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Date: 12-12-2018
Case Style:
Larry W. Jander v. Retirement Plans Committee of IBM
Case Number: 17-3518
Judge: Katzman
Court: United States Court of Appeals for the Second Circuit on appeal frm the Southern District of New York (New York County)
Plaintiff's Attorney: Samuel E. Bonderoff and Jacob H. Zamansky
Defendant's Attorney: Lawrence Portnoy, J. Stan Barrett, Michael S. Flynn, W. Trent Thompson
Description:
Plaintiffs‐appellants Larry Jander and Richard Waksman appeal from a
judgment of the Southern District of New York (Pauley, J.) dismissing their suit
against fiduciaries of IBM’s employee stock option plan (“ESOP”). Plaintiffsappellants
claim that the defendants violated their duty under the Employee
Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1104(a)(1)(B), to manage
the ESOP’s assets prudently, because they knew but failed to disclose that IBM’s
microelectronics division (and thus IBM’s stock) was overvalued. The district
court determined that plaintiffs‐appellants did not plausibly plead a violation of
ERISA’s duty of prudence, because a prudent fiduciary could have concluded
that earlier corrective disclosure would have done more harm than good. On
appeal, plaintiffs‐appellants assert that this standard is stricter than the one set
out in Fifth Third Bancorp v. Dudenhoeffer, 134 S. Ct. 2459 (2014), and that the
district court and others have applied this stricter standard in a manner that
makes it functionally impossible to plead a duty‐of‐prudence violation. We find
it unnecessary to determine whether plaintiffs‐appellants are correct, because
they plausibly plead a duty‐of‐prudence claim even under the stricter standard
used by the district court. Accordingly, the judgment of the district court is
REVERSED and the case is REMANDED for further proceedings.
* * *
The Employee Retirement Income Security Act (“ERISA”) requires
fiduciaries of retirement plans to manage the plans’ assets prudently. 29 U.S.C.
§ 1104(a)(1)(B). One form of retirement plan, the employee stock option plan
(“ESOP”), primarily invests in the common stock of the plan participant’s
employer. This case asks what standard one must meet to plausibly allege that
fiduciaries of an ESOP have violated ERISA’s duty of prudence.
The plaintiffs here, IBM employees who were participants in the
company’s ESOP, claim that the plan’s fiduciaries knew that a division of the
company was overvalued but failed to disclose that fact. This failure, the
plaintiffs allege, artificially inflated IBM’s stock price, harming the ESOP’s
members. To state a duty‐of‐prudence claim, plaintiffs must plausibly allege that
a proposed alternative action would not have done more harm than good. The
parties disagree about how high a standard the plaintiffs must meet to make this
showing. However, we need not resolve this dispute today, because we find that
the plaintiffs have plausibly alleged an ERISA violation even under a more
4
restrictive interpretation of recent Supreme Court rulings. We therefore
REVERSE the district court’s judgment dismissing this case and REMAND for
further proceedings.
BACKGROUND
Plaintiffs‐appellants Larry Jander and Richard Waksman, along with other
unnamed plaintiffs (collectively, “Jander”), are participants in IBM’s retirement
plan. They invested in the IBM Company Stock Fund, an ESOP governed by
ERISA. During the relevant time period, defendants‐appellees the Retirement
Plans Committee of IBM, Richard Carroll, Robert Weber, and Martin Schroeter
(collectively, “the Plan defendants”) were fiduciaries charged with overseeing
the retirement plan’s management. The individual defendants were also part of
IBM’s senior leadership: Carroll was the Chief Accounting Officer, Schroeter the
Chief Financial Officer, and Weber the General Counsel.
Jander alleges that IBM began trying to find buyers for its microelectronics
business in 2013, at which time that business was on track to incur annual losses
of $700 million. Through what Jander deems accounting legerdemain, IBM failed
to publicly disclose these losses and continued to value the business at
5
approximately $2 billion. It is further alleged that the Plan defendants knew or
should have known about these undisclosed issues with the microelectronics
business. On October 20, 2014, IBM announced the sale of the microelectronics
business to GlobalFoundries Inc. The announcement revealed that IBM would
pay $1.5 billion to GlobalFoundries to take the business off IBM’s hands and
supply it with semiconductors, and that IBM would take a $4.7 billion pre‐tax
charge, reflecting in part an impairment in the stated value of the
microelectronics business. Thereafter, IBM’s stock price declined by more than
$12.00 per share, spawning two pertinent lawsuits.
The first is International Ass’n of Heat & Frost Insulators & Asbestos Workers
Local #6 Pension Fund v. International Business Machines Corp., 205 F. Supp. 3d 527
(S.D.N.Y. 2016) (“Insulators”), a securities fraud class action that was dismissed
on September 7, 2016. The district court found that the investor plaintiffs had
“plausibly plead[ed] that Microelectronics’ decreased value, combined with its
operating losses, may have constituted an impairment indicator under”
Generally Accepted Accounting Principles (“GAAP”). Id. at 535. The district
court nevertheless dismissed the claims because the plaintiffs “fail[ed] to raise a
6
strong inference that the need to write‐down Microelectronics was so apparent to
Defendants before the announcement, that a failure to take an earlier write‐down
amount[ed] to fraud,” id. at 537 (internal quotation marks and alterations
omitted), or that the defendants knew that IBM’s earnings‐per‐share projections
“lacked a reasonable basis when they were made,” id. at 537‐38. That decision
has not been appealed.
The second action is this case. Here, Jander alleges that the Plan
defendants continued to invest the ESOP’s funds in IBM common stock despite
the Plan defendants’ knowledge of undisclosed troubles relating to IBM’s
microelectronics business. In doing so, Jander alleges, the Plan defendants
violated their fiduciary duty of prudence to the pensioner plaintiffs under
ERISA. The plaintiffs also pleaded that “once Defendants learned that IBM’s
stock price was artificially inflated, Defendants should have either disclosed the
truth about Microelectronics’ value or issued new investment guidelines that
would temporarily freeze further investments in IBM stock.” Jander v. Int’l Bus.
Mach. Corp., 205 F. Supp. 3d 538, 544 (S.D.N.Y. 2016) (“Jander I”).
The district court first dismissed Jander’s case on the same day it decided
7
the securities fraud lawsuit. See id. at 540‐41. As an initial matter, the district
court relied on the reasoning set forth in its securities fraud decision to find that
the pensioner plaintiffs had “plausibly pled that IBM’s Microelectronics unit was
impaired and that the Plan fiduciaries were aware of its impairment.” Id. at 542.
The court noted that knowledge was a sufficient level of scienter because ERISA
plaintiffs need not meet the heightened pleading standards that apply in
securities actions. Id. But the district court nevertheless dismissed the action
because Jander had “fail[ed] to plead facts giving rise to an inference that
Defendants ‘could not have concluded’ that public disclosures, or halting the
Plan from further investing in IBM stock, were more likely to harm than help the
fund.” Id. at 545 (citing Fifth Third, 134 S. Ct. at 2472).
Rather than dismiss the action with prejudice, however, the district court
granted Jander an opportunity to file a second amended complaint. Id. at 546.
Jander availed himself of that opportunity, adding further details and alleging a
third alternative by which the Plan defendants could have avoided breaching
their fiduciary duty: by purchasing hedging products to mitigate potential
declines in the value of IBM common stock. The district court again found
8
lacking the allegations concerning the three alternatives available to the Plan
defendants, determining that each might have caused more harm than good.
Jander v. Ret. Plans Comm. of IBM, 272 F. Supp. 3d 444, 451‐54 (S.D.N.Y. 2017)
(“Jander II”). This appeal followed.
DISCUSSION
I. Standard of Review
“To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint
must allege sufficient facts, taken as true, to state a plausible claim for relief. We
review de novo a dismissal for failure to state a claim, accepting as true all
material factual allegations in the complaint and drawing all reasonable
inferences in plaintiffs’ favor.” Johnson v. Priceline.com, Inc., 711 F.3d 271, 275 (2d
Cir. 2013) (citation omitted).
II. Duty of Prudence
“The central purpose of ERISA is to protect beneficiaries of employee
benefit plans . . . .” Slupinski v. First Unum Life Ins. Co., 554 F.3d 38, 47 (2d Cir.
2009). Among the “important mechanisms for furthering ERISA’s remedial
purpose” are “private actions by beneficiaries seeking in good faith to secure
9
their rights.” Salovaara v. Eckert, 222 F.3d 19, 28 (2d Cir. 2000) (internal quotation
mark omitted) (quoting Meredith v. Navistar Int’l Transp. Corp., 935 F.2d 124, 128‐
29 (7th Cir. 1991)). Such private actions include claims against a fiduciary for
breach of the statutorily imposed duty of prudence. See 29 U.S.C. § 1104(a)(1)
(“[A] fiduciary shall discharge his duties with respect to a plan solely in the
interest of the participants and beneficiaries and . . . with the care, skill,
prudence, and diligence under the circumstances then prevailing that a prudent
man acting in a like capacity and familiar with such matters would use in the
conduct of an enterprise of a like character and with like aims . . . .”). The sole
question at issue in this appeal is whether Jander has plausibly pleaded that the
Plan defendants violated this duty.
A. ERISA’s Duty‐of Prudence Standard
The parties disagree first and most fundamentally about what the
plaintiffs must plead to state a duty‐of‐prudence claim under ERISA. Their
arguments are premised on competing readings of two recent decisions by the
United States Supreme Court and differing views of how they interact with the
decisions of our sister circuits. Some background is therefore in order.
10
Prior to 2014, a consensus had formed that ESOP fiduciaries were entitled
to a presumption that their fund management was prudent. This view was first
articulated by the Third Circuit, which reasoned that “an ESOP fiduciary who
invests the assets in employer stock is entitled to a presumption that it acted
consistently with ERISA by virtue of that decision” because “when an ESOP is
created, it becomes simply a trust under which the trustee is directed to invest
the assets primarily in the stock of a single company,” a function that “serves a
purpose explicitly approved and encouraged by Congress.” Moench v. Robertson,
62 F.3d 553, 571 (3d Cir. 1995). As adopted by this Court, the presumption held
that “only circumstances placing the employer in a dire situation that was
objectively unforeseeable by the [plan] settlor could require fiduciaries to
override plan terms” by ceasing investment in the employer, a standard that
would “serve as a substantial shield that should protect fiduciaries from liability
where there is room for reasonable fiduciaries to disagree as to whether they are
bound to divest from company stock.” In re Citigroup ERISA Litig., 662 F.3d 128,
140 (2d Cir. 2011) (internal quotation marks and citations omitted). Other circuits
11
agreed, although the precise formulation and application of the presumption in
favor of fiduciaries differed.1
In 2014, the Supreme Court definitively rejected the presumption of
prudence in Fifth Third Bancorp v. Dudenhoeffer, which held that “the law does not
create a special presumption favoring ESOP fiduciaries.” 134 S. Ct. 2459, 2467
(2014). The Court recognized that there is a “legitimate” concern that “subjecting
ESOP fiduciaries to a duty of prudence without the protection of a special
presumption will lead to conflicts with the legal prohibition on insider trading,”
given that “ESOP fiduciaries often are company insiders” subject to allegations
that they “were imprudent in failing to act on inside information they had about
the value of the employer’s stock.” Id. at 2469. Nevertheless, the Court reasoned
1 See, e.g., White v. Marshall & Ilsley Corp., 714 F.3d 980, 989 (7th Cir. 2013)
(“[P]laintiffs . . . must allege . . . that the company faced impending collapse or dire
circumstances that could not have been foreseen by the founder of the plan.” (internal
quotation marks omitted)); Quan v. Comput. Sci. Corp., 623 F.3d 870, 882 (9th Cir. 2010)
(“[P]laintiffs must . . . make allegations that clearly implicate the company’s viability as
an ongoing concern or show a precipitous decline in the employer’s stock combined
with evidence that the company is on the brink of collapse or is undergoing serious
mismanagement.” (internal quotation marks and alterations omitted)); Kuper v. Iovenko,
66 F.3d 1447, 1459 (6th Cir. 1995) (“A plaintiff may . . . rebut th[e] presumption of
reasonableness by showing that a prudent fiduciary acting under similar circumstances
would have made a different investment decision.”).
12
that “an ESOP‐specific rule that a fiduciary does not act imprudently in buying
or holding company stock unless the company is on the brink of collapse (or the
like) is an ill‐fitting means of addressing” that issue. Id.
Similarly, the Court “agree[d] that Congress sought to encourage the
creation of ESOPs”; the Court thus “recognized that ‘ERISA represents a careful
balancing between ensuring fair and prompt enforcement of rights under a plan
and the encouragement of the creation of such plans.’” Id. at 2470 (quoting
Conkright v. Frommert, 559 U.S. 506, 517 (2010)). Still, it concluded that the
presumption of prudence was not “an appropriate way to weed out meritless
lawsuits or to provide the requisite ‘balancing.’” Id. The correct standard must
“readily divide the plausible sheep from the meritless goats,” a task that is
“better accomplished through careful, context‐sensitive scrutiny of a complaint’s
allegations.” Id. Notably, the Court criticized the presumption of prudence as
“mak[ing] it impossible for a plaintiff to state a duty‐of‐prudence claim, no
matter how meritorious, unless the employer is in very bad economic
circumstances.” Id.
After rejecting the pro‐fiduciary presumption, Fifth Third “consider[ed]
13
more fully one important mechanism for weeding out meritless claims, the
motion to dismiss for failure to state a claim.” Id. at 2471. The Court first
determined that a duty‐of‐prudence claim may lie against ESOP fiduciaries only
where it is alleged that fiduciaries “behaved imprudently by failing to act on the
basis of nonpublic information that was available to them because they were
[corporate] insiders.” Id. at 2472. To plead such a claim, plaintiffs must “plausibly
allege an alternative action that the defendant could have taken that would have
been consistent with the securities laws and that a prudent fiduciary in the same
circumstances would not have viewed as more likely to harm the fund than to
help it.” Id.
In analyzing any proposed alternative action, three considerations are to
“inform the requisite analysis.” Id. First, the “duty of prudence cannot require an
ESOP fiduciary to perform an action—such as divesting the fund’s holdings of
the employer’s stock on the basis of inside information—that would violate the
securities laws.” Id. Second, “where a complaint faults fiduciaries for failing to
decide, on the basis of the inside information, to refrain from making additional
stock purchases or for failing to disclose that information to the public so that the
14
stock would no longer be overvalued, . . . courts should consider” whether such
actions “could conflict with the complex insider trading and corporate disclosure
requirements imposed by the federal securities laws or with the objectives of
those laws.” Id. at 2473. And third, courts assessing these same alternatives
“should also consider whether the complaint has plausibly alleged that a
prudent fiduciary in the defendant’s position could not have concluded” that
those alternatives “would do more harm than good to the fund by causing a
drop in the stock price and a concomitant drop in the value of the stock already
held by the fund.” Id.
This last consideration is the source of the parties’ dispute here. The Court
first set out a test that asked whether “a prudent fiduciary in the same
circumstances would not have viewed [an alternative action] as more likely to
harm the fund than to help it.” Id. at 2472 (emphasis added). This formulation
suggests that courts ask what an average prudent fiduciary might have thought.
But then, only a short while later in the same decision, the Court required judges
to assess whether a prudent fiduciary “could not have concluded” that the action
would do more harm than good by dropping the stock price. Id. at 2473
15
(emphasis added). This latter formulation appears to ask, not whether the average
prudent fiduciary would have thought the alternative action would do more
harm than good, but rather whether any prudent fiduciary could have
considered the action to be more harmful than helpful. It is not clear which of
these tests determine whether a plaintiff has plausibly alleged that the actions a
defendant took were imprudent in light of available alternatives.
Lower courts have struggled with how to apply the Court’s decision in the
ensuing years, and the high court has yet to resolve the interpretive difficulties.
In the wake of Fifth Third, the Ninth Circuit reversed a district court’s dismissal
of ERISA claims based, in part, on alleged breaches of the duty of prudence in
light of the fiduciaries’ inside information. Harris v. Amgen, Inc., 770 F.3d 865 (9th
Cir. 2014), amended and superseded, 788 F.3d 916 (9th Cir. 2015), rev’d, 136 S. Ct. 758
(2016). The court rejected Amgen’s argument that removing the ESOP fund as an
investment option would have risked causing the employer’s stock price to drop.
Though the Ninth Circuit acknowledged that removing the fund “would have
sent a negative signal to investors if the fact of the removal had been made
public,” the court determined that it would do so by implicitly disclosing that the
16
company was experiencing problems; thus, “the ultimate decline in price would
have been no more than the amount by which the price was artificially inflated.”
Id. at 878. The court also rejected Amgen’s argument that defendants could not
legally remove the fund based on inside information, finding that declining to
allow additional investments “would not thereby have violated the prohibition
against insider trading, for there is no violation absent purchase or sale of stock.”
Id. at 879. Moreover, the court explained, this supposed conundrum could have
been easily resolved “[i]f defendants had revealed material information in a
timely fashion to the general public (including plan participants),” which “would
have simultaneously satisfied their duties under both the securities laws and
ERISA.” Id. at 878‐79.
The Supreme Court summarily reversed the Ninth Circuit, holding that it
failed to adequately scrutinize the plaintiffs’ pleadings. Amgen Inc. v. Harris, 136
S. Ct. 758, 760 (2016) (per curiam). The Court did not reject the Ninth Circuit’s
reasoning outright. Rather, it found a mismatch between that reasoning and the
allegations in the “current form” of the complaint regarding whether “a prudent
fiduciary in the same position ‘could not have concluded’ that the alternative
17
action ‘would do more harm than good.’” Id. (quoting Fifth Third, 134 S. Ct. at
2473). The Court stated:
The Ninth Circuit’s proposition that removing the Amgen Common
Stock Fund from the list of investment options was an alternative
action that could plausibly have satisfied Fifth Third’s standards may
be true. If so, the facts and allegations supporting that proposition
should appear in the stockholders’ complaint. Having examined the
complaint, the Court has not found sufficient facts and allegations to
state a claim for breach of the duty of prudence.
Id. “Amgen’s analysis, however, neglects to offer any guidance about what facts a
plaintiff must plead to state a plausible claim for relief.” Saumer v. Cliffs Nat. Res.
Inc., 853 F.3d 855, 865 (6th Cir. 2017). This is in part because the complaint in
Amgen included no allegations regarding proposed alternative actions beyond
the bare assertion that they were available.2 Accordingly, Amgen’s import could
2 The relevant allegations in the Amgen complaint are found in a single paragraph
that is repeated twice verbatim:
Defendants had available to them several different options for satisfying
this duty, including: making appropriate disclosures as necessary;
divesting the Plan of Company Stock; precluding additional investment in
Company Stock; consulting independent fiduciaries regarding appropriate
measures to take in order to prudently and loyally serve the participants of
the Plan; or resigning as fiduciaries of the Plan . . . .
Harris v. Amgen, Inc., No. 07 Civ. 5442, Dkt. No. 168, ¶¶ 290, 344 (C.D. Cal. Mar. 23,
2010). These alternatives were not fleshed out in any further detail and the complaint
18
be interpreted in multiple ways. It might clarify what was implicit in Fifth Third:
that allegations about why an alternative action would do more good than harm
must appear in the complaint itself, not merely in a court’s opinion. Or it might
instead confirm that the “could not have concluded” language from Fifth Third
created a separate standard that must independently be satisfied to plead a dutyof‐
prudence claim.
The parties spar over which of these two interpretations is correct. The
Plan defendants urge us to view Fifth Third and Amgen as setting out a restrictive
test, noting that at least two of our sister circuits have adopted that
interpretation. See Saumers, 853 F.3d at 864‐65; Whitley v. BP, P.L.C., 838 F.3d 523,
529 (5th Cir. 2016). Jander notes that no duty‐of‐prudence claim against an ESOP
fiduciary has passed the motion‐to‐dismiss stage since Amgen, and he asserts that
the courts—and the Plan defendants—have misread that decision. According to
Jander, imposing such a heavy burden at the motion‐to‐dismiss stage runs
contrary to the Supreme Court’s stated desire in Fifth Third to lower the barrier
set by the presumption of prudence. Our sole precedential post‐Amgen duty‐ofwas
never amended following Fifth Third.
19
prudence opinion does not explicitly take a side in this dispute. See Rinehart v.
Lehman Bros. Holdings Inc., 817 F.3d 56, 68 (2d Cir. 2016), cert. denied, 137 S. Ct.
1067 (2017).
We need not here decide which of the two standards the parties champion
is correct, however, because we find that Jander plausibly pleads a duty‐ofprudence
claim even under the more restrictive “could not have concluded” test.
B. The Plaintiffs’ Duty‐of‐Prudence Claim
The district court held that Jander failed to state a duty‐of‐prudence claim
under ERISA because a prudent fiduciary could have concluded that the three
alternative actions proposed in the complaint—disclosure, halting trades of IBM
stock, or purchasing a hedging product—would do more harm than good to the
fund. We respectfully disagree. Jander has limited the proposed alternative
actions on appeal to just one: early corrective disclosure of the microelectronics
division’s impairment, conducted alongside the regular SEC reporting process.
Several allegations in the amended complaint, considered in combination and
“draw[ing] all reasonable inferences in plaintiff’s favor,” Panther Partners Inc. v.
Ikanos Commc’ns, Inc., 681 F.3d 114, 119 (2d Cir. 2012) (citation omitted), plausibly
20
establish that a prudent fiduciary in the Plan defendants’ position could not have
concluded that corrective disclosure would do more harm than good.
First, the Plan defendants allegedly knew that IBM stock was artificially
inflated through accounting violations. As the district court found, Jander has
plausibly alleged a GAAP violation, and “in view of the lower pleading
standards applicable to an ERISA action, [he has] plausibly pled that IBM’s
Microelectronics unit was impaired and that the Plan fiduciaries were aware of
its impairment.” Jander I, 205 F. Supp. 3d at 542.
Second, the Plan defendants allegedly “had the power to disclose the truth
to the public and correct the artificial inflation.” App. 85. Two of the Plan
defendants “were uniquely situated to fix this problem inasmuch as they had
primary responsibility for the public disclosures that had artificially inflated the
stock price to begin with.” Id. The district court thought that the complaint failed
to account for the risks that “an unusual disclosure outside the securities laws’
normal reporting regime could spook the market, causing a more significant
drop in price than if the disclosure were made through the customary
procedures.” Jander II, 272 F. Supp. 3d at 451 (citation omitted). This reasoning
21
assumes that any disclosure would have to have been “outside the securities’
laws normal reporting regime.” Id. Yet the class period here runs from January
through October 2014. The amended complaint therefore plausibly alleges that
disclosures could have been included within IBM’s quarterly SEC filings and
disclosed to the ESOP’s beneficiaries at the same time in the Plan defendants’
fiduciary capacity. See App. 60‐61.
Third, Jander alleges that the defendants’ failure promptly to disclose the
value of IBM’s microelectronics division “hurt management’s credibility and the
long‐term prospects of IBM as an investment” because the eventual disclosure of
a prolonged fraud causes “reputational damage” that “increases the longer the
fraud goes on[].” App. 87. The district court dismissed this allegation as an
“argument [that] rests on hindsight,” which “says nothing about what a prudent
fiduciary would have concluded under the circumstances then prevailing.”
Jander II, 272 F. Supp. 3d at 450. But Jander’s argument is not retrospective. A
reasonable business executive could plausibly foresee that the inevitable
disclosure of longstanding corporate fraud would reflect badly on the company
and undermine faith in its future pronouncements. Moreover, Jander bolsters
22
this inference by citing economic analyses that show that reputational harm is a
common result of fraud and grows the longer the fraud is concealed, translating
into larger stock drops.
The court below rejected the argument that an earlier disclosure would
have minimized the eventual stock price correction, on the ground that it was
“not particular to the facts of this case and could be made by plaintiffs in any
case asserting a breach of ERISA’s duty of prudence.” Jander II, 272 F. Supp. 3d at
449 (quoting Jander I, 205 F. Supp. 3d at 546); see also id. at 450 & n.2. (criticizing
plaintiffs for not “retaining an expert to perform a quantitative analysis to show
more precisely how Plan participants are harmed . . . by purchasing Fund shares
at artificially high prices” but further noting that “even that may not be enough”
to state a claim). And although Jander cited a number of economic studies to
support his argument, the court said that this evidence “only underscores the
general, theoretical, and untested nature of [the] allegations.” Id. at 449.
However, the possibility of similar allegations in other ERISA cases does
not undermine their plausibility here (or, for that matter, elsewhere), nor does it
mean that the district court should not have considered them. To the contrary, in
23
evaluating the defendants’ motion to dismiss, the district court was required to
accept the complaint’s well‐pleaded allegations as true. Assertions grounded in
economic studies of general market experience cannot be dismissed as merely
“theoretical,” and the fact that they are “untested” at this early stage of the
litigation does not necessarily render them implausible. Moreover, as Jander
points out, there are a number of other determinations that must be made in a
fact‐specific way before these allegations come into play: whether there was an
ongoing act of concealment, for instance, and whether that concealment was
known by the fiduciaries such that further investigation would not be needed
and disclosure would not be premature. Courts would also have to assess
whether the circumstances would nevertheless have made immediate disclosure
particularly dangerous, such that the generalized economic analyses put forward
here would not apply. See, e.g., Rinehart, 817 F.3d at 68 (“A prudent fiduciary
could have concluded that divesting Lehman stock, or simply holding it without
purchasing more, would do more harm than good. Such an alternative action in
the summer of 2008 could have had dire consequences.” (citation and internal
quotation marks omitted)). While these economic analyses will usually not be
24
enough on their own to plead a duty‐of‐prudence violation, they may be
considered as part of the overall picture.
Fourth, the complaint alleges that “IBM stock traded in an efficient
market,” such that “correcting the Company’s fraud would reduce IBM’s stock
price only by the amount by which it was artificially inflated.” App. 51. It is well
established that “the market price of shares traded on well‐developed markets
reflects all publicly available information.” Basic Inc. v. Levinson, 485 U.S. 224, 246
(1988). Accordingly, Jander plausibly alleges that a prudent fiduciary need not
fear an irrational overreaction to the disclosure of fraud.3
Fifth and finally, the defendants allegedly knew that disclosure of the truth
regarding IBM’s microelectronics business was inevitable, because IBM was
likely to sell the business and would be unable to hide its overvaluation from the
public at that point. See App. 88. This allegation is particularly important. In the
normal case, when the prudent fiduciary asks whether disclosure would do more
harm than good, the fiduciary is making a comparison only to the status quo of
3 This is not inconsistent with the prior allegation regarding reputational harm.
Rational investors could well conclude that companies that allow fraud to continue
longer are more poorly run, for example.
25
non‐disclosure. In this case, however, the prudent fiduciary would have to
compare the benefits and costs of earlier disclosure to those of later disclosure—
non‐disclosure is no longer a realistic point of comparison. Accordingly, when a
“drop in the value of the stock already held by the fund” is inevitable, Fifth Third,
134 S. Ct. at 2473, it is far more plausible that a prudent fiduciary would prefer to
limit the effects of the stock’s artificial inflation on the ESOP’s beneficiaries
through prompt disclosure.
The district court thought that the potential sale of the microelectronics
business cut the other way. Jander II, 272 F. Supp. 3d at 451 (theorizing that a
prudent fiduciary could think disclosure might “spook potential buyers”). But
we think any potential purchaser would surely conduct its own due diligence of
the business prior to purchasing it. In that context, it makes little sense to fear
“spooking” a potential buyer by publicly disclosing what that buyer would
surely discover on its own. Accordingly, a prudent fiduciary would have known
that a potential purchaser’s due diligence would likely result in discovery of the
business’s problems in any event. Indeed, that is precisely what appears to have
occurred, as IBM paid $1.5 billion to GlobalFoundries as part of its sale of the
26
microelectronics business, the announcement of which constituted corrective
disclosure to the public markets in this action. The allegations regarding the sale
of the microelectronics business, far from undermining Jander’s duty‐ofprudence
claim, instead tip the scales toward plausibility.
The Plan defendants have one arrow left in their quiver. According to the
district court, Jander’s corrective disclosure theory did not sufficiently account
for the effect of disclosure on “the value of the stock already held by the fund.”
Fifth Third, 134 S. Ct. at 2473. Specifically, the court found that the complaint
failed to satisfy Fifth Third in part because “even if the stock price dropped
marginally as a result of a corrective disclosure, the net effect of that drop on
more than $110 million purchased by Plan participants could have been
substantial.” Jander II, 272 F. Supp. 3d at 450. But, as described above, nondisclosure
of IBM’s troubles was no longer a realistic option, and a stock‐drop
following early disclosure would be no more harmful than the inevitable stock
drop that would occur following a later disclosure. Thus, contrary to the district
court’s conclusion, the effect of disclosure on “the value of the stock already held
by the fund,” Fifth Third, 134 S. Ct. at 1473, does not point in defendants’ favor.
27
To be sure, further record development might not support findings so
favorable to Jander and adverse to the Plan defendants. But drawing all
reasonable inferences in Jander’s favor, as we are required to do at this stage, and
keeping in mind that the standard is plausibility—not likelihood or certainty—
we conclude that Jander has sufficiently pleaded that no prudent fiduciary in the
Plan defendants’ position could have concluded that earlier disclosure would do
more harm than good. We therefore hold that Jander has stated a claim for
violation of ERISA’s duty of prudence.
III. The Interplay Between the ERISA and Securities Fraud Suits
One issue remains for us to address: the relevance, if any, of the parallel
securities fraud suit against IBM. As already noted, the district court dismissed
that case, and the plaintiffs did not appeal. The district court found that the
plaintiffs had “fail[ed] to raise a strong inference that the need to write‐down
Microelectronics was so apparent to Defendants before the announcement, that a
failure to take an earlier write‐down amounts to fraud,” or that the Plan
defendants knew that IBM’s earnings‐per‐share projections “lacked a reasonable
basis when they were made.” Insulators, 205 F. Supp. 3d at 537‐38 (internal
28
quotation marks and alterations omitted). The plaintiffs therefore could not
plausibly plead scienter. Id. at 535, 537‐38. The Plan defendants assert that
allowing Jander’s ERISA claim to go forward on essentially the same facts would
lead to an end run around the heightened pleading standards for securities fraud
suits set out in the Private Securities Litigation Reform Act (“PSLRA”), 15 U.S.C.
§ 78u‐4(b). While this concern is not without merit, it does not provide a basis to
affirm the district court’s dismissal of Jander’s duty‐of‐prudence claim.
The Insulators holding is not preclusive as to this case, because the PSLRA
does not apply to ERISA actions. “No heightened pleading standard applies [to
duty‐of‐prudence claims]; it is enough to provide the context necessary to show a
plausible claim for relief.” Allen v. GreatBanc Tr. Co., 835 F.3d 670, 674 (7th Cir.
2016); see also Rogers v. Baxter Int’l, Inc., 521 F.3d 702, 705 (7th Cir. 2008) (holding
that the PSLRA does not apply to ERISA claims). This is clear from the text of the
PSLRA itself, which is limited to actions under the securities laws. See Pub. L.
No. 104‐67, tit. I, § 101(b) (codified as amended at 15 U.S.C. § 78u‐4(a)(1)) (“The
provisions of this subsection shall apply in each private action arising under this
title [Title 15] that is brought as a plaintiff class action pursuant to the Federal
29
Rules of Civil Procedure.”); 15 U.S.C. § 78u‐4(a)(1) (limiting the PSLRA’s reach to
any “private action arising under this chapter [the Securities Exchange Act of
1934] that is brought as a plaintiff class action”). Additionally, the legislative
history of the PSLRA indicates that Congress heightened the pleading
requirements for fraud because the securities fraud laws were being abused and
“[u]nwarranted fraud claims can lead to serious injury to reputation for which
our legal system effectively offers no redress.” H.R. Conf. Rep. 104‐369, at 41
(1995), 1995 U.S.C.C.A.N. 730, 740; see Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 320 (2007) (noting that the PSLRA was “[d]esigned to curb
perceived abuses of the § 10(b) private action”). In ERISA cases such as this,
however, plaintiffs are not accusing defendants of fraud. They are accusing
defendants only of violating a fiduciary duty of prudence, which does not carry
the same stigma.
Nor have we applied other, similar heightened pleading standards to
ERISA claims. Only when plaintiffs invoke the fraud exception to ERISA’s usual
statutes of limitations, for instance, have we required them to follow the
heightened pleading standards for fraud laid out in Federal Rule of Civil
30
Procedure 9(b). See Janese v. Fay, 692 F.3d 221, 228 (2d Cir. 2012); see also Concha v.
London, 62 F.3d 1493, 1502 (9th Cir. 1995) (holding that Rule 9(b) does not apply
to ERISA fiduciary‐duty claims).
“ERISA and the securities laws ultimately have differing objectives
pursued under entirely separate statutory schemes designed to protect different
constituencies—ERISA plan beneficiaries in the first instance and purchasers and
sellers of securities in the second.” In re Lehman Bros. Sec. & ERISA Litig., 113 F.
Supp. 3d 745, 768 (S.D.N.Y. 2015), aff’d sub nom. Rinehart, 817 F.3d 56; accord In re:
BP Sec., Derivative & Emp’t Ret. Income Sec. Act (ERISA) Litig., 734 F. Supp. 2d
1380, 1382 (J.P.M.L. 2010). Congress has chosen different structures to handle
different claims; it is not our role to tie together what Congress has chosen to
keep separate. If plaintiffs do begin to abuse ERISA in the way Congress felt they
have abused the securities laws, then Congress can amend ERISA accordingly.
Just because the dismissal of the parallel securities suit is not preclusive,
however, does not mean that it is irrelevant. Our recognition of a plausible
ERISA duty‐of‐prudence claim assumes—consistent with the Insulators ruling—
that the Plan defendants did not commit securities fraud but, nevertheless, that
31
Jander plausibly alleges that the Plan defendants had the requisite knowledge of
overvaluation to raise fiduciary responsibilities consistent with the standard
identified in Fifth Third. Since the Insulators suit was dismissed and not appealed,
Jander may not allege directly or indirectly that the Plan defendants committed
securities fraud. However, he may of course allege (and attempt to prove) that
the Plan defendants knew about the microelectronics division’s overvaluation
and failed to disclose it.
Outcome: For the foregoing reasons, we REVERSE the judgment below and
REMAND this matter to the district court for further proceedings consistent with
this opinion.
Plaintiff's Experts:
Defendant's Experts:
Comments: