Latasha Davis, Individually and as a Representative of a Class of Participants and Beneficiaries in and on Behalf of Washington University Retirement Savings Plan; Jennifer Elliott, Individually and as a Representative of a Class of Participants and Beneficiaries in and on Behalf of Washington University Retirement Savings Plan; Marla Aliece Sims-King, Individually and as a Representative of a Class of Participants and Beneficiaries in and on Behalf of Washington University Retirement Savings Plan v. Washington University in St. Louis; Washington University in St. Louis Board of Trustees
No. 18-3345
United States Court of Appeals For the Eighth Circuit
May 22, 2020
Before KELLY, MELLOY, and STRAS, Circuit Judges.
Three retirement-plan participants sued Washington University in St. Louis for breach of its fiduciary duties under the Employee Retirement Income Security Act, more commonly known as ERISA. The district court dismissed their complaint for failure to state a claim. We affirm in part, reverse in part, and remand for further proceedings.
I.
This case is just one in a series of actions filed against some of the nation‘s largest universities for alleged mismanagement of their section 403(b) retirement-savings plans. See, e.g., Divane v. Nw. Univ., 953 F.3d 980 (7th Cir. 2020); Sweda v. Univ. of Pa., 923 F.3d 320 (3d Cir. 2019); see also
With about 24,000 participants and $3.8 billion in assets, the WashU plan is one of the largest of its kind in the country. It is a defined-contribution plan, which is a type of retirement account funded by contributions from the employee, the employer, or both. The account‘s value depends on the amount of those contributions, plus any earnings from the underlying investments, minus the fees charged. In this type of plan, participants retain the ability to select their own investments from a menu of options. The risk of loss, however, remains with them, meaning that underperformance or excessive fees will chip away at their returns. See John Downes & Jordan Elliot Goodman, Barron‘s Dictionary of Finance and Investment Terms 175-76 (8th ed. 2010).
WashU‘s plan includes approximately 115 options from two investment firms, the Teachers Insurance and Annuity Association
The other category of fees is different. Administrative or record-keeping expenses pay for the day-to-day operations of the plan itself, id. at 3, which in this case used to be the responsibility of both firms, though today only TIAA provides those services across the entire plan. Some plans charge a flat fee to cover these expenses. Under this model, participants pay the same amount regardless of how much money they have invested in the plan. Id. Others, including WashU, bundle investment-management and administrative fees together. In this type of arrangement, called a “revenue sharing” model, participants effectively pay a pro rata share of administrative expenses based roughly on how much they have invested. See id.
The plaintiffs’ complaint contains two separate breach-of-fiduciary-duty claims. The first alleges that WashU allowed both types of fees to get out of control. The second asserts that it kept several underperforming investments in the plan for
too long. The district court granted WashU‘s motion to dismiss both claims. See
II.
We review the dismissal de novo, “accepting as true the allegations . . . in the complaint and drawing all reasonable inferences in favor of the nonmoving party.” Star City Sch. Dist. v. ACI Bldg. Sys., LLC, 844 F.3d 1011, 1016 (8th Cir. 2017). To survive a motion to dismiss, a complaint must contain “sufficient factual matter” to state a facially plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
ERISA imposes certain duties on fiduciaries like WashU. One is that they must act “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.”
It is important to keep in mind, however, that this case is only at the pleading stage. At this point, the complaint only needed to give the district court enough “to infer from what is alleged that
[the fiduciary‘s] methods” based on the “investment choices a plan fiduciary made” can be enough. Meiners v. Wells Fargo & Co., 898 F.3d 820, 822 (8th Cir. 2018).
A.
The first claim clears this pleading hurdle. It alleges that fees were too high and that WashU should have negotiated a better deal.
Perhaps the clearest example is Vanguard‘s “mixed” lineup of funds. By mixed, we mean that there were different share classes in its lineup, including “institutional” and “retail” shares. For some investments, Vanguard offered lower-cost institutional shares, which have higher initial investment requirements. Instead of offering these shares across its entire lineup, however, it offered retail shares for other funds, even though minimum investment requirements are “routinely waived” for individual investors in large retirement-savings plans. The failure to replace these shares with their lower-cost counterparts breached WashU‘s fiduciary duty, in the plaintiffs’ view, because higher fees led to lower overall returns. They believe, in other words, that WashU‘s lack of diligence cost them money.
We allowed similar allegations to proceed in Braden. Braden involved a retirement-savings plan filled with retail shares despite “a very large pool of assets” and a “highly competitive” marketplace. 588 F.3d at 595. Taken together, we concluded that these facts were enough to create an inference of a “flawed” process, even if the complaint itself did not “directly address[]” how the plan made its selections. Id. at 596.
We reach the same conclusion here. The complaint alleges that the marketplace for retirement plans is competitive, and with $3.8 billion invested, WashU‘s “pool of assets” is large. From these facts, two inferences of mismanagement are plausible from WashU‘s failure to offer more institutional shares. The first is that it failed to gain access to them because, as the complaint
alleges, it did not negotiate aggressively enough with Vanguard. The second is that it was asleep at the wheel: it failed to pay close enough attention to available lower-cost alternatives. Either way, a “failure of effort [or] competence” is enough to state a claim for breach of the duty of prudence. Id.
WashU has two responses. One is that a plan without retail shares would not have covered the plan‘s costs because, according to WashU, institutional shares do not make large enough revenue-sharing payments. The other is that, with a more competitive marketplace and growth in the plan‘s total assets, it has demonstrated diligence by shifting into more institutional shares over time. Taken together, it says, the only plausible inference is that it has prudently managed the plan by negotiating for the best possible deal under the circumstances.
WashU has identified one plausible inference, but it is not the only one. On a motion to dismiss, we must draw every reasonable inference in favor of the plaintiffs. See Sabri v. Whittier All., 833 F.3d 995, 998 (8th Cir. 2016). So the fact that mismanagement is another plausible inference means that this claim cannot end here. See Whitney v. Guys, Inc., 700 F.3d 1118, 1130 (8th Cir. 2012) (“[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is
B.
We reach the opposite conclusion on the other claim, which puts the spotlight on three specific investment options. According to the complaint, WashU should have jettisoned them because they were poor performers and cost too much.
A fiduciary can breach its duty of prudence if it fails to monitor and remove imprudent investment options. See Tibble v. Edison Int‘l, 135 S. Ct. 1823, 1829 (2015). It is no defense to simply offer a “reasonable array” of options that includes some good ones, see Tussey v. ABB, Inc., 746 F.3d 327, 335-36 (8th Cir. 2014), and then “shift[]” the responsibility to plan participants to find them. Hecker v. Deere & Co., 569 F.3d 708, 711 (7th Cir. 2009).
For an investment-by-investment challenge like this one, a complaint cannot simply make a bare allegation that costs are too high, or returns are too low. Meiners, 898 F.3d at 822. Rather, it “must provide a sound basis for comparison—a meaningful benchmark.” Id. In Braden, a combination of a “market index and other shares of the same fund” met this requirement, but there is no one-size-fits-all approach. Id. (emphasis added) (discussing Braden, 588 F.3d at 595-96). Plausibility depends on the “totality of the specific allegations in [each] case.” Id. (citation omitted).
1.
The first investment is TIAA Real Estate Account. According to the prospectus, its “principal strategy is to purchase direct ownership interests in income-producing real estate, primarily office, industrial, retail and multi-family properties.”3 (Emphasis added). In other words, its holdings consist of numerous individual properties like malls, office buildings, and apartment complexes.
The complaint points to another plan offering—the Vanguard REIT Index Fund—as a possible benchmark, but it is different. In contrast to TIAA Real Estate
Account‘s direct-purchasing strategy, Vanguard REIT Index Fund “employs an indexing investment approach designed to track the performance” of an index “composed of stocks of publicly traded equity real estate investment trusts.” (Emphasis added). It invests in intermediaries, various real-estate companies, which in turn manage a portfolio of actual real-estate assets. TIAA Real Estate Fund, by contrast, just cuts out the middleman and holds the real-estate assets itself. This is the first difference between the two investments.
The second is that their management approaches differ. TIAA Real Estate Account is actively managed—meaning that professional investment managers try to beat the market through picking individual investments—and Vanguard REIT Index Fund is not. See Downes & Goodman, supra, at 9-10. In fact, the latter is indexed, which is a form of passive management that tries to mimic a market index, in this case one full of real estate investment
It is true that some analysts think it is better for investors to put their money in real estate investment trusts rather than real estate itself. And it might even be better still to do so through an index fund rather than an actively managed portfolio. But it is not imprudent for a fiduciary to provide both investment options. See Meiners, 898 F.3d at 823-24. They have different aims, different risks, and different potential rewards that cater to different investors. Comparing apples and oranges is not a way to show that one is better or worse than the other. See id. at 823.
2.
The second investment is CREF Stock Account, which “invests at least 80% of its assets in [a] broadly diversified portfolio of common stocks.” It is a variable
annuity, which is technically an insurance contract, but it behaves similarly to a mutual fund. As the value of the underlying holdings goes up, so does the price of the contract. See Downes & Goodman, supra, at 808.
Once more, the complaint points to index funds as a potential benchmark. Yet again, the complaint is comparing apples and oranges. Index funds are passively managed, whereas CREF Stock Account has an actively managed component. In fact, it uses a “combination” of management strategies, including a “proprietary, quantitative modeling” approach with “mathematical models and computer programs” in an effort to beat the market. The biggest difference, however, is that variable annuities can provide a steady stream of income at retirement—what TIAA calls “income for your life“—and mutual funds do not. Even if stock index funds will typically outperform a variable annuity like CREF Stock Account, as the complaint alleges, it is not imprudent to provide options with differing features from which to choose, regardless of whether some perform better than others.4 See Renfro v. Unisys Corp., 671 F.3d 314, 327 (3d Cir. 2011).
In one last effort to find a truly comparable benchmark, the complaint also points to three actively managed funds: Vanguard PRIMECAP, Vanguard Capital Opportunity, and Vanguard Diversified Equity. They are closer, but not close enough. CREF Stock Account has holdings from around the globe, with around
30% of its portfolio invested in international securities. The other funds, by contrast, have a lower percentage of international stocks. With such a comparatively large portion of its portfolio in international stocks, CREF Stock Account is essentially a one-stop shop for those investors who want broad exposure to both domestic and international equities. This does not mean it is necessarily
Moreover, even if one of these other actively managed funds were an appropriate benchmark, the complaint fails to connect the dots in a way that creates an inference of imprudence. There is no question, as the complaint alleges, that CREF Stock Account performed more poorly than they did over certain periods of time. But fiduciaries are not required to pick “the best performing fund.” Id. (emphasis added). Nor are they required to pick the lowest-cost fund, particularly when the expense-ratio differences are small—here, between just .06 and .11 percentage points. See id. (“[T]he existence of a cheaper fund does not mean that a particular fund is too expensive in the market generally or that it is otherwise an imprudent choice.“); Braden, 588 F.3d at 596 n.7 (“[N]othing in ERISA requires every fiduciary to scour the market to find and offer the cheapest possible fund.” (quoting Hecker v. Deere & Co., 556 F.3d 575, 586 (7th Cir. 2009))). The bottom line is that there is simply not enough in the complaint to infer that a reasonably prudent fiduciary would have refused to stick with CREF Stock Account.5
3.
The final investment is distinct from everything else in WashU‘s plan. It also happens to be the most popular option. TIAA Traditional Annuity, which is a fixed-annuity contract, promises a guaranteed stream of payments for life at retirement. Unlike a variable-annuity contract, in which the size of the payments depends in part on the performance of the underlying securities, TIAA bears any downside risk by guaranteeing a fixed minimum return. Compare Downes & Goodman, supra, at 268, with id. at 808.
Despite these advantages, the complaint stresses one important drawback: how difficult it is to pull money out. A withdrawal or transfer is paid in ten annual installments, unless the participant is willing to pay a “substantial penalty,” or in the event of termination of employment, a 2.5% surrender charge.
In light of this drawback, the complaint alleges that WashU should not have offered TIAA Traditional Annuity as an option.6 Yet again, the complaint fails to provide a meaningful benchmark. See Meiners, 898 F.3d at 822. It does not identify even one other investment with a similar risk-and-reward profile that offers better terms than TIAA Traditional Annuity.
A unique investment option like this one shows why a meaningful benchmark is so important. Some investors are perfectly willing to trade liquidity and higher returns
ERISA defined contribution plan is designed to offer participants meaningful choices about how to invest their retirement savings“).
III.
We affirm in part, reverse in part, and remand for further proceedings.