ANDREW ALBERT, Plaintiff-Appellant, v. OSHKOSH CORPORATION, et al., Defendants-Appellees.
No. 21-2789
United States Court of Appeals For the Seventh Circuit
ARGUED JUNE 2, 2022 — DECIDED AUGUST 29, 2022
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 1:20-cv-00901 — William C. Griesbach, Judge.
Before EASTERBROOK, ST. EVE, and JACKSON-AKIWUMI, Circuit Judges.
The district court granted Defendants’ motion to dismiss the complaint and denied Albert‘s motion to reconsider. While this appeal was pending, the Supreme Court issued its opinion in Hughes v. Northwestern University, 142 S. Ct. 737 (2022), vacating our decision in Divane v. Northwestern University, 953 F.3d 980 (7th Cir. 2020), and remanding for reevaluation of the operative complaint. The district court cited Divane repeatedly in its opinion, albeit not for the proposition that the Supreme Court rejected in Hughes. As explained below, we affirm the dismissal of all claims for failure to state a claim.
A. Statutory Context
The Employee Retirement Income Security Act of 1974 (“ERISA“),
In a defined contribution plan like Albert‘s, “participants’ retirement benefits are limited to the value of their own individual investment accounts, which is determined by the market performance of employee and employer contributions, less expenses.” Tibble v. Edison Int‘l, 575 U.S. 523, 525 (2015); see
Id. Recordkeeping fees are assessed either as a flat fee per participant or via an expense ratio.
Sometimes, a portion of the investment-management fees collected through an expense ratio goes to the recordkeeper. This is known as “revenue sharing.” We have explained that “expense ratios and revenue-sharing payments [generally] move in tandem: the higher a given share class‘s expense ratio, the more the fund pays [the recordkeeper] in revenue sharing.” Leimkuehler v. Am. United Life Ins. Co., 713 F.3d 905, 909 (7th Cir. 2013). A “share class” refers to groups of investors who invest in the same investment option. A “retail” share class pays the same fees as the general public, while an “institutional” share class pays a discounted rate.
These principles meant that the categorical rule we applied in Divane was improper. Hughes, 142 S. Ct. at 742. The Court therefore vacated and remanded for us to reconsider whether the plaintiffs had plausibly alleged a violation of the duty of prudence in light of Tibble, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). The Court noted, however, that “the circumstances facing an ERISA fiduciary will implicate difficult tradeoffs, and courts must give due regard to the range of reasonable judgments a fiduciary may make based on her experience and expertise.” Hughes, 142 S. Ct. at 742. The case is still pending before this court on remand.
Several of the questions presented in this appeal concern the ramifications of Hughes. According to Defendants, Hughes “did not radically reinvent this area of law or upend years of precedent“; it simply reinforced that “ERISA does not allow the soundness of investments A, B, and C to excuse the unsoundness of investments D, E, and F.” Plaintiff, meanwhile, contends that Hughes renders reliance on any aspect of Divane improper.
B. Facts
Andrew Albert worked for a subsidiary of Oshkosh Corporation from January 2018 to April 2020. Oshkosh Corporation is a company based in Oshkosh, Wisconsin that manufactures specialty vehicles and trucks. Oshkosh Corporation is the plan sponsor of the Oshkosh Corporation and Affiliates Tax Deferred Investment Plan (“the Plan“). The plan administrator is the Administrative Committee, which oversees the day-to-day administration and operation of the Plan. Oshkosh selected Fidelity Management Trust Company (“Fidelity“) as the Plan‘s recordkeeper and Strategic Advisors, Inc. (“SAI“) as the Plan‘s investment advisor. SAI is a subsidiary of Fidelity, but neither SAI nor Fidelity are defendants here. According to Albert, the Plan has about $1.1 billion in assets and over 12,000 participants.
Albert filed this suit individually and as a representative of a putative class of Plan participants and beneficiaries. As a former employee, he participated in the Plan, but
Albert brings nine counts against Oshkosh, which can be sorted into three buckets: recordkeeping fees (Count I), investment-management fees (Count II), and ancillary claims (Count III to IX). Count III alleges that Oshkosh breached its fiduciary duty by paying too much to SAI in the form of investment-advisor fees. While Counts I to III allege breaches of the duties of prudence and loyalty, only Count III is arguably relevant to a breach of the duty of loyalty, as explained below. Counts IV to VI mirror Counts I to III but allege that Oshkosh failed to monitor other fiduciaries with respect to the Plan‘s fees. Counts VII to IX allege that payment of each category of fees amounted to a prohibited transaction in violation of
C. Procedural History
On September 2, 2021, the district court granted Oshkosh‘s motion to dismiss the complaint. At no point did the court rely on the categorical rule the Supreme Court rejected in Hughes. First, the district court dismissed Count I (breach of fiduciary duty for excessive recordkeeping fees) because Albert‘s allegations—that nine purportedly comparable plans paid less for recordkeeping—did not plausibly “suggest[] that the fee charged by Fidelity [was] excessive in relation to the services provided.” Albert v. Oshkosh Corp., No. 20-C-901, 2021 WL 3932029, at *5 (E.D. Wis. Sept. 2, 2021). The district court dismissed Count II (breach of fiduciary duty for excessive investment-management fees), which it divided into two categories: share-class allegations and high-cost fund allegations. As to the first category, “Plaintiff‘s preference for different share classes of certain investments is not enough to state a plausible claim for breach of fiduciary duty.” Id. at *6. The district court noted that the Seventh Circuit “has not addressed imprudence based on a net investment expense to retirement plans theory,” but this lack of guidance was “primarily because it is a novel concept created by Plaintiff.” Id. As to the second category, “[t]he fact that the Plan offered certain actively managed options does not establish that Defendants acted imprudently.” Id. at *7. Count III (breach of fiduciary duty for excessive investment-advisor fees) failed to state a claim because Albert “does not allege that a lower-cost alternative would provide comparable services.” Id. at *7.
Counts I to III also failed to state duty of loyalty claims because plaintiffs “must do more than recast allegations of purported breaches of fiduciary duty as disloyal acts.” Id. at *7. Counts IV to VI (breach of the duty to monitor) failed because they were derivative of Albert‘s fiduciary duty claims. Id. Counts VII to IX (prohibited transactions) failed because they were based on circular reasoning—that “an entity which becomes a party in interest by providing services to the Plan[] has engaged in a prohibited transaction simply because the Plan[] [has] paid for those services.” Id. at *8 (quoting Sacerdote v. N.Y. Univ., No. 16-cv-6284, 2017 WL 3701482, at *13 (S.D.N.Y. Aug. 25, 2017)). Finally, Albert failed to state a claim for failure to disclose because fiduciaries need not disclose detailed information about revenue sharing. Id. at *7 (citing Hecker v. Deere & Co., 556 F.3d 575, 586 (7th Cir. 2009)).
On July 2, 2021, before the entry of final judgment, the Supreme Court granted certiorari in Hughes. On September 30, 2021, Albert filed a Rule 59(e) motion to vacate the judgment and stay proceedings pending a decision in Hughes. The district court denied the motion, in large part because Albert did not seek a stay until after the entry of final judgment. Albert timely appealed.
II. Discussion
This court reviews de novo the district court‘s dismissal of the amended complaint for failure to state a claim. Larson v. United Healthcare Ins. Co., 723 F.3d 905, 910 (7th Cir. 2013). In putative ERISA class actions,
A. Standing
Before turning to the merits, we have “an independent obligation to assure that standing exists.” Pavlock v. Holcomb, 35 F.4th 581, 588 (7th Cir. 2022) (quoting Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009)).
Oshkosh argues that Albert lacks standing to bring ERISA claims challenging investment options he never held in his own investment account. In doing so, Oshkosh raises a factual challenge to standing. Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th Cir. 2009). (“[A] factual challenge lies where the complaint is formally sufficient but the contention is that there is in fact no subject matter jurisdiction.“) (internal quotation marks omitted). When considering a factual challenge to jurisdiction, courts “may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Id. (internal quotation marks omitted).
There is no serious dispute that Albert has standing with respect to the
investment option charges a different expense ratio. If Albert did not personally invest in a fund with an imprudent expense ratio, then it is difficult to see how he suffered an injury in fact. Similarly, if Albert invested solely in passively managed index funds, then excessive fees for the Plan‘s actively managed funds would not harm him.4
The amended complaint does not specify which investment options Albert actually holds, but an uncontested declaration from an Oshkosh benefits analyst makes clear that he invested in at least some actively managed funds.5 That is sufficient at this juncture to conclude Albert has standing for his investment-management fee claims. See Boley, 36 F.4th at 133 (recognizing that defendants’ “concerns regarding the representation of absent class members might implicate class certification or damages but are distinct from the requirements of
at all stages of litigation.” TransUnion, 141 S. Ct. at 2208. Information revealed during discovery could very well change the standing analysis. Furthermore, “there may be some situations where typicality for an ERISA class would not be satisfied unless the class representative invested in each of the challenged funds.” Boley, 36 F.4th at 136.
B. Duty of Prudence Claims
To state a breach of the duty of prudence under ERISA, a plaintiff must plead “(1) that the defendant is a plan fiduciary; (2) that the defendant breached its fiduciary duty; and (3) that the breach resulted in harm to the plaintiff.” Allen v. GreatBanc Tr. Co., 835 F.3d 670, 678 (7th Cir. 2016). Oshkosh does not dispute that the named Defendants are plan fiduciaries under
1. Recordkeeping Fees (Count I)
Albert‘s first duty of prudence claim is that the Plan paid Fidelity excessive recordkeeping fees by “fail[ing] to regularly solicit quotes and/or competitive bids.” For support, Albert compares publicly available data for the Plan with nine other plans that are supposedly prudent when it comes to recordkeeping fees. (ERISA and the Internal Revenue Code require the annual submission of Form 5500s for employee benefit plans.) These comparator plans have similar numbers of participants (between around 10,000 and 16,000) and total assets (between $355 million and $2.1 billion) as the Plan. Between 2014 and 2018, the comparator plans paid an average annual recordkeeping fee of $32 to $45 per plan participant. By contrast, during the same period, the Oshkosh Plan paid an average annual recordkeeping fee of $87 per participant. Based on this data, Albert argues that “a prudent Plan Fiduciary would have paid on average an effective annual [recordkeeping] fee of around $40 per participant, if not lower.”
Oshkosh responds that the amended complaint is devoid of allegations as to the quality or type of recordkeeping services the comparator plans provided. This court has repeatedly emphasized that the cheapest investment option is not necessarily the one a prudent fiduciary would select. See Loomis v. Exelon Corp., 658 F.3d 667, 670 (7th Cir. 2011) (noting that “nothing in ERISA requires every fiduciary to scour the market to find and offer the cheapest possible fund (which might, of course, be plagued by other problems)“) (quoting Hecker, 556 F.3d at 586). Defendants argue the same logic applies to recordkeeping fees, meaning that Albert cannot proceed to discovery solely on the basis that the Plan paid higher recordkeeping fees than a potentially random assortment of nine other plans from around the country.
In Divane, we rejected the notion that a failure to regularly solicit quotes or competitive bids from service providers breaches the duty of prudence. See Divane, 953 F.3d at 990-91 (holding that defendant “was not required to search for a recordkeeper willing to take $35 per year per participant as plaintiffs would have liked” (citing Hecker, 556 F.3d at 586)), vacated on other grounds by Hughes, 142 S. Ct. 737. The parties dispute whether the line of cases we relied upon in Divane—namely, Hecker and Loomis—are also under a cloud of suspicion post-Hughes.
Albert overstates the significance of HughesHughes did not hold that fiduciaries are required to regularly solicit bids from service providers. Nor did it suggest that the reasoning in Hecker
1872, 2022 WL 3355075, at *7 n.4 (7th Cir. Aug. 15, 2022). Although Hughes is still pending on remand in this court, the Sixth Circuit recently held that an ERISA plaintiff failed to state a duty of prudence claim where the complaint “failed to allege that the [recordkeeping] fees were excessive relative to the services rendered.” Smith v. CommonSpirit Health, 37 F.4th 1160, 1169 (6th Cir. 2022) (internal quotation marks omitted). The Smith court did not consider Hughes to have any bearing on the analysis of such claims, and neither do we. See also Forman v. TriHealth, Inc., 40 F.4th 443, 449 (6th Cir. 2022) (concluding plaintiffs failed to state a claim as to “overall plan fees” where “the employees never alleged that these fees were high in relation to the services that the plan provided“).
Although the district court repeatedly cited Divane in its discussion of Albert‘s recordkeeping claim, we affirm the dismissal of Count I. That claim fails under our precedent that Hughes left untouched. In so holding, we emphasize that recordkeeping claims in a future case could survive the “context-sensitive scrutiny of a complaint‘s allegations” courts perform on a motion to dismiss. Dudenhoeffer, 573 U.S. at 425. Albert‘s complaint simply does not provide “the kind of context that could move this claim from possibility to plausibility” under Twombly and Iqbal. Smith, 37 F.4th at 1169.
2. Investment-Management Fees (Count II)
Next, Albert alleges that Oshkosh breached its duty of prudence by paying unreasonably high fees to Fidelity for investment management. Recall that the Plan selected Fidelity as both its recordkeeper and its investment-management provider. As the Plan‘s recordkeeper, Fidelity received direct and indirect compensation. Indirect compensation refers to revenue-sharing arrangements in which some of the money raised via expense ratios for investment-management fees is shared with the recordkeeper. If the recordkeeper does not use all of the fees it collects through expense ratios, some of that money can be returned to participants’ individual investment accounts.
As with his recordkeeping claims, Albert compares the investment-management fees that the Plan paid to the fees that nine allegedly comparable and prudent plans paid. Albert claims that the key indication of whether investment fees are prudent is the “Net Investment Expense to Retirement Plans.” Albert defines this concept as “the share class that gives plan participants access to portfolio managers at the lowest net fee for the services of the portfolio manager.” Under this theory, “[w]hen two identical service options are readily available ... a prudent Plan Fiduciary
The problem is that the Form 5500 on which Albert relies does not require plans to disclose precisely where money from revenue sharing goes. Some revenue sharing proceeds go to the recordkeeper in the form of profits, and some go back to the investor, but there is not necessarily a one-to-one correlation such that revenue sharing always redounds to investors’ benefit. Albert‘s “net investment expense to retirement plans theory” assumes that there is such a correlation; if that assumption is wrong, then simply subtracting revenue sharing from the investment-management expense ratio does not equal the net fee that plan participants actually pay for investment management.
Complicating matters further, Count II encompasses two different duty of prudence theories. First, Albert claims that the Plan should have offered higher-cost share classes of certain mutual funds because the “net expense” of those funds would be lower in light of revenue sharing. This is the inverse of what ERISA plaintiffs typically argue—that a plan should have offered cheaper institutional share classes instead of more expensive retail share classes. Second, Albert claims that the Plan should not offer certain actively managed funds because those funds are more expensive than passively managed funds.
a. Net-Expense Theory
We agree with Oshkosh that the amended complaint does not allege sufficient facts to make this novel theory plausible. We have not found, and Albert does not cite, any court decisions crediting this theory. While a prudent fiduciary might consider such a metric, no court has said that ERISA requires a fiduciary to choose investment options on this basis. Cf. Loomis, 658 F.3d at 670 (“[N]othing in ERISA requires every fiduciary to scour the market to find and offer the cheapest possible fund (which might, of course, be plagued by other problems).“) (quoting Hecker, 556 F.3d at 586). We see no reason to impose such a requirement here. See Hughes, 142 S. Ct. at 742 (“[T]he circumstances facing an ERISA fiduciary will implicate difficult tradeoffs, and courts must give due regard to the range of reasonable judgments a fiduciary may make based on her experience and expertise.“).
b. Actively Managed Funds Theory
Albert‘s second theory is more common: that some of the Plan‘s actively managed funds were too expensive. The fact that actively managed funds charge higher fees than passively managed funds is ordinarily not enough to state a claim because such funds may also provide higher returns. See Smith, 37 F.4th at 1165 (“We know of no case that says a plan fiduciary violates its duty of prudence by offering actively managed funds to its employees as opposed to offering only passively managed funds.“); Davis v. Washington Univ. in St. Louis, 960 F.3d 478, 484 (8th Cir. 2020) (“[A] complaint cannot simply make a bare allegation that costs are too high, or returns are too low. ... Rather, it ‘must provide a sound basis for comparison—a meaningful benchmark.‘“) (quoting Meiners v. Wells Fargo & Co., 898 F.3d 820, 822 (8th Cir. 2018)).
Once again, the Sixth Circuit‘s decision in Smith reinforces that Hughes does not require a radically different approach to claims alleging excessive investment-management fees. The Smith court held that
3. Investment-Advisor Fees (Count III)
Albert alleges that the fees the Plan paid to SAI (alternately called “service provider fees” or “investment-advisor fees“) were excessive and therefore imprudent. According to Albert, “the fee rate paid to SAI was over 50 basis points for services that add no additional value compared to other alternative services available to plan participants.” SAI‘s services “provided virtually no value to some Participants and a negative value to other Participants compared to other similar services and options available in the Plan, e.g., the Fidelity Freedom Funds.” Other than this brief reference to Fidelity Freedom Funds, Albert does not explain why the fees SAI charged were excessive and unreasonable in comparison to other service providers. Instead, he alleges upon information and belief that the Plan‘s fiduciaries “did not solicit competitive bids from other service providers similar to SAI or evaluate whether other service providers could provide the same or superior benefits and services ostensibly provided by SAI, at a lower cost to Plan Participants.”
This claim is particularly thin because Albert does not provide any basis for comparison between the fees paid to SAI and fees paid to other service providers. See Davis, 960 F.3d at 484 (“[A] complaint ‘must provide a sound basis for comparison—a meaningful benchmark.‘“) (quoting Meiners, 898 F.3d at 822); Smith, 37 F.4th at 1169 (complaint failed to state a claim in the absence of allegations that “fees were excessive relative to the services rendered“). Without more, Albert has failed to state a duty of prudence claim as to the fees the Plan paid to SAI.
C. Duty of Loyalty Claims
Counts I, II, and III also purport to encompass breaches of the duty of loyalty. To recap, the duty of loyalty requires a plan fiduciary to “discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries,” with “the exclusive purpose” of “providing benefits to participants and their beneficiaries” and “defraying reasonable expenses of administering the plan.”
Albert alleges upon information and belief that “Fidelity urged Defendants to select SAI” as the Plan‘s investment advisor, thereby enabling “Fidelity to obtain additional revenue from SAI services delivered with a very high profit margin.” Albert again contends that SAI‘s services provided little to no value (or even a negative value), and he faults Defendants for failing
First, it is hard to see why Oshkosh violated its duty of loyalty when Fidelity encouraged the Plan to use SAI as its investment advisor. Albert does not allege, for example, that Fidelity gave Oshkosh kickbacks in exchange for selecting SAI. Cf. Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 590 (8th Cir. 2009) (complaint survived motion to dismiss where plaintiff alleged that “revenue sharing payments were not reasonable compensation for services rendered by Merrill Lynch, but rather were kickbacks paid by the mutual fund companies in exchange for inclusion of their funds in the Plan“). In other words, there are no allegations that Oshkosh engaged in self-dealing at the expense of the Plan. See Forman, 40 F.4th at 450 (plaintiffs failed to state duty of loyalty claim where no allegations suggested “the fiduciary‘s operative motive was to further its own interests“).
Second, to the extent that there is anything untoward about a company encouraging a customer to use its subsidiary‘s services, Fidelity is neither a named defendant nor a fiduciary.7 What matters is whether Oshkosh discharged its duties “solely in the interest of the [Plan‘s] participants and beneficiaries.”
Third, Albert has not identified any comparator investment advisors. Without allegations suggesting that the fees SAI charged are unreasonable in light of available
alternatives, Albert has failed to state a claim for breach of the duty of loyalty.8
D. Duty to Monitor Claims
Counts IV, V, and VI allege that Oshkosh breached its duty to monitor other fiduciaries with respect to record-keeping fees, investment-management fees, and service-provider fees, respectively. Albert concedes that his duty to monitor claims rise or fall with his duty of prudence and duty of loyalty claims. See, e.g., Rogers v. Baxter Int‘l Inc., 710 F. Supp. 2d 722, 740 (N.D. Ill. 2010) (noting that “several [district] courts have held that a failure to monitor claim is derivative in nature and must be premised [on] an underlying breach of fiduciary duty“). Because we affirm the dismissal of Albert‘s fiduciary duty claims, these claims fail as well.
E. Prohibited Transaction Claims
Counts VII, VIII, and IX allege that Oshkosh engaged in prohibited transactions
plan.” Harris Tr. & Sav. Bank v. Salomon Smith Barney, Inc., 530 U.S. 238, 241-42 (2000) (internal quotation marks omitted). The statute provides:
A fiduciary with respect to a plan shall not cause the plan to engage in a transaction, if he knows or should know that such transaction constitutes a direct or indirect—
(A) sale or exchange, or leasing, of any property between the plan and a party in interest;
(B) lending of money or other extension of credit between the plan and a party in interest;
(C) furnishing of goods, services, or facilities between the plan and a party in interest;
(D) transfer to, or use by or for the benefit of a party in interest, of any assets of the plan; or
(E) acquisition, on behalf of the plan, of any employer security or employer real property in violation of section 1107(a) of this title.
(A) any fiduciary (including, but not limited to, any administrator, officer, trustee, or custodian), counsel, or employee of such employee benefit plan;
(B) a person providing services to such plan; [or]
(C) an employer any of whose employees are covered by such plan;
...
Under a literal reading of
Albert‘s interpretation is also inconsistent with the purpose of the statute as a whole. See, e.g.,
Albert insists that payments by the Plan to Fidelity and SAI were nonetheless “prohibited transactions.” For support, Albert points to language in this court‘s decision in Allen v. GreatBanc Trust Co., 835 F.3d 670 (7th Cir. 2016). In Allen, participants in an employee stock ownership plan alleged that the plan‘s trustee engaged in prohibited transactions by purchasing stock from the employer (and plan sponsor) and issuing a loan to the plan to fund the stock purchase. The employer‘s stock price later plummeted, and plan participants perversely had to pay interest on the loan to their own employer. Id. at 673-74. The court concluded that both transactions “are indisputably prohibited transactions within the meaning of [§ 1106].”9 Id. at 675. The court‘s more important holding, however, was that the exemptions for prohibited-transaction claims outlined in
Albert points to Allen for the broad proposition that a plaintiff can state a prohibited-transaction claim merely by
identifying a “party in interest” under
Albert‘s argument that he need not anticipate affirmative defenses at the pleading stage is a red herring. While it is true that “an ERISA plaintiff need not plead the absence of exemptions to prohibited transactions,” Allen, 835 F.3d at 676, Oshkosh is not asserting an affirmative defense under
advising, which in all likelihood would result in lower returns for employees and higher costs for plan administration.
In short, the district court properly dismissed Albert‘s prohibited transactions claims for failure to state a claim.
F. Duty to Disclose Claim
Finally, Albert alleges that Oshkosh failed to disclose fees that are charged to participants and specifically the method of calculating revenue-sharing fees. Albert relies primarily on a Department of Labor regulation, which states in relevant part:
When the documents and instruments governing an individual account plan ... provide for the allocation of investment responsibilities to participants or beneficiaries, the plan administrator ... must take steps to ensure, consistent with [the fiduciary duties of loyalty and prudence], that such participants and beneficiaries, on a regular and periodic basis, are made aware of their rights and responsibilities with respect to the investment of assets held in, or contributed to, their accounts and are provided sufficient information regarding the plan, including fees and expenses, and regarding designated investment alternatives, including fees and expenses attendant thereto, to make informed decisions with regard to the management of their individual accounts.
As an initial matter, the Department of Labor regulation does not clearly require the kinds of disclosures Albert claims Oshkosh should have made. Albert‘s argument is also hard to square with this court‘s decision in Hecker. There, we held that plaintiffs had failed to state a breach of fiduciary duty claim on the basis of either a revenue-sharing agreement or the failure to disclose information about that agreement. Hecker, 556 F.3d at 585. The court explained that the plan administrator acted appropriately by disclosing the total fees for funds offered in the plan and directing participants to fund prospectuses for more information. “The total fee, not the internal, post-collection distribution of the fee, is the critical figure for someone interested in the cost of including a certain investment in her portfolio and the net value of that investment.” Id. at 586. Because information about how fees are distributed internally was “not material” to a participant‘s decision-making process, the failure to disclose such information was “not a breach of [] fiduciary duty.” Id.
Albert argues that Hecker is no longer good law in light of the Supreme Court‘s decision in Hughes. We agree with Oshkosh that this reading of Hughes is untenable; that decision had nothing to do with the duty to disclose. Moreover, the amended complaint does not identify any additional breaches of the duty to disclose beyond revenue sharing.11 The district court properly dismissed Albert‘s duty to disclose claim.
III. Conclusion
For the foregoing reasons, the district court‘s judgment is AFFIRMED.