ORDER
Plaintiffs Delilah Morrison and Sherri Arguello invested in a retirement plan (“the Plan”) sponsored by their former employer, defendant MoneyGram International, Inc. (“MoneyGram”) and established pursuant to the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq. Plaintiffs bring this putative class action against various Plan fiduciaries, including MoneyGram itself, the MoneyGram International Inc. Pension and 401(k) Committee (“the Committee”), and various named and unnamed corporate officers and directors. Plaintiffs allege that defendants breached various fiduciary duties, and that those breaches resulted in losses for which defendants are now liable to the Plan under §§ 1109 and 1132(a)(2). 1 Plaintiffs also seek injunctive and monetary relief for a class of participants and beneficiaries under § 1132(a)(3).
This matter is before the Court on defendants’ motion to dismiss for lack of subject-matter jurisdiction under Fed. R.Civ.P. 12(b)(1) and for failure to state a claim under Fed.R.Civ.P. 12(b)(6). Defendants’ motion raises a number of difficult legal issues, some of which have divided the federal courts. For the reasons stated below, the Court grants defendants’ motion with respect to Count IV and denies it in all other respects.
A. The Plan
MoneyGram is the sponsor and administrator of the Plan, which was established on July 1, 2004 (the first day of the proposed class period). Am. Compl. ¶¶ 3, 42, 53, 59; Swanson Decl. Ex. B § 1.1 (hereinafter “Plan § -”). The Plan incorporates a trust agreement (“the Trust”) between MoneyGram and the Plan trustee, T. Rowe Price Trust Company. Am. Compl. ¶42; Plan § 1.1; McKenna Decl. Ex. A (hereinafter “Trust § -”). The Committee is the “named fiduciary” of the Plan within the meaning of § 1102(a). Plan § 8.1. All of the individual defendants are alleged to be Plan fiduciaries within the meaning of § 1002(21)(A). In this Order, the Court will sometimes refer to defendants collectively as “MoneyGram.” 2
The Plan is a “defined contribution” or “individual account” plan within the meaning of § 1002(34). Am. Compl. ¶ 40. The Plan is funded by contributions from individual participants and from their employer, MoneyGram. Am. Compl. ¶¶ 41, 48. The Plan offers several investment funds, including the Employer Stock Fund, which invests solely in MoneyGram stock. Plan § 7.2(c). Participants may choose to invest their individual contributions in any fund offered by the Plan, with the exception of the Employer Stock Fund. That fund is reserved for employer contributions. 3 Plan § 7.2(c).
MoneyGram has committed to match participants’ contributions to the Plan up to a certain level, and MoneyGram may choose to make additional profit-sharing contributions to the Plan. Am. Compl. ¶ 48; Plan § 4.1. Until March 14, 2008, when the Employer Stock Fund was closed to additional investments, MoneyGram’s matching and profit-sharing contributions were initially invested in the Employer Stock Fund. Am. Compl. ¶¶ 48, 50; Plan § 7.3(a). A participant could then transfer the contributions that MoneyGram had made on her behalf to any of the other funds, or she could leave those contributions in the Employer Stock Fund. Swanson Decl. Ex. C at 17 (hereinafter “SPD at-”).
B. MoneyGram
MoneyGram is a large company that provides money-transfer and other financial services to customers around the world. MoneyGram was incorporated in December 2003, and its common stock began trading on the New York Stock Exchange on July 1, 2004. Am. Compl. ¶¶ 14, 70-71. MoneyGram is a spinoff of a subsidiary of another company, Viad Corp. (“Viad”). MoneyGram assumed all liabilities for retirement benefits for certain current and former Viad employees. Am. Compl. ¶¶ 70-71.
According to plaintiffs, MoneyGram’s business model is “predicated upon acquiring high interest long-term assets with relatively low interest short-term money.” Am. Compl. ¶ 76. MoneyGram’s goal is to “generate arbitrage income, as measured by the difference between the relatively low interest paid to the short-term commercial paper creditors and the higher interest to be received by MoneyGram on its long-term investments.” Am. Compl. ¶ 76. Toward that end, MoneyGram invested hundreds of millions of dollars in mortgage-backed securities, Am. Compl. ¶¶ 65, 72 — money that MoneyGram had
As of June 30, 2004, mortgage-backed securities made up approximately two-thirds of MoneyGram’s investment portfolio. Am. Compl. ¶ 72. As of the same date, MoneyGram’s investment portfolio had suffered nearly $12 million in long-sustained losses — that is, losses of one year or longer in duration. Am. Compl. ¶ 72. Under Generally Accepted Accounting Principles (“GAAP”), a company may exclude from the calculation of net income the unrealized losses suffered on an investment in a security if (1) the losses .are temporary (or, in accounting parlance, not “other than temporary”), and (2) the security is “held to maturity,” meaning that the company has the intent and ability to hold the security until it matures. Am. Compl. ¶¶ 73-74.
MoneyGram chose to treat its unrealized losses as temporary and its mortgage-backed securities as “held to maturity” under GAAP. Am. Compl. ¶ 75. As a result, MoneyGram excluded those unrealized losses when computing its net income. Am. Compl. ¶ 75. Plaintiffs allege that this accounting treatment was improper both because the losses that MoneyGram sustained on the mortgage-backed securities were “other than temporary” and because MoneyGram did not have the ability to hold these assets until maturity. Am. Compl. ¶ 77. As a result, plaintiffs allege, MoneyGram materially understated its recognized losses and thereby materially overstated its net income. Am Compl. ¶ 77.
When a company excludes unrealized losses from the calculation of its net income under GAAP, the company is nevertheless required to calculate and disclosé those losses. Am. Compl. ¶ 73. Plaintiffs allege that, in addition to materially understating the losses that it should have recognized (i.e., the losses that, under GAAP, should have been reflected in reductions to net income), MoneyGram also materially understated its unrealized losses (i.e., the losses that, under GAAP, were properly ignored when calculating net income). Am Compl. ¶¶ 87-92. For example, plaintiffs allege that MoneyGram disclosed $100 million in unrealized losses on certain securities as of November 30, 2007, but when it sold those same securities in January 2008, MoneyGram realized $200 million in losses — double the amount that it had disclosed just a few weeks earlier. Am. Compl. ¶¶ 90-91.
In late 2007, Euronet Worldwide, Inc. offered to buy MoneyGram for $20 per share (which represented a premium of about 43% over the closing price on the day of the offer). MoneyGram rejected the offer. Am. Compl. ¶¶78, 137-145. A short, time later, on January 14, 2008, MoneyGram announced that it had completed the valuation of its investment portfolio as of November 30, 2007, and had experienced additional unrealized net losses of $571 million since September 30, 2007, bringing cumulative net unrealized losses to $860 million.. Am. Compl. ¶ 69. Immediately after this announcement, MoneyGram’s stock lost nearly half its value. Am. Compl. ¶ 69. In the same press release, MoneyGram announced that it was engaged in negotiations with new investors for a capital infusion; ultimately, these new investors purchased a majority stake in MoneyGram for around $760 million. Am. Compl. ¶¶ 116,119.
By March 2008, MoneyGram had lost about $1.6 billion on its investments in mortgage-backed securities, and its stock had lost 92% of its value over the preceding year. Am. Compl. ¶ 119. After MoneyGram disclosed these losses, the SEC opened an investigation into MoneyGram’s previous financial statements. Am. Compl. ¶ 119. As of the date of the filing
C. Fiduciary Communications
Plaintiffs allege that a number of communications made by defendants during the class period were fiduciary communications governed by ERISA. Those communications include all of MoneyGram’s public SEC filings and all of the press releases that were incorporated into those filings. Plaintiffs allege that these purported fiduciary communications included inaccurate information about MoneyGram’s investment portfolio. Specifically, plaintiffs allege that these purported fiduciary communications inaccurately reported that MoneyGram had the ability to hold its investments long-term, materially understated MoneyGram’s unrealized losses, failed to acknowledge that MoneyGram’s losses were “other than temporary,” improperly represented that MoneyGram’s losses were due to temporary market conditions, and failed to include disclosures that would enable Plan participants to assess the quality of MoneyGram’s investment portfolio. Am Compl. ¶ 106.
D. The Plaintiffs
Both of the named plaintiffs — Morrison and Arguello — “cashed out” of the Plan before the price of MoneyGram stock plummeted in the wake of the January 14, 2008 disclosures about the magnitude of the company’s investment losses. Arguello was terminated by MoneyGram in June 2007 and received a full distribution of her Plan account in December 2007. Second Swanson Decl. ¶ 3. At the time Arguello received her distribution, MoneyGram stock was trading at $14.897 per share. Second Swanson Deck ¶ 3. Morrison left her employment with MoneyGram in mid-October 2007 and received a full distribution of her Plan account about a week later. Swanson Deck ¶ 3. At the time Morrison received her distribution, Money-Gram stock was trading at $15.8486 per share. Swanson Deck ¶ 3.
II. ANALYSIS
A. Rule 12(b)(1)
Plaintiffs bring their claims under §§ 1132(a)(2) and (3), both of which authorize actions by a “participant” in an ERISA plan. ERISA defines a “participant” as follows:
The term “participant” means any employee or former employee of an employer, or any member or former member of an employee organization, who is or may become eligible to receive a benefit of any type from an employee benefit plan which covers employees of such employer or members of such organization, or whose beneficiaries may be eligible to receive any such benefit.
§ 1002(7). Courts have held that, to be a “participant” in an employee-benefit plan for purposes of §§ 1132(a)(2) and (3), a plaintiff must have a colorable claim for vested benefits under that plan.
Adamson v. Armco, Inc.,
MoneyGram argues that, because Morrison and Arguello “cashed out” of the Plan, neither is a “participant” for purposes of §§ 1132(a)(2) and (3), and thus neither has standing to maintain this action. Money-Gram therefore moves under Rule 12(b)(1) to dismiss plaintiffs’ complaint for lack of subject-matter jurisdiction.
Cf. Faibisch v. Univ. of Minn.,
This Court and several other federal courts have recently held that the question of whether a plaintiff is a “participant” in an employee-benefit plan for purposes of
If these courts are correct, then Money-Gram’s argument that plaintiffs are not “participants” should be analyzed under Rule 12(b)(6) (or Rule 56) rather than Rule 12(b)(1). But plaintiffs have not objected to MoneyGram’s characterization of this issue as jurisdictional, nor have they objected to the Court’s consideration of matters outside the pleadings, 4 nor have they asked the Court to defer ruling on Money-Gram’s motion until plaintiffs have had an opportunity to take discovery. Given that the parties do not dispute any of the facts relevant to the question of whether plaintiffs are “participants” within the meaning of §§ 1132(a)(2) and (3), it simply does not matter whether the Court analyzes this question under Rule 12(b)(1), 12(b)(6), or 56. The dispute is purely legal, and the legal question will be answered the same no matter what procedural rule applies.
As noted earlier, the Plan is a “defined contribution” plan within the meaning of § 1002(34). The Supreme Court recently held that a participant in a defined-eontribution plan may bring a breach-of-fiduciary-duty claim under § 1132(a)(2) for alleged losses to the participant’s individual account.
See LaRue v. DeWolff Boberg & Assocs., Inc.,
— U.S. -,
In
Harzewski,
the plaintiffs were former employees of Guidant who brought claims under § 1132(a)(2) against various fiduciaries of Guidant’s defined-contribution plan. The plaintiffs contended that the fiduciaries had acted imprudently in failing to dispose of allegedly overvalued Guidant stock that was held in the plan.
Harzewski,
The Seventh Circuit noted that some courts have held, in similar cases, that the recovery sought by a cashed-out participant in a defined-contribution plan is not a “benefit” but rather “damages.”
Harzewski,
Suppose Guidant had stolen half the money in a plan participant’s retirement account and a suit by the participant resulted in a judgment for that amount; the suit would have established the retiree’s eligibility for the larger benefit. There is no difference if instead of stealing the money from the account, Guidant by imprudent management caused the account to be half as valuable as it would have been under prudent management. The benefit in a defined-contribution pension plan is, to repeat, just whatever is in the retirement account when the employee retires or whatever would have been there had the plan honored the employee’s entitlement, which includes an entitlement to prudent management.
Id.
at 804-05.
Cf. Harold Ives Trucking Co. v. Spradley & Coker, Inc.,
The facts and allegations in this case mirror the facts and allegations in
Harzewski.
Like Morrison and Arguello, the plaintiffs in
Harzewski
were former employees who brought claims under § 1132(a)(2) alleging that the defendants breached their fiduciary duties by retaining overvalued employer stock in the plan. Also like Morrison and Arguello, the plaintiffs in
Harzewski
sought the difference between what they actually received when they cashed out and what they would have received but for the defendants’ breaches of their fiduciary duties. True, the
Harzewski
plaintiffs did not cash out of the plan until after their initial complaint was filed, whereas Morrison and Arguello cashed out before filing their initial complaint. But in reversing the district court’s dismissal for lack of standing, the Seventh Circuit did not rely on the fact that the plaintiffs had not yet cashed out when they filed their initial complaint. Instead, the Seventh Circuit clearly held that the plaintiffs were “participants” because,
Under Harzewski, then, Morrison and Arguello would unquestionably be deemed to be “participants” for purposes of §§ 1132(a)(2) and (3). The fact that, in LaRue, the Supreme Court similarly held that a cashed-out plaintiff was a “participant” — and expressly relied on Harzewski — would seem to dispose of MoneyGram’s contention that Morrison and Arguello lack standing.
MoneyGram argues, though, that
LaRue
did not really hold that former employees who have cashed out of a defined-contribution plan have a colorable claim for benefits. Instead, MoneyGram argues, the Supreme Court’s footnote was ambiguous about whether the plaintiff in
LaRue
remained a participant in the plan. Because the Supreme Court did not resolve the issue, MoneyGram argues, this Court is bound to follow the Eighth Circuit’s decisions in
Adamson v. Armco, Inc.,
The Court respectfully disagrees with these courts and holds that, under
LaRue,
the plaintiffs in this case have standing. The defendants’ motion to dismiss in
La-Rue
rested on the argument that, after cashing out, the plaintiff had “no legally cognizable interest in the outcome of the case.” Motion to Dismiss the Writ at 2,
LaRue v. DeWolff, Boberg & Assocs., Inc.,
— U.S. -,
The Supreme Court rejected this argument, unambiguously holding that “the case is not moot.”
LaRue,
In light of what the defendants argued in asking that LaRue be dismissed as moot, in light of the Supreme Court’s unambiguous holding that “the case is not moot,” in light of the Supreme Court’s explanation of its holding, and in light of the Supreme Court’s citation of Harzewski (and only Harzewski) in support of its holding, this Court cannot agree with MoneyGram that LaRue somehow left open the question of whether the cashed-out plaintiff was a “participant” for purposes of §§ 1132(a)(2) and (3).
MoneyGram also suggests that LaRue turned on the fact that, at the time the plaintiff filed suit, he had not yet cashed out of his retirement plan. But LaRue did not even mention that fact. Moreover, LaRue cited Harzewski, in which the Seventh Circuit pointedly declined to rely on the fact that the plaintiffs had not cashed out until after filing their initial complaint. More importantly, the fact that the plaintiff in LaRue had standing at the time his suit was filed does not, as MoneyGram implies, suggest that his case could not later be dismissed as moot. The latter in no way follows from the former.
The bottom line is that the defendants in LaRue argued that, at the moment the plaintiff cashed out, the plaintiff no longer had a colorable claim for benefits or any other legally cognizable interest in the outcome of the case. The Supreme Court rejected the argument, holding that, because the plaintiff continued to have a colorable claim for benefits even after cashing out, the case was not moot, and the plaintiff was a “participant” for purposes of §§ 1132(a)(2) and (3). That holding controls the outcome in this case and compels a conclusion that, like the plaintiffs in LaRue and Harzewski, Morrison and Arguello are “participants” with color-able claims to vested benefits.
In a final effort to get out from under
LaRue,
MoneyGram contends that a Supreme Court decision on a motion
to
dismiss as moot is extraneous to the issues that the Supreme Court accepted for review and therefore is not binding on lower courts. Not surprisingly, MoneyGram cites no authority that supports its contention that a holding of the Supreme Court regarding mootness binds the lower federal courts only if the Supreme Court issued a writ of certiorari to address the issue of mootness. In
Thompson v. Paasche,
The other case that MoneyGram cites—
Martinez v. City of Oxnard,
In sum, this Court holds that, under LaRue, Morrison and Arguello both have a colorable claim for vested benefits and therefore' are “participants” in the Plan with the right to bring suit against Money-Gram under §§ 1132(a)(2) and (3). MoneyGram’s motion to dismiss for lack of subject-matter jurisdiction is denied.
B. Rule 12(b)(6)
MoneyGram argues that, even if plaintiffs have the right to sue under §§ 1132(a)(2) and (3), their claims must be dismissed on the merits under Fed. R.Civ.P. 12(b)(6). In reviewing a Rule 12(b)(6) motion, a court accepts as true all factual allegations in the complaint and draws all reasonable inferences in the plaintiffs favor.
Aten v. Scottsdale Ins. Co.,
Ordinarily, if the parties present, and the court considers, matters outside of the pleadings, a Rule 12(b)(6) motion must be treated as a motion for summary judgment. Fed.R.Civ.P. 12(d). But the court may consider materials that are necessarily embraced by the complaint (such as the Plan, the SPD, and the Trust), as well as any exhibits attached to the complaint, without converting the motion into one for summary judgment.
Mattes,
1. The Scope of a Fiduciary’s Duties under ERISA
The fiduciaries of an ERISA plan have responsibilities to the participants and beneficiaries of the plan that are similar to the responsibilities imposed on fiduciaries under the common law of trusts.
See Pegram v. Herdrich,
Under ERISA, a plan fiduciary’s responsibilities include the following:
(1) Subject to sections 1103(c) and (d), 1342, and 1344 of this title, a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and—
(A) for the exclusive purpose of:
(i) providing benefits to participants and their beneficiaries; and
(ii) defraying reasonable expenses of administering the plan;
(B) 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;
(C) by diversifying the investments of the plan so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so; and
(D)in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this subchapter and subchapter III of this chapter.
§ 1104(a)(1). The duties set forth in § 1104(a) are commonly referred to as the duty of prudence, the duty of loyalty, the duty to diversify, and the duty to follow the terms of the plan.
See Brown v. Am. Life Holdings, Inc.,
Not all of these duties are imposed on every benefit plan governed by ERISA. In particular, a defined-contribution plan known as an “eligible individual account plan” (or “EIAP”) — such as the Plan that is the subject of this litigation — -is exempt from several of the requirements that ERISA generally imposes on benefit plans.
See
§ 1107(d)(3) (defining EIAPs). For example, EIAPs are not subject to the 10% cap on investments in employer stock, § 1107(b)(1), and ERISA’s prohibitions against dealing with a party in interest and self-dealing do not apply to an EIAP’s acquisition or sale of employer stock, § 1108(e). In addition — and critically for purposes of this case — an EIAP’s acquisition or holding of employer stock cannot be the basis of a claim that a fiduciary has violated the duty to diversify: “In the case of an eligible individual account plan ... the diversification requirement of paragraph (1)(C) and the prudence requirement (only to the extent that it requires diversification) of paragraph (1)(B) is not violated by acquisition or holding of qualifying employer real property or qualifying employer securities .... ” § 1104(a)(2).
2. Count I
In Count I of the amended complaint, plaintiffs allege that defendants breached their duty of prudence by investing Plan assets in MoneyGram stock, which plaintiffs allege was an imprudent investment. 6 MoneyGram argues that Count I fails to state a claim because, pursuant to the documents governing the Plan, Money-Gram was legally obligated to invest all employer contributions in MoneyGram stock. According to MoneyGram, that fact alone requires the dismissal of Count I. Even if it does not, MoneyGram argues that defendants are at least entitled to a presumption that the investments in MoneyGram stock were prudent, and plaintiffs cannot overcome this presumption — and thus cannot state a claim — unless they allege facts demonstrating that Money-Gram’s continued viability as a company was in jeopardy. Because plaintiffs have failed to allege such facts, MoneyGram contends, Count I must be dismissed.
a. Whether the Plan Requires Investment in the Employer Stock Fund
The first question that must be resolved is whether, as MoneyGram alleges, it simply had no choice but to invest its employer contributions in MoneyGram stock. MoneyGram points to Article 7 of the Plan, which states, in relevant part:
7.2 Employee Selected Investment Options, Investment Funds.
(a) Each Participant shall designate the Investment Fund(s), established pursuant to paragraph (b) below, to which amounts allocated to the Participant’s Accounts, (including his or her MoneyGram Match Account, Prior Company Match Account and Profit Sharing Account) are to be invested.
(b) The Committee shall direct the Trustee to establish three (3) or more Investment Funds. The Committee also may direct the Trustee to change the number and type of Investment Funds made available under the Plan from time to time, without the necessity of Board action or Plan Amendment.
(c) Three of the Investment Funds under the Plan are the FINOVA Stock Fund, the Viad Stock Fund, and the Employer Stock Fund consisting, respectively, of FINOVA Stock, Viad Stock, and Employer Stock....
7.3 Investment Elections for Future Contributions.
(a) ____Amounts allocated to a Participant’s MoneyGram Match Account and Profit Sharing Account are initially invested in the Employer Stock Fund. Such amounts remain invested in the Employer Stock Fund until a Participant transfers all or a portion (in no less than one percent (1%) increments) of his MoneyGram Match Account and Profit Sharing Account to any of the then available Investment Funds.
MoneyGram argues that the language of § 7.3(a) plainly requires that employer contributions be invested in the Employer Stock Fund, which, MoneyGram points out, must consist solely of MoneyGram common stock. See Plan § 2.1(dd), (ee) (defining “Employer Stock” to mean MoneyGram common stock and “Employer Stock Fund” to mean “the Investment Fund established pursuant to section 7.2 which invests in Employer Stock”); Plan § 2.1(rr), (ss) (defining “MoneyGram Match’’ to mean an employer contribution made pursuant to § 4.1(b) of the Plan and “MoneyGram Match Account” to be the account maintained to record a participant’s share of MoneyGram Match); Plan § 2.1(ddd), (eee) (defining “Profit Sharing Contribution” to mean an employer contribution made pursuant to § 4.1(c) of the Plan and a “Profit Sharing Account” to be the account maintained to record a participant’s share of Profit Sharing Contributions).
MoneyGram is correct that, when read in isolation, § 7.3(a) does indeed seem to require that employer contributions be invested in the Employer Stock Fund. But when § 7.3(a) is read in the context of the Plan as a whole, its meaning is less clear. Under § 7.2(b), “[t]he Committee ... may direct the Trustee to change the number and type of Investment Funds made available under the Plan from time to time, without the necessity of Board action or Plan Amendment.” Plan § 7.2(b). Given that the Employer Stock Fund referenced in § 7.3(a) is defined as an “Investment Fund” under § 7.2(c), the Committee arguably had the authority to discontinue the Employer Stock Fund altogether under § 7.2(b).
Indeed, as plaintiffs point out, there is evidence that MoneyGram thought that the language of § 7.2(b) granted exactly that'power to the Committee. In January 2008, MoneyGram amended § 7.2(c) of the Plan to read, in relevant part:
Notwithstanding the Committee’s authority under section 7.2(b) to establish, change or remove Investment Funds, the Plan shall maintain one Investment Fund that is invested exclusively in Employer Stock (the “Employer Stock Fund”)....
Second Swanson Decl. Ex. E § 1. Money-Gram would not have amended § 7.2(c) to forbid- the Committee from discontinuing the Employer Stock Fund unless Money-Gram believed that the Committee had the authority to discontinue the Employer Stock Fund — or at least that § 7.2(b) was ambiguous on the question.
The fact that MoneyGram apparently believed that the pre-amendment version of the Plan granted the Committee the power to discontinue the Employer Stock Fund is particularly significant because the Plan grants the Committee the power to interpret the Plan and resolve any ambiguities in it.
See
Plan §§ 8.10(b), 8.12. This provision is apparently a delegation of MoneyGram’s discretion to interpret the Plan.
See
SPD at 1. At the very least, the pre-amendment version of § 7 of the Plan — which was the version in effect during the time period relevant to this case— was ambiguous with respect to the extent of the Committee’s power to discontinue the Employer Stock Fund. This ambiguity
Aside from the ambiguity in § 7 of the Plan, there is language in another section of the Plan that supports plaintiffs’ argument that employer contributions were not required to be invested in the Employer Stock Fund. Under § 8.10(o) of the Plan, the Committee has the discretion “[tjemporarily to delay, suspend, or prohibit ... Investment Elections, changes in Investment Elections, transfer of assets, or any other transaction under the Plan for any purpose that the Committee, in its sole discretion, deems lawful (e.g. a fiduciary concern ...).” Plan § 8.10(o) (emphasis added). This broad language can easily be read to permit the Committee to suspend or prohibit further investments in the Employer Stock Fund.
Finally, plaintiffs point to language in the Trust — -which is incorporated into the Plan, see Plan § 1.1 — that imposes on MoneyGram the duty of “[determining the suitability of and selecting every investment offered as an option under the Plan, including but not limited to Qualifying Employer Securities....” Trust § 4.1(g). MoneyGram argues that the purpose of § 4.1(g) is to make clear the division of authority between MoneyGram and the Trustee. Specifically, the provision makes clear that the Trustee has no hand in selecting the investments offered in the Plan. Rather, that function belongs to MoneyGram acting in its capacity as the Plan sponsor, and not in its capacity as a Plan fiduciary.
MoneyGram’s interpretation, however, is undermined by the beginning of § 4.1, which states that the duties defined in § 4.1 may be carried out by MoneyGram acting through the named fiduciary. The fact that MoneyGram could delegate its responsibility for determining the suitability of Plan investments to a fiduciary suggests that this function may have been a fiduciary one.
Cf. DiFelice v. U.S. Airways, Inc.,
Contrary to MoneyGram’s contentions, then, the Plan did not clearly require MoneyGram to invest all employer contributions in the Employer Stock Fund. In fact, the provisions of the Plan identified above point to the opposite conclusion. The Plan is ambiguous, making it impossible for the Court to determine the meaning of the Plan in response to a Rule 12(b)(6) motion. Thus, insofar as MoneyGram’s motion to dismiss relies on the contention that it had no alternative but to invest employer contributions in the Employer Stock Fund, MoneyGram’s motion is denied.
To be clear: The Court is holding only that the Plan is ambiguous. It is possible that, after discovery is concluded, Money-Gram will be able to persuade the Court on motion for summary judgment or at trial that MoneyGram was indeed required to invest all employer contributions in the Employer Stock Fund. If MoneyGram ulti
b. The Presumption of Prudence
The parties next dispute whether MoneyGram’s decision to continue investing employer contributions in the Employer Stock Fund is entitled to a presumption of prudence and, assuming that such a presumption applies, whether plaintiffs’ allegations are sufficient to overcome it.
A presumption of prudence was first applied to a fiduciary’s decision to continue investing in employer stock in the landmark case of
Moench v. Robertson,
Plaintiffs argue that
Moench
is inapplicable because it concerned an ESOP, whereas the plan at issue in this case is an EIAP.
See In re Westar Energy, Inc. ERISA Litig.,
No. 03-4032,
It is true that ESOPs, unlike EIAPs in general, are designed to invest
primarily
in employer stock. § 1107(d)(6)(A). But it is difficult to know why that would justify applying the
Moench
presumption to ESOPs, but not to other EIAPs. ERISA expressly exempts all EIAPs — ESOPs and non-ESOPs alike — from the duty to diversify. In other words, a plaintiff cannot seek to hold a fiduciary liable for the
extent
to which any EIAP invests in employer stock. Such a claim would challenge the mix
of
assets held by an EIAP,
The next question, then, is what type of allegations are necessary to overcome the Moench presumption. MoneyGram argues that, to overcome the presumption of prudence, a plaintiff must allege that the employer was on the verge of collapse. Plaintiffs have a threefold response: first, plaintiffs argue that the presumption is not applicable at the pleading stage; second, plaintiffs argue that they need not allege that the employer is on the verge of collapse, but only that a prudent fiduciary would have made a different investment decision; and finally, plaintiffs argue that they have met the burden of alleging that MoneyGram was on the verge of collapse.
Plaintiffs’ first argument is easily overcome. Under
Bell Atlantic,
plaintiffs must allege facts sufficient to “raise a right to relief above the speculative level.... ”
As for plaintiffs’ second contention — that the presumption can be overcome merely by showing that a prudent fiduciary would have made a different investment decision — such a standard would render the presumption meaningless.
Cf. Moench,
Whether plaintiffs must allege that the employer was on the verge of collapse to overcome the
Moench
presumption is a closer question. Although there is language in some cases suggesting that such an allegation is necessary, recent decisions have stopped short of requiring it. In other -words, although everyone agrees that proving that the employer was on the verge of collapse is
one
way to overcome the presumption, most courts seem to hold that it is not the
only
way.
See, e.g., Kirschbaum,
At the same time, it is clear that the
Moench
presumption is not overcome simply by pleading and proving that the price of the employer’s stock dropped steeply, even when the drop was based on the disclosure of some type of misconduct.
See Kirschbaum,
The case law is thus helpful in defining what is always sufficient to overcome the Moench presumption (an employer on the verge of collapse) and what is never sufficient, at least by itself, to overcome the presumption (a drop in the price of the employer’ stock). But, between these two extremes, what exactly must a plaintiff plead and prove to overcome the Moench presumption?
There may not be a good answer to this question, but this Court finds persuasive the recent opinion of Judge Stephen Murphy in
In re Ford Motor Co. ERISA Litigation,
... ERISA excuses [EIAP] fiduciaries from “the prudence requirement (only to the extent that it requires diversification).” 29 U.S.C. § 1104(a)(2). This is necessary because, as many courts have noted, it is almost always imprudently risky to invest most or all of a fund’s assets in a single stock.
But the statutory language plainly retains the duty of prudence except insofar as it would dictate diversification. As a result, this Court finds that the [.Moench ] presumption of prudence means that 29 U.S.C. § 1104(a)(l)-(2) requires fiduciaries to divest their plans of company stock when holding it becomes so risky — that is, so imprudent — that the problem could not be fixed by diversifying into other assets. In other words, with respect to EIAPs, an abuse of discretion under [Moench ] begins (and the presumption of prudence ends) at the point at which company stock becomes so risky that no prudent fiduciary, reasonably aware of the needs and risk tolerance of the plan’s beneficiaries, would invest any plan assets in it, regardless of what other stocks were also in that plan’s portfolio.
Id. at 892-93 (footnote and citations omitted).
As Judge Murphy explained, this excessive-risk standard comports with the statutory exemption from the diversification requirement. The Moench presumption may not be overcome by proof that the EIAP fiduciary invested too heavily in employer stock, but only by proof that the fiduciary should not have invested at all in employer stock. At the same time, this standard gives effect to the regulations implementing ERISA, which require a fiduciary to “ ‘tak[e] into consideration the risk of loss and the opportunity for gain (or other return) associated with the investment or investment course of action.’ ” Id. at 891 (quoting 29 C.F.R. § 2550.404a-l(b)(2)(i)). As Judge Murphy conceded, the excessive-risk standard does not provide a bright-line rule for fiduciaries, but given that the statutory prudence standard itself provides no bright-line rules, it would be inconsistent with ERISA to create one. Id. at 892. Alleging that the employer was on the verge of collapse is certainly one way to show that the employer’s stock was excessively risky, but it would be inconsistent with ERISA to hold, as a matter of law, that such an allegation is the only way to state a claim. Id. at 891-92.
The Court finds this analysis persuasive. Applying the excessive-risk standard as described in Ford Motor Co., the Court holds that plaintiffs have pleaded sufficient facts to survive a motion to dismiss. Plaintiffs allege that MoneyGram was suffering enormous investment losses throughout the class period — approximately $1.6 billion, at last count. Plaintiffs further allege that these losses were due to MoneyGram’s pursuit of an extraordinarily speculative and unnecessary investment strategy that involved borrowing money and investing it in risky mortgage-backed securities. This strategy, plaintiffs allege, put at least two-thirds of Money-Gram’s investment portfolio at risk and was already beginning to fail at the inception of the Plan, but it was not disclosed to the market until years later. Under these conditions, plaintiffs allege, MoneyGram’s stock price was poised to collapse, and ultimately, as of March 2008, it had lost 92% of its value over the preceding year. After MoneyGram’s enormous losses were finally disclosed to the market, the SEC initiated an investigation into Money-Gram’s accounting practices, and Money-Gram was forced to seek a large infusion of outside capital.
In the Court’s view, these allegations, taken as a whole, sufficiently allege that at some point “[MoneyGram] stock [became] so risky that no prudent fiduciary, reasonably aware of the needs and risk tolerance
3. Count II
The duty of loyalty “includes the obligation to deal fairly and honestly with all plan members” and “requires an ERISA fiduciary to communicate any material facts which could adversely affect a plan member’s interests.”
Shea v. Esensten,
a. Fiduciary Communications
As noted earlier, to prevail on a claim for a breach of fiduciary duty, a plaintiff must prove not only that the challenged action was taken by a fiduciary, but that the fiduciary was acting in his fiduciary capacity when he took the challenged action. Plaintiffs’ misrepresentation claim is based largely on information contained in MoneyGram’s SEC filings, which, plaintiffs allege, were incorporated into Plan documents and disseminated to Plan participants. MoneyGram argues that it never incorporated its SEC filings into any Plan documents and that disclosures mandated by the securities laws are not fiduciary communications.
Although there are decisions on both sides of the issue, the Court agrees with the decisions that have held that SEC filings are made in a company’s corporate capacity — and not in its capacity as an ERISA fiduciary — and therefore do not, without more, constitute fiduciary communications.
See, e.g., In re WorldCom, Inc.,
This is not a securities-fraud action. If, at the end of the day, plaintiffs are able to prove nothing more than that Money-Gram’s SEC filings were inaccurate, and that the inaccurate information was made available to plaintiffs in the same manner that it was made available to the rest of the investing public, then the Court will likely dismiss the breach-of-loyalty claim.
But plaintiffs allege something more. Specifically, plaintiffs allege that Money-Gram incorporated its SEC filings into the SPD and into Plan prospectuses, and then,
There is little in the SPD to support plaintiffs’ claim,
10
but this matter is before the Court on a Rule 12(b)(6) motion. Such a motion tests the sufficiency of allegations, not the sufficiency of evidence, and plaintiffs have
alleged
that MoneyGram distributed SEC filings to Plan participants in its capacity as an ERISA fiduciary. That allegation is sufficient to state a claim.
Cf. Varity Corp. v. Howe,
MoneyGram argues that, because the Employer Stock Fund was closed to all but employer contributions, MoneyGram had no legal duty to disseminate prospectuses or similar SEC-mandated disclosures to Plan participants. That may be true, but the fact that MoneyGram was not required to disseminate such documents to Plan participants does not mean that Money-Gram did not voluntarily do so, as plaintiffs have alleged.
Obviously, the Court does not mean to suggest that plaintiffs will recover on their breach-of-loyalty claim if they prove only that, at some point, MoneyGram distributed a prospectus to them. Plaintiffs have a number of hurdles to overcome. At this point, however, plaintiffs have sufficiently alleged a breach-of-loyalty claim.
b. Rule 9(b)
MoneyGram next argues that Count II fails to meet the standards of Fed.R.Civ.P. 9(b), which requires parties to allege “with particularity the circumstances constituting fraud or mistake.” But plaintiffs’ claims rest solely on negligence, and Rule 9(b) does not apply to negligence claims.
11
Cf. In re Nations-
c. Reliance and Causation
Plaintiffs allege both that “reliance is presumed in an ERISA breach of fiduciary duty case” and, alternatively, that they in fact “relied to their detriment on the misstatements and omissions [and] on the inaccurate and incomplete information that Defendants made to Plan Participants.” Am. Compl. ¶ 212. Seizing on the former allegation and ignoring the latter, MoneyGram argues that plaintiffs have conceded that they did not rely on any misstatement or omission. MoneyGram is obviously incorrect.
MoneyGram also argues that plaintiffs cannot prove a causal connection between any loss to the Plan and the alleged misrepresentations and omissions because, had MoneyGram made the disclosures that plaintiffs now contend should have been made, the value of MoneyGram stock would have dropped, and the Plan would have been damaged. This seems logical, and most of what plaintiffs say in response is unavailing. For example, plaintiffs cite
Rath v. Sawyer-Cleator Lumber Co.,
The only way in which plaintiffs could have used the information that they claim they were denied would have been to sell their MoneyGram stock at an earlier time. But plaintiffs did not have the right to trade on the basis of “inside” information — that is, information that had not been disclosed to the market as a whole. And once MoneyGram disclosed the information to plaintiffs and the rest of the market, the stock price would have dropped, and plaintiffs would have suffered the same damages.
Some courts have dismissed misrepresentation and failure-to-disclose claims on this basis,
see Edgar,
d. Failure to Disclose
Finally, MoneyGram argues that, whatever its obligation to ensure that its com
The Eighth Circuit has interpreted the duty of loyalty quite broadly. In
Shea,
the Eighth Circuit noted that, although the Supreme Court’s decision in
Varity
declined to reach the issue of whether ERISA fiduciaries ever have an affirmative duty to disclose,
see Varity,
At the same time,
Shea
involved an entirely different set of facts — an HMO’s failure to disclose that its doctors had a financial incentive to deny care — and this Court would be surprised if the broad language of
Shea
were interpreted to impose a duty of continuous disclosure about corporate developments to employees who participate in an EIAP. In another context, the .Eighth Circuit has said that “[e]mployer fiduciaries are not required to provide general business information to potential plan participants.... ”
Wilson,
At a minimum, however, it is clear that a fiduciary has an affirmative duty to disclose when the fiduciary has reason to know that an earlier disclosure was misleading.
See Kalda v. Sioux Valley Physician Partners, Inc.,
4. Count III
A fiduciary who has the power to appoint other fiduciaries has a duty to monitor the performance of his appointees.
See Pedraza v. Coca-Cola Co.,
MoneyGram first argues that this claim should be dismissed because there can be no liability for failure to monitor without an underlying breach of fiduciary duty by the appointed fiduciary. But the Court has held that plaintiffs have pleaded viable claims for breach' of fiduciary duty against the appointed fiduciaries, and thus the Court cannot dismiss the monitoring claim on this basis.
MoneyGram also argues that, because there is no affirmative duty to notify Plan participants about adverse business developments, there can be no duty to inform appointed fiduciaries about them either. But as discussed above, there is a duty to disclose information to participants when the fiduciary knows or has reason to know that its earlier disclosures were misleading. MoneyGram does not explain why, if such a duty exists as to participants, it would not also exist as to appointed fiduciaries.
The Court will therefore deny Money-Gram’s motion to dismiss Count III. To be clear, the Court is not adopting plaintiffs’ conception of the scope of the duty to monitor. Indeed, the Court has its doubts about plaintiffs’ theory. At this point, the Court holds merely that the reasons advanced by MoneyGram do not justify dismissal of Count III.
5. Count IV
In Count IV, plaintiffs allege that MoneyGram breached the duty of loyalty by failing to engage independent fiduciaries who could make independent judgments about the Plan’s investment in MoneyGram stock; failing to notify appropriate federal agencies, including the SEC, of the facts that made MoneyGram stock an unsuitable investment; failing to take other “necessary” steps -to ensure that participants’ interests were loyally and prudently served; and placing its own interests above those of the participants. Plaintiffs also make passing reference to the November 2007 offer from Euronet Worldwide, Inc. to purchase MoneyGram, and to the fact that certain defendants sold MoneyGram stock during the class period.
The Court agrees with MoneyGram that these allegations do not state a claim for relief under ERISA. ERISA fiduciaries are permitted to have interests adverse to those of plan participants.
See Pegram,
The remainder of plaintiffs’ allegations in Count IV seek to hold defendants accountable for non-fiduciary acts. The Court again reminds plaintiffs that this is an ERISA action, not a securities-fraud action. The Court has already rejected the argument that filing a disclosure with the SEC is a fiduciary act. Similarly, a corporate officer’s sale of company stock is not the act of an ERISA fiduciary, as such a sale has nothing to do with the management or administration of the Plan or its assets.
See
§ 1002(21)(A). Finally, the allegation that MoneyGram refused a favorable purchase offer likewise does not state a claim under ERISA. Whether to merge with another company is a corporate decision, not a fiduciary one.
Kalda,
6. Remaining Claims
MoneyGram’s only argument with respect to Counts V and VI is that, absent an underlying breach of fiduciary duty, co-fiduciary liability does not exist. Money-Gram is correct, but, as discussed above, plaintiffs have pleaded viable claims for breach of fiduciary duty, and therefore they have pleaded viable claims for co-fiduciary liability.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. Defendants’ motion to dismiss [Docket No. 5] is GRANTED IN PART and DENIED IN PART.
2. Defendants’ motion is GRANTED with respect to Count IV of plaintiffs’ amended complaint [Docket No. 11], and Count IV is DISMISSED WITH PREJUDICE AND ON THE MERITS.
3. Defendants’ motion is DENIED in all other respects.
Notes
. All citations to ERISA are to Title 29 of the United States Code.
. Plaintiffs assert six claims, each of which is brought against every defendant. The parties have not drawn any distinctions among defendants for purposes of defendants’ motion to dismiss. The Court will follow the parties’ lead.
. Plaintiffs allege otherwise in ¶ 3 of their Amended Complaint, but they have not explained (or even acknowledged) the clear language to the contrary in the Plan nor disputed MoneyGram’s description of the Employer Stock Fund as a "closed” fund.
. Generally, in ruling on a Rule 12(b)(1) motion,
"the trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court’s jurisdiction — its very power to hear the case — there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.”
Osborn v. United States,
.
Adamson
does not, in fact, establish that a cashed-out former employee can never be a "participant” in a plan for purposes of ERISA. In
Adamson,
the Eighth Circuit held that former employees who had
allowed their claims for benefits to become time-barred
were no longer “participants” and therefore lacked standing to bring claims for breach of fiduciary duty under §§ 1132(a)(2) and (3).
Adam-son,
Gilquist
is much closer to the mark. In
Gilquist,
which was summarily affirmed by the Eighth Circuit (and is not really precedential,
see Roth
v.
Sawyer-Cleator Lumber Co.,
. The counts in the amended complaint contain overlapping claims. For example, in addition to alleging that MoneyGram breached its duties by investing Plan assets in Money-Gram stock, Count I also alleges that Money-Gram breached its duties by failing to disclose material information, and Count I alleges co-fiduciary liability. But plaintiffs have pleaded separate claims of misrepresentation, failure to disclose, and co-fiduciary liability that mirror portions of Count I. For simplicity’s sake, the Court will discuss each type of claim separately in connection with the count in which it is mainly alleged.
The Court notes that plaintiffs allege in Count I that MoneyGram's investment of-Plan assets in MoneyGram stock breached the duty of loyalty as well as the duty of prudence. But plaintiffs’ breach-of-loyalty claim boils down to an allegation that defendants made imprudent inveistments. As the allegation of breach of the duty of loyalty adds nothing of substance to the- allegation of breach of the duty of prudence, the Court will discuss only the latter allegation.
. At the same time, if MoneyGram ultimately prevails
on
this issue, plaintiffs will not be permitted to argue that MoneyGram had a fiduciary duty to amend the Plan. The law is quite clear that the decision to amend an ERISA plan is not a fiduciary one, even if the plan is one to which employees contribute.
Hughes Aircraft Co.,
.
Moench,
and a number of cases following it, suggest that fiduciaries of EIAPs may be required to diversify if that is in the best interest of plan participants.
Moench,
. Moench mistakenly cites comment g, which does not contain any of the quoted language. Comment w to § 227 includes all of the quoted language, including the bracketed insertion.
. The language to which plaintiffs point merely states that Plan participants will be given information about the various investment funds available under the Plan. See, e.g., SPD at 8. While this language may be relevant in proving that MoneyGram acted as a Plan fiduciary whenever it disseminated information about the investment funds to Plan participants, this language does not itself incorporate any information into the SPD. Similarly, plaintiffs highlight language in the Plan that requires MoneyGram to comply with any applicable securities laws, but that language also does not incorporate securities filings or anything else into the Plan.
. It is not clear whether a claim of negligent misrepresentation is sufficient to state a claim for breach of the duty of loyalty.
See Christensen v. Qwest Pension Plan,