset Strategy Consultants has a terrific write up of its its import here on his blog, and here is a nice case summary from Dorsey. Beyond that, I would highlight a few key points about the case, viewed from 30,000 feet (the case itself is going to provide grist for tree level, finding by finding analysis for some time to come).
First, and to me most interesting, is that it confirms several conclusions about excessive fee litigation that I have come to in the past and written on extensively, including my insistence that the pro-defense ruling in Hecker was not the last word on this issue (despite the desire of much of the defense bar to believe it was) but was instead the high water mark in defending against such claims. I argued in the past, with regard to the Seventh Circuit’s handling of this issue in Hecker, that the entire issue of fees and revenue sharing would look different than it did to the court in Hecker once courts began hearing evidence and conducting trials on the issues in question, rather than making decisions on the papers, and this ruling bears that out. Like the trial court decision in Tibble, another key early excessive fee case to actually reach trial, the taking of evidence by the court on how fees were set and revenue shared has, in Tussey, resulted in a finding of fiduciary breach in this regard. Tibble and Tussey reflect a central truth: when courts start hearing evidence on what really went on, it becomes apparent to them that plan participants were not fully protected when it comes to the setting and sharing of fees in the design and operation of the plans in question. To deliberately mix my metaphors, what Tussey reflects is that when courts start looking under the hood of how plans are run, they are not liking how the sausage was made. They quickly (relatively speaking, of course, since it takes a long time to get a case from filing through to a trial verdict) conclude that the fees were set and shared in ways that did not properly benefit the participants.
This particular aspect of Tussey is very important. Tussey involved a major plan and a market making investment manager and recordkeeper, applying what the court characterized as standard industry practices in some instances. It is therefore unlikely that the scenarios found by the court in Tussey to be problematic are unique to that case. Other excessive fee and revenue sharing cases that, like Tibble and Tussey, get past motions to dismiss and into the merits are therefore likely to uncover factual scenarios and problems similar to those identified by the court in Tussey.
What also jumps out at me about Tussey is the extent to which revenue sharing, which has often been characterized in the professional literature as harmless in theory, is strongly depicted as problematic as practiced with regard to the particular plan and by the sponsor and service providers at issue. I would have real question, going forward as a plan sponsor, as to whether it makes any sense at all to continue with revenue sharing. Better to just pay a fixed cost, than to risk extensive liability for engaging in revenue sharing. Absent that choice, the treatment of revenue sharing in Tussey makes clear the need for extensive, on-going, documented analysis by the plan’s fiduciaries of whether the level of compensation generated by the revenue sharing was, and remained at all times, appropriate.
Other aspects of Tussey worth noting include these two. First, the opinion provides as good an explanation, in detail, of what revenue sharing really is and how it works as you are going to find. If you want to understand what all the hullabaloo about revenue sharing is about, this opinion is as good a place to start as any.
Second, the opinion contains a nice analysis of one of the most misunderstood issues in ERISA breach of fiduciary duty litigation, namely the six year statute of limitations and how it applies to the implementation of a fiduciary’s decisions related to plan investments. A decision to change a plan investment takes time, starting with an analysis of whether to do so, followed by the steps needed to effectuate it, and eventually resulting in the final steps needed to permanently conclude the change. As the court explained in Tussey, the statute of limitations in that scenario does not start to run – for any of the losses related to that event – until the last act in that run of conduct occurred.
Structural Impediments to Breach of Fiduciary Duty Claims
As many of you know, I write a regular column on ERISA litigation for Aspen’s Journal of Pension Benefits, usually focused on whatever issue has my attention at the moment, although I try to balance that against what readers might have an interest in as well. When it came time to write my article for the publication’s winter issue, I was musing on what seemed to me to be a contradiction in a webinar I had listened in on, in which two prominent experts – who shall remain nameless to protect the innocent – discussed liabilities arising out of the operation of defined benefit and defined contribution plans. The contradiction resided in the fact that they discussed the range of problems and difficulties facing such plans, and the seemingly incongruous fact that, nonetheless, plan sponsors and fiduciaries were unlikely to face liability in a courtroom for their handling of such problems and difficulties. How could that be, I wondered? So I fleshed out an answer, which became this article, titled Structural Impediments to Breach of Fiduciary Duty Claims.
Although I didn’t spell it out explicitly, the article focuses on the barriers to prosecuting such claims as class actions, because that is the forum in which these issues and impediments really manifest themselves, although the issues apply as well to breach of fiduciary duty claims brought by individuals solely on their own behalf. I also used ESOP class actions as an exemplar, for several reasons, running from my own experience with litigation over them to my somewhat morbid fascination – as a lover of newspapers - with the legal morass that the ESOP of the Chicago Tribune (and other affiliated papers) tumbled into.