Steve HARRIS; Dennis F. Ramos, aka Dennis Ramos; Donald Hanks; Jorge Torres; Albert Cappa, On Behalf of Themselves and All Others Similarly Situated, Plaintiffs-Appellants, v. AMGEN, INC.; Amgen Manufacturing, Limited; Frank J. Biondi, Jr.; Jerry D. Choate; Frank C. Herringer; Gilbert S. Omenn; David Baltimore; Judith C. Pelham; Kevin W. Sharer; Frederick W. Gluck; Leonard D. Schaeffer; Charles Bell; Jacqueline Allred; Amgen Plan Fiduciary Committee; Raul Cermeno; Jackie Crouse; Fiduciary Committee Of The Amgen Manufacturing Limited Plan; Lori Johnston; Michael Kelly, Defendants-Appellees, Dennis M. Fenton; Richard Nanula; The Fiduciary Committee; Amgen Global Benefits Committee; Amgen Fiduciary Committee, Defendants.
No. 10-56014
United States Court of Appeals, Ninth Circuit
Oct. 30, 2014
770 F.3d 865
under a statute that proscribes only morally turpitudinous conduct, we cannot look to the underlying circumstances of his crime.
Accordingly, because Beltran-Tirado‘s holding depended upon the history of the specific statutory provision involved in that case, and not a garden-variety state fraud statute like the one involved here, Beltran-Tirado is by its terms inapplicable to petitioner‘s case. Further, the circumstance-specific approach that Beltran-Tirado took is now in tension with intervening and controlling Supreme Court authority. The case now stands, at best, as an isolated exception to the prevailing rulе that a conviction for a fraud offense is categorically a crime involving moral turpitude. “Such has been the clearly established rule with respect to fraud since at least 1951.” Navarro-Lopez, 503 F.3d at 1074 (Reinhardt, J., concurring for a majority).
The petition for review is DENIED.
Before: JEROME FARRIS and WILLIAM A. FLETCHER, Circuit Judges, and EDWARD R. KORMAN, Senior District Judge.*
OPINION
W. FLETCHER, Circuit Judge:
Plaintiffs, current and former employees of Amgen, Inc. (“Amgen“) and its subsidiary Amgen Manufacturing, Limited (“AML“), participated in two employer-sponsored pension plans, the Amgen Retirement and Savings Plan (the “Amgen Plan“) and the Retirement and Savings Plan for Amgen Manufacturing, Limited (the “AML Plan“) (collectively, “the Plans“). The Plans were employee stock-ownership plans that qualified as “eligible individual account plans” (“EIAPs“) under
After the value of Amgen common stock fell, plaintiffs filed a class action under the Employee Retirement Income Security Act (“ERISA“) against Amgen, AML, Amgen‘s board of directors, and the Fiduciary Committees of the Plans (collectively, “defendants“), alleging that defendants breached their fiduciary duties under ERISA. The district court dismissed the complaint against Amgen under
In an earlier opinion, we reversed the district court‘s dismissal of the complaint. Harris v. Amgen, Inc., 738 F.3d 1026 (9th Cir.2013). Applying Quan, we held that the presumption of prudence did not apply. We held, further, that, in the absence of the presumption, plaintiffs had sufficiently alleged violation of the defendants’ fiduciary duties. Finally, we held that Amgen was an adequately alleged fiduciary of the Amgen Plan.
Defendants petitioned for a writ of certiorari. The Supreme Court deferred ruling on the petition while it considered Fifth Third Bancorp v. Dudenhoeffer, — U.S. —, 134 S.Ct. 2459, 189 L.Ed.2d 457 (2014), another ERISA case in which the presumption of prudence was at issue. In Quan, we had held that the presumption of prudence was available to ERISA fiduciaries for both EIAPs and employee stock
On reconsideration in light of Fifth Third, we again reverse the district court‘s dismissal.
I. Background
The following narrative is taken from the complaint and documents that provide uncontested facts. On a motion to dismiss, we assume the allegations of the complaint to be true. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007).
Amgen is a global biotechnology company that develops and markets pharmaceutical drugs. AML, a wholly owned subsidiary of Amgen, operates a manufacturing facility in Puerto Rico. To provide retirement benefits tо their employees, Amgen set up the Amgen Plan on April 1, 1985. AML set up the AML Plan in 2002 and it became effective on January 1, 2006.
The Plans are covered by the Employee Retirement Income Security Act (“ERISA“). Both qualify as “individual account plans.” See
This litigation arises out of a controversy concerning Amgen drugs used for the treatment of anemia. Anemia is a condition in which blood is deficient in red blood cells or hemoglobin. Causes of anemia include an iron-deficient diet, excessive bleeding, certain cancers and cancer treatments, and kidney or liver failure. In the early 1980s, Amgen scientists discovered how to make artificial erythropoietin, a protein formed in the kidneys that stimulates erythropoiesis, the formation of red blood cells. After this discovery, Amgen commercialized the manufacture of a class of drugs known as erythropoiesis-stimulating agents (“ESAs“) to treat anemia.
In 1989, the Federal Drug Administration (“FDA“) approved Amgen‘s first commercial ESA, epoetin alfa, for the treatment of anemia associated with chronic kidney failure. Amgen marketed epoetin alfa for approved uses under the brand name EPOGEN (“Epogen“), and licensed patents to Johnson & Johnson (“J & J“) to develop additional marketable uses. J & J obtained FDA approval between 1991 and 1996 to market epoetin alfa under the brand name PROCRIT (“Procrit“) for anemia associated with chemotherapy and HIV therapies, for chronic kidney diseases, and for pre-surgery support of anemic patients. J & J had exclusive marketing rights for Procrit under its licensing agreement with Amgen.
In the late 1990s and early 2000s, several clinical trials raised safety concerns regarding the use of ESAs for particular anemic populations. In 1998, the Normal Hematocrit Study tested the efficacy of ESAs on anemia patients with pre-existing heart disease. The study was terminated because the test group experienced statistically significant higher rates of blood clotting. In 2003 and early 2004, two trials—ENHANCE and BEST—tested ESAs on cancer patients in Europe. The ENHANCE trial showed shorter progression-free survival and shorter overall survival of head and neck cancer patients for the ESA group than the placebo group. The BEST trial was terminated after four months because breast cancer patients in the group taking epoetin alfa had a higher rate of death than thоse in the placebo group.
ENHANCE and BEST did not test the safety of ESAs for the specific uses and doses for which they had been approved in the United States. In March 2004, the FDA published notice in the Federal Register that the Oncology Drug Advisory Committee (“ODAC“), an FDA-sponsored group of oncology experts, would convene in May 2004 to discuss safety concerns about Aranesp. In April, before the ODAC meeting, an Amgen spokesperson stated during a conference call with investors, analysts, and plan participants that “the focus [of the ODAC meeting] was not on Aranesp” and that “the safety for Aranesp has been comparable to placebo.”
During its two-day meeting with ODAC, the FDA urged Amgen to conduct further clinical trials to test the safety of ESAs for uses that had already been approved by the FDA. Amgen made a presentation at the meeting outlining what it called the “Amgen Pharmacovigilance Program,” consisting of five ongoing or planned clinical trials testing Aranesp “in different tumor treatment settings.” Amgen‘s Vice President for Oncology Clinical Development described the Amgen program as the “responsible and credible approach to definitively resolv[e] the questions raise[d]” by the FDA.
One of the trials under Amgen‘s program was the Danish Head and Neck Cancer Group (“DAHANCA“) 10 Trial. The DAHANCA 10 Trial tested whether high doses of Aranesp could help shrink tumors in patients receiving radiation therapy for head and neck cancer. On October 18, 2006, DAHANCA investigators temporarily halted the study “due to information about potential unexpected negative effects.” Amgen was informed of the temporary halt of the study on or near that day. Amgen did not disclose that the DAHANCA 10 Trial had been temporarily halted.
An analysis of the halted DAHANCA 10 Trial was completed on November 28, 2006. The principal investigator reported that “[b]ased on these outcome results the DAHANCA group concluded that the likelihood of a reverse outcome, i.e. that Aranesp would be significantly better than in control[,] was almost non-existing.” The
Another clinical trial, CHOIR, raised additional safety concerns about ESAs. The CHOIR trial investigated the safety of epoetin alfa (EPOGEN) when used to treat chronic kidney disease patients. The safety monitoring board for CHOIR terminated the trial when a higher incidence of death and cardiovascular hospitalization was observed among epoetin alfa users. Yet another clinical trial, CREATE, tested the benefit provided by Roche Pharmaceuticals‘s ESA in raising hemoglobin levels in patients with chronic kidney disease. On November 16, 2006, Roche announced that the results of the CREATE trial “clearly show that there is no additional cardiovascular benefit from treating to higher hemoglobin levels in this patient group.”
On November 20, Amgen posted a public statement responding to the CHOIR and CREATE trials. Amgen wrote, “A very substantial body of evidence, developed over the past 17 years, demonstrates that anemia associated with chronic kidney disease can be treated safely and effectively with EPOGEN and Aranesp when administered according to the Food and Drug Administration (FDA)-approved dosing guidelines.” Two weeks later, Amgen issued a press release to correct “what the company believes are misleading and inaccurate news reports regarding the use of its drugs.” Amgen reiterated, “EPOGEN and Aranesp are effective and safe medicines when administered according to the Food and Drug Administration (FDA) label.”
Amgen also conducted its own clinical trial, the “103 Study.” The 103 Study tested Aranesp in 939 patients with anemia secondary to cancer. The FDA later described the 103 Study as “demonstrat[ing] significantly shorter survival rate[s] in cancer patients receiving ESAs as compared to th[o]se receiving transfusion support.” However, during a January 2007 conference call, an Amgen representative described the 103 Study as not demonstrating a “statistically significant adverse [e]ffect of Aranesp on overall mortality in this patient population.” He said that “the risk benefit ratio for Aranesp in these extremely ill patients with anemia secondary to malignancy is, at best, neutral and perhaps negative.” During what may have been the same conference call, discussing Amgen‘s fourth-quarter earnings on January 25, an Amgen representative stated, in response to concerns exрressed about the 103 Study, that “we have a well established risk benefit profile.”
During a February 16, 2007, investor conference call, defendant Kevin Sharer, Amgen‘s President, Chief Executive Officer, and Chairman of the Board, stated, “We strongly believe, as we have consistently stated, that Aranesp and EPOGEN are safe and effective medicines when used in accordance with label indications.” During a March conference call, defendant Sharer reiterated, “When we look at the totality of data, we believe our products are safe and effective when used on-label.” On March 9, 2007, Amgen posted a statement on the company website available to plan participants under the title “Amgen‘s Statement on the Safety of Aranesp (darbepoetin alfa) and EPOGEN (Epoetin alfa)“:
Amgen engaged in extensive marketing, encouraging both on- and off-label uses of its ESAs. Amgen trained its sales representatives to ask questions that steered doctors to discussions about off-label uses. In an Amgen sales personnel manual, Amgen gave an “expanded list” of “excellent questions” to ask doctors in order to move the discussions toward off-label uses. Examples include, “What is keeping you from using Aranesp in all your MDS/HIV/CIA patients?” MDS is myelodysplastic syndrome, an illness often resulting in anemia. The FDA has never approved Aranesp to treat MDS or HIV patients.
Amgen created a speakers program in which Amgen paid for dinners at which “expert” speakers talked to physicians and other providers about off-label uses for Aranesp. Speakers program events were not accredited as continuing medical education seminars conducted by an independent medical association. Amgen paid not only the speakers but also the doctors and other medical providers who attended the events. The $1,000 payments to physician attendees were “paid from [Amgen‘s] marketing budget.”
Amgen educated medical providers about the profit they could obtain by prescribing its ESAs. Before January 1, 2005, Medicare calculatеd drug reimbursement rates based on the average wholesale price (“AWP“) of drugs. Medical providers could purchase Amgen‘s ESAs at a price lower than the AWP, but could charge Medicare the AWP. Amgen created spreadsheets and other tools to help providers calculate the profit. Amgen also encouraged doctors to use its ESAs inefficiently. For example, it encouraged doctors to deliver Epogen intravenously rather than subcutaneously, because an intravenous delivery of the drug requires a substantially larger dose to achieve the same effect.
Amgen marketing efforts were successful. For example, Amgen‘s worldwide sales of Aranesp increased fourteen percent during the first quarter of 2007 compared to the same quarter in 2006. Amgen told investors on several occasions that its marketing practices were proper. In public SEC filings, Amgen stated that it marketed its products only for on-label uses. In December 2006, in response to negative publicity about off-label uses, Amgen issued a press release “intended to clarify Amgen‘s position on the use of EPOGEN and Aranesp and to correct what the company believes are misleading and inaccurate news reports regarding the use of its drugs.” The company clarified that “Amgen only promotes the use of EPOGEN and Aranesp consistent with the FDA label.” On a January 2007 conference call, Amgen stated that “our promotion [of EPOGEN] has always been strictly according to our label, we do not anticipate a major shift in clinical practice.”
In February 2007, The Cancer Letter published an article entitled “Amgen Didn‘t Tell Wall Street About Results of [DAHANCA] Study.” The article reported that the DAHANCA trial had been temporarily halted due to the “significantly inferior therapeutic outcome from adding Aranesp to radiation treatment of patients with head and neck cancer.” On February 23, the Associated Press announced that the USP DI, an influential drug reference guide, had delisted Aranesp as a treatment for anemia in cancer patients not undergoing chemotherapy. On February 27, the
New studies are raising questions about whether drugs that have been used by millions of cancer patients might actually be harming them. The drugs, sold by Amgen, Roche, and Johnson & Johnson, are used to treat anemia caused by chemotherapy and meant to reduce the need for blood transfusions and give patients more energy. But the new results suggest that the drugs may make the cancer itself worse. . . . [S]ome cancer specialists and securities analysts say the new information may make doctors more cautious in using the drugs, which have combined sales for the three companies exceeding $11 billion and have been heavily promoted through efforts that include television commercials.
On March 9, the FDA mandated a “black box” warning for off-label use of Aranesp and Epogen. A black box warning is the strongest warning the FDA can require. Cf.
Recently completed studies describe an increased risk of death, blood clots, strokes, and heart attacks in patients with kidney failure where ESAs were given at higher than recommended doses. In other studies, more rapid tumor growth occurred in patients with head and neck cancer who received these higher doses. In studies where ESAs were given at recommended doses, an increased risk of death was reported in patients with cancer who were not receiving chemotherapy and an increased risk of blood clots was observed in patients fоllowing orthopedic surgery.
On March 21, 2007, two House of Representatives subcommittees opened an investigation into the safety profile of Aranesp and EPOGEN as well as into Amgen‘s off-label marketing practices. The Chairs of those two subcommittees “ordered” Amgen to halt direct-to-consumer advertising and physician incentives pending further FDA action. On May 8, the FDA noted on its website that Aranesp and EPOGEN “were clearly demonstrated to be unacceptable” in high doses. On May 10, ODAC reconvened and voted to restrict the use of ESAs, to expand existing warnings, and to require ESA manufacturers to conduct further studies.
Defendant Sharer, Amgen‘s President and CEO, told a Wall Street Journal reporter in an interview that 2007 was the “most difficult [year] in [Amgen‘s] history.” According to Sharer, there was an “unexpected $800 million to $1 billion hit to operating income due to safety concerns” about Aranesp. Sales of Aranesp decreased by fifty percent.
Amgen stock, and thus the Amgen Common Stock Fund, lost significant value as a result of these safety concerns. The class period runs from May 4, 2005, to March 9, 2007. Amgen common stock was at its high of $86.17 on September 19, 2005. On February 16, 2007, when The Cancer Letter published its article revealing that Amgen had not been forthcoming about the result of the DAHANCA 10 Trial, Amgen stock sold for $66.73. When ODAC voted to restrict the use of ESA drugs, on or shortly after May 10, the price of Amgen stock dropped to $57.33, the class period low. Between September 19, 2005 and the ODAC vote, the price of Amgen stock dropped $28.84, or thirty-three percent.
On August 20, 2007, plaintiffs Steve Harris, a participant in the Amgen Plan, and Dennis Ramos, a participant in the AML Plan, filed a complaint alleging that defendants breached their fiduciary duties under ERISA. The district court dismissed Harris‘s claims for lack of standing, on the ground that Harris no longer owned assets in the Amgen Plan on the date he
The complaint now at issue is the First Amended Class Action Consolidated Complaint (“FAC“), filed on March 23, 2010, by five plaintiffs, including Harris and Ramos. The FAC alleges six counts of violation of fiduciary duty under ERISA against Amgen, AML, nine Directors of the Amgen Boаrd (“the Directors“), and the Plans’ Fiduciary Committees and their members. The district court dismissed the FAC against Amgen on the ground that it was not a fiduciary. It dismissed the FAC against the remaining defendants under
In a separate class action simultaneously pending before the same district court judge, investors in Amgen common stock claimed violations of federal securities laws based on the same alleged facts as in the ERISA action now before us. In a careful thirty-five page order, the district court concluded that the investors had sufficiently alleged material misrepresentations and omissions, scienter, reliance, and resulting economic loss to state claims under Sections 10(b) and 20(a) of the 1934 Exchange Act. See
For the reasons that follow, we reverse the district court‘s decision in the ERISA case before us.
II. Standard of Review
“We review de novo the district court‘s grant of a motion to dismiss under
III. Discussion
Congress enacted ERISA to provide “minimum standards . . . assuring the equitable character of [employee benefit] plans and their financial soundness.”
We first address the sufficiency of the FAC against each properly named fiduciary. We then address whether the plaintiffs have adequately alleged that Amgen is a fiduciary.
A. Sufficiency of the FAC
The district court dismissed all six counts of the FAC under
1. Count II
Plaintiffs allege in Count II that defendants acted imprudently, and thereby violated their duty of care under
[T]he law does not create a special presumption favoring ESOP fiduciaries. Rather, the same standard of prudence applies to all ERISA fiduciaries, except that an ESOP fiduciary is under no duty to diversify the ESOP‘s holdings.
134 S.Ct. at 2467. Defendants are EAIP fiduciaries rather than ESOP fiduciaries, but they do not dispute that Fifth Third applies equally to them, and they do not contend that they enjoy a presumption of prudence. However, defendants contend that their actions were prudent even if the presumption of prudence does not apply.
ERISA requires that a fiduciary perform duties under a plan “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.”
Count II alleges that defendants knew or should have known about material omissions and misrepresentations, as well as illegal off-label sales, that artificially inflated the price of the stock while, at the same time, they continued to offer the Amgen Common Stock Fund as an investment alternative to plan participants. The district court held that, even without the assistance of the presumption of prudence, defendants were entitled to dismissal of Count II under
We begin by noting that we held in Syncor that “[a] violation [of the prudent man standard] may occur where a company‘s stock was artificially inflated during that time by an illegal scheme in which the fiduciaries knew or should have known, and then suddenly declined when the scheme was exposed.” In re Syncor, 516 F.3d at 1102. In Syncor, the company was a fiduciary that knowingly made cash bribes to doctors in Taiwan in violation of the Foreign Corrupt Practices Act. Upon disclosure of these illegal payments, Syncor‘s stock price lost nearly half its value. “Despite these illegal practices, the [fiduciaries] allowed the Plan to hold and acquire Syncor stock when they knew or had reason to know of Syncor‘s foreign bribery scheme.” Id. at 1098. We held on appeal from summary judgment that “there is a genuine issue whether the fiduciaries breached the prudent man standard by knowing of, and/or participating in, the illegal scheme while continuing to hold and purchase artificially inflated Syncor stock for the ERISA Plan.” Id. at 1103.
In their original briefing, filed before the Court decided Fifth Third, defendants make five arguments in favor of dismissal of Count II. None is persuasive.
First, defendants argue that investments in Amgen stock during the class period were not imprudent “because Amgen was not even remotely experiencing severe financial difficulties during that time, and remains a strong, viable, and profitable company today.” This argument is beside the point. Amgen was not “experiencing severe financial difficulties” during the relevant time period in part because of the very actions about which plaintiffs are now complaining. That is, Amgen was earning large but unsustainable profits based on improper and unsustainable sales of EPOGEN and Aranesp. Further, Amgen may have been, and may now be, a “strong, viable, and profitable company,” but that does not mean that the price of Amgen stock was not artificially inflated during the class period.
Second, defendants argue that the decline in price in Amgen stock was insufficient to show an imprudent investment by the fiduciaries. They write, “[A]s the District Court correctly held, this ‘relatively modest and gradual decline in the stock price’ does not render the investment imprudent.” As an initial matter, we note that the proper question is not whether the investment results were unfavorable, but whether the fiduciary used “‘appropriate methods‘” to investigate the merits of the transaction. Quan, 623 F.3d at 879 (quoting Wright, 360 F.3d at 1097); see also Kirschbaum v. Reliant Energy, Inc., 526 F.3d 243, 254 (5th Cir.2008) (explaining that the “test of prudence is one of conduct, not results“); Bunch v. W.R. Grace & Co., 555 F.3d 1, 7 (1st Cir.2009) (same). But defendants’ argument fails even on its own terms. Their argument is foreclosed by the district court‘s decision
Third, quoting Kirschbaum, 526 F.3d at 253, 256, defendants argue that
[w]hen, like here, retirement plans are at issue, courts must be mindful of “the long-term horizon of retirement investing, as well as the favored status Congress has granted to employee stock investments in their own companies.” . . . [H]olding fiduciaries liable for continuing to offer the option to invest in declining stock would place them in an “untenable position of having to predict the future of the company stock‘s performance. In such a case, [a fiduciary] could be sued for not selling if he adhered to the plan, but also sued for deviating from the plan if the stock rebounded.”
Defendants’ reliance on Kirschbaum is misplaced. The court wrote in that case, “The Plan documents, considered as a whole, compel that the Common Stock Fund be available as an investment option for employee-participants.” Kirschbaum, 526 F.3d at 249. The concerns expressed in Kirschbaum have little bearing on the case before us. Here, unlike in Kirschbaum, the fiduciaries of the Amgen and AML Plans were under no such compulsion. They knew оr should have known that the Amgen Common Stock Fund was purchasing stock at an artificially inflated price due to material misrepresentations and omissions by company officers, as well as by illegal off-label marketing, but they nevertheless continued to allow plan participants to invest in the Fund.
Fourth, quoting In re Computer Sciences Corp., ERISA Litig., 635 F.Supp.2d 1128, 1136 (C.D.Cal.2009), aff‘d 623 F.3d 870 (9th Cir.2010), defendants argue that if the Amgen Fund had been “remove[d] . . . as an investment option,” based on non-public information about the company, this action “may have brought about ‘precisely the result [P]laintiffs seek to avoid: a drop in the stock price.‘” The Court wrote in Fifth Third:
To state a claim for breach of the duty of prudence on the basis of inside information, a plaintiff must plausibly allege an alternative action that the defendant could have taken that would have been consistent with the securities laws and that a prudent fiduciary would not have viewed as more likely to harm the fund than to help it.
134 S.Ct. at 2472. More specifically, the Court wrote:
[L]ower courts faced with such claims should also consider whether the complaint has plausibly alleged that a prudent fiduciary in the defendant‘s position could not have concluded that stopping purchases—which the market might take as a sign thаt insider fiduciaries viewed the employer‘s stock as a bad investment—or publicly disclosing negative information would do more harm than good to the fund by causing a drop in the stock price and a concomitant drop in the value of the stock already held in the fund.
Based on the allegations in the complaint, it is at least plausible that defen-dants
It is true that removing the Amgen Common Stock Fund as an investment option would have sent a negative signal to investors if the fact of the removal had been made public, and that such a signal may have caused a drop in the share price. But several factors would have mitigated this effect. The efficient market hypothesis ordinarily applied in stock fraud cases suggests that the ultimate decline in price would have been no more than the amount by which the price was artificially inflated. Further, once the Fund was removed as an investment option, plan participants would have been protected from making additional purchases of the Fund while the price of Amgen shares remained artificially inflated. Finally, the defendants’ fiduciary obligation to remove the Fund as an investment option was triggered as soon as they knew or should have known that Amgen‘s share price was artificially inflated. That is, defendants began violating their fiduciary duties under ERISA by continuing to authorize purchases of Amgen shares at more or less the same time some of the defendants began violating the federal securities laws. If defendants had acted to remove the Fund as an investment option when Amgen‘s share price began to be artificially inflated—that is, when some of the defendants began to violate their obligations under the securities laws—that action may well have caused those defendants to comply with those obligations. But defendants did not do this. Instead, they continued to authorize the Fund as an investment option for a considerable period after they knew or should have known that the share price was artificially inflated.
Fifth, defendants argue that “they could not have removed the Amgen Stock Fund based on undisclosed alleged adverse material information—a potentially illegal course of action.” (emphasis in original). Defendants misunderstand the nature of their duties under federal law. As we noted in Quan, “[F]iduciaries are under no obligation to violate securities laws in order to satisfy their ERISA fiduciary duties.” Quan, 623 F.3d at 882 n. 8. The central problem in this case is that Amgen officials, many of whom are defendants here, made material misrepresentations and omissions in violation of the federal securities laws. Compliance with ERISA would not have required defendants to violate those laws; indeed, compliance with ERISA would likely have resulted in compliance with the securities laws. If defendants had revealed material information in a timely fashion to the general public (including plan participants), thereby allowing informed plan participants to decide whether to invest in the Amgen Common
On remand in the wake of Fifth Third, defendants make an additional argument to those they have already made. They argue on remand that Fifth Third announced “new pleading requirements” applicable to ERISA cases such as this one. We disagree. The Court wrote as follows:
We consider more fully one important mechanism for weeding out meritless claims, the motion to dismiss for failure to state a claim. That mechanism . . . requires careful judicial consideration of whether the complaint states a claim that the defendant acted imprudently. See
Fed. Rule Civ. Proc. 12(b)(6) ; Ashcroft v. Iqbal, 556 U.S. 662, 677-680, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-63, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Because the content of the duty of prudence turns on “the circumstances . . . prevailing” at the time the fiduciary acts,§ 1104(a)(1)(B) , the appropriate inquiry will necessarily be context specific.
134 S.Ct. at 2471. To the extent defendants are arguing that Fifth Third requires a higher pleading standard of particularity or plausibility, this passage from the Court‘s opinion makes clear that they are mistaken. Iqbal and Twombly had already been decided when this case was first before us on appeal, and the Court‘s citation of those two cases indicates that it was not articulating a new pleading standard in this sense. To the extent defendants are arguing that the Court has articulated new standards of liability (as oрposed to a new standard of pleading) that we had not previously applied, they are also mistaken. It is true that the Court articulated certain standards for ERISA liability in Fifth Third. But we had already assumed those standards when we wrote our earlier opinion. For example, the Court specified in Fifth Third that a fiduciary is not required to perform an act that will do more harm than good to plan participants. We assumed that to be so, and we addressed precisely this point in our earlier opinion. See Harris v. Amgen, 738 F.3d at 1041.
We therefore conclude that plaintiffs have sufficiently alleged that defendants have violated the duty of care they owe as fiduciaries under ERISA.
2. Count III
Plaintiffs allege in Count III that defendants violated their duty of loyalty and care under
To some extent, the analysis for Count II overlaps with the analysis for Count III. We have already established that there is no contradiction between defendants’ duty under the federal securities laws and ERISA. Indeed, properly understood, these laws are complementary and reinforcing.
Defendants’ first argument is that they owe no duty under ERISA to provide material information about Amgen stock to plan participants who must decide whether to invest in such stock. In other words, defendants contend that their fiduciary duties of loyalty and care to plan participants under ERISA, with respect to company stock, are less than the duty they owe to the general public under the securities laws. Defendants are wrong, as we made clear in Quan:
We have recognized [that] . . . “[a] fiduciary has an obligation to convey complete and accurate information material to the beneficiary‘s circumstance, even when a benеficiary has not specifically asked for the information.” Barker [v. Am. Mobil Power Corp., 64 F.3d 1397, 1403 (9th Cir.1995)]. “[T]he same duty applies to ‘alleged material misrepresentations made by fiduciaries to participants regarding the risks attendant to fund investment.” Edgar [v. Avaya Inc., 503 F.3d 340, 350 (3d Cir.2007)].
Quan, 623 F.3d at 886. We specifically endorsed the Third Circuit‘s definition of materiality in Quan. We wrote, “[A] misrepresentation is ‘material’ if there was a substantial likelihood that it would have misled a reasonable participant in making an adequately informed decision about whether to place or maintain monies in a particular fund.” Id. (quoting Edgar, 503 F.3d at 350) (internal quotation marks omitted).
Defendants’ second argument is that plaintiffs have failed to show that they relied on defendants’ material omissions and misrepresentations. Defendants contend that plaintiffs must show that they actually relied on the omissions and misrepresentations. It is well established under Section 10(b) that a defrauded investor need not show actual reliance on the particular omissions or representations of the defendant. Instead, as the Supreme Court explained in Erica P. John Fund, Inc. v. Halliburton Co., — U.S. —, 131 S.Ct. 2179, 180 L.Ed.2d 24 (2011), the investor can rely on a rebuttable presumption of reliance based on the “fraud-on-the-market” theory:
According to that theory, “the market price оf shares traded on well-developed markets reflects all publicly available information, and, hence, any material misrepresentations.” [Basic Inc. v. Levinson, 485 U.S. 224, 246, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988)]. Because the market “transmits information to the investor in the processed form of a market price,” we can assume, the Court explained [in Basic], that an investor relies on public misstatements whenever he “buys or sells stock at the price set by the market.” Id. [] at 244, 247, 108 S.Ct. 978.
Erica P. John Fund, 131 S.Ct. at 2185; see also Conn. Ret. Plans & Trust, 133 S.Ct. 1184 (2013). We see no reason why ERISA plan participants who invested in a company stock fund whose assets consisted solely of publicly traded common stock should not be able to rely on the fraud-on-the-market theory in the same manner as any other investor in a publicly traded stock.
As they were required to do under ERISA, defendants prepared and distributed summary plan descriptions (“SPDs“) to Plan participants. See
We hold that defendants’ preparation and distribution of the SPDs, including their incorporation of Amgen‘s SEC filings by reference, were acts performed in their fiduciary capacities. In so holding, we agree with the Sixth Circuit, which has held that such incorporation by reference is an act performed in a fiduciary capacity:
Defendants exercised discretion in choosing to incorporate the [SEC] filings into the Plan‘s SPD as a direct source of information for Plan participants about the financial health of [the company] and the value of its stock, an investment option under the plan. The SPD is a fiduciary communication to plan participants and selecting the information to convey through the SPD is a fiduciary activity. Moreover, whether the fiduciary states information in the SPD itself or incorporates by reference another document containing that information is of no moment. To hold otherwise would authorize fiduciaries to convey misleading or patently untrue information through documents inсorporated by reference, all while safely insulated from ERISA‘s governing reach. Such a result is inconsistent with the intent and stated purposes of ERISA . . . and would create a loophole in ERISA large enough to devour all its protections.
Dudenhoeffer v. Fifth Third Bancorp, 692 F.3d 410, 423 (6th Cir.2012) (internal citation omitted); see also In re Citigroup ERISA Litigation, 662 F.3d 128, 144-45 (2d Cir.2011) (noting that SEC filings had been incorporated in the Plans’ SPDs, but dismissing ERISA claim on the ground that plaintiffs had not sufficiently alleged that the defendant fiduciaries knew or
We therefore conclude that plaintiffs have sufficiently alleged that defendants have violated the duty of loyalty and care they owe as fiduciaries under ERISA. We emphasize, however, as to Counts II and III, that we have decided only that the complaint contains allegations with a sufficient degree of plausibility to survive a motion to dismiss under
3. Counts IV and V
The district court correctly concluded that Counts IV and V are derivative of Counts II and III. Because we reverse the district court‘s dismissal of Counts II and III, we also reverse its dismissal of Counts IV and V. See In re Gilead Sciences Sec. Litig., 536 F.3d 1049, 1055 (9th Cir.2008).
4. Count VI
Count VI alleges that defendants caused the Plans directly or indirectly to sell or exchange property with a party-in-interest, in violation of
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; . . .
(D) transfer to, or use by or for the benefit of a party in interest, of any assets of the plan[.]
A party in interest includes “any fiduciary” of a plan or “an employer” of the plan beneficiaries.
Defendants did not argue in the district court that Count VI fails to state a prohibited transaction claim under
Section 1108(e) specifies that
In Howard v. Shay, 100 F.3d 1484, 1488 (9th Cir.1996), we held that because
Because the existence of an exemption under
B. Amgen as Properly Named Fiduciary
Amgen argues that it is not a fiduciary under the Plan because it has delegated its discretionary authority. “To be found liable under ERISA for breach of the duty of prudence and for participation in a breach of fiduciary duty, an individual or entity must be a ‘fiduciary.‘” Wright v. Or. Metallurgical Corp., 360 F.3d 1090, 1101 (9th Cir.2004). In defining a fiduciary, ERISA says,
a person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority оr discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets . . . or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan.
Under ERISA, a “named fiduciary” is “a fiduciary who is named in the plan instrument.”
Amgen argues that it delegated authority to trustees and investment managers. Section 15.1 of the Plan provides, “To the extent that the Plan requires an action
The Trustee shall have the exclusive authority and discretion to control and manage assets of the Plan it holds in trust, except to the extent that . . . the Company directs how such assets shall be invested [or] the Company allocates the authority to manage such assets to one or more Investment Managers. Each Investment Manager shall have the exclusive authority to manage, including the authority to acquire and dispose of, the assets of the Plan assigned to it by the Company, except to the extent that the Plan prescribes or the Company directs how such assets shall be invested. Each Trustee and Investment Manager shall be solely responsible for diversifying, in accordance with Section 404(a)(1)(C) of ERISA, the investment of the assets of the Plan assigned to it by the Committee, except to the extent that the plan prescribes or the Committee directs how such assets shall be invested.
ERISA requires that a trustee hold plan assets in trust for plan participants.
There is no question that Amgen appоinted a trustee. However, nothing in the record indicates that Amgen appointed an investment manager. Neither ERISA nor the Plan requires that an investment manager be appointed. Even if Amgen had appointed an investment manager, the Plan makes clear that the trustee and any investment manager do not have complete control over investment decisions. See
Section 15.1 of the Plan, which authorizes the Fiduciary Committee to take action on behalf of Amgen, does not preclude fiduciary status for Amgen. In Madden v. ITT Long Term Disability Plan for Salaried Empl., 914 F.2d 1279, 1284 (9th Cir.1990), we held that the company had delegated authority to an administration committee where the plan provided that the Committee had “responsibility for carrying out all phases of the administration of the Plan” and had the “exclusive right to interpret the Plan and to decide any
Other courts have found a company‘s grant of exclusive authority to a delegate and an express disclaimer of authority to be critical. In Maher v. Massachusetts General Hospital Long Term Disability Plan, 665 F.3d 289 (1st Cir.2011), the First Circuit held that a hospital had delegated its fiduciary duties when the plan stated, “‘The Hospital shall be fully protected in acting upon the advice of any such agent . . . and shall not be liable for any act or omission of any such agent, the Hospital‘s only duty being to use reasonable care in the selection of any such agent.‘” Id. at 292. In Costantino v. Washington Post Multi-Option Benefits Plan, 404 F.Supp.2d 31 (D.D.C.2005), the district court for the District of Columbia found delegation when the plan granted the plan administrator “‘sole and absolute discretiоn‘” to carry out various Plan duties. Id. at 39 n. 8. Given that ERISA allows fiduciaries to have overlapping responsibilities under a plan, a clear grant of exclusive authority is necessary for proper delegation by a fiduciary. See
Because the Plan contains no clear delegation of exclusive authority, we reverse the district court‘s dismissal of Amgen from the case as a non-fiduciary.
Conclusion
We conclude that defendants are not entitled to a presumption of prudence, that plaintiffs have stated claims under ERISA in Counts II through VI, and that Amgen is a properly named fiduciary under the Amgen Plan. We therefore reverse the decision of the district court and remand for further proceedings consistent with this opinion.
REVERSED and REMANDED.