The U.S. Supreme Court announced yesterday that it will not review a decision of the U.S. Court of Appeals for the Sixth Circuit on the extent to which Section 404(c) of the Employee Retirement Income Security Act shields plan fiduciaries from claims of imprudent investment in employer stock See State Street Bank and Trust Co. v. Pfeil, U.S., No. 12-256, cert. denied 12/3/12. Earlier this year, the Sixth Circuit held that, while the Section 401(k) plan participants pleaded sufficient facts to overcome the “presumption of prudence” (frequently called the "Moench" presumption) that attaches to plans that invest in employer stock, the lower court erred in applying the presumption at the motion-to-dismiss stage. According to the Sixth Circuit, plan fiduciaries cannot escape their duty of prudent investing by asserting at the pleadings stage that any losses plan participants suffered were caused by the participants' decisions to continue investing in employer stock, asserting that “[s]uch a rule would improperly shift the duty of prudence to monitor the menu of plan investments to plan participants” and would place an “unreasonable burden” on “unsophisticated” participants.
By way of background, in 2009, two General Motors Corp. employees filed a proposed class action alleging that State Street Bank and Trust Co. breached its fiduciaries duties by waiting too long to divest GM's Section 401(k) plans of their holdings in GM stock. The U.S. District Court for the Eastern District of Michigan dismissed the employees' complaint and found that, although they were likely to overcome the “presumption of prudence” that attaches to plans that invest in employer stock, they would be unable to show that State Street caused their investment losses, because the employees retained ultimate control over their investment selections. On appeal, the Sixth Circuit reversed, finding that the district court erred in applying the presumption of prudence at the motion to dismiss stage. The presumption, the appellate court said, was an evidentiary presumption, rather than an additional pleading requirement. The Sixth Circuit also found that the employees plausibly pleaded a causal connection between State Street's alleged breach and the plan losses. In so finding, the appeals court said the district court erroneously relied on the fact that the plaintiffs could divest their plan accounts of the GM stock to find that State Street's alleged breach did not cause plan losses.
In its petition for review, State Street framed the issue to the Supreme Court as whether ERISA Section 404(c) provides fiduciaries of otherwise-qualified plans a defense to liability against an imprudent investment claim when the participant's control over the investment is the proximate cause for the loss. It also asked the Court to consider a second question—whether liability under ERISA Section 409(a) for a breach of fiduciary duty claim requires that the breach constitute the proximate cause of the loss. In response to State Street's petition, the employees challenged whether a circuit split existed with respect to ERISA Section 404(c), saying that “[a]ny such circuit split, however, has no bearing on the Sixth Circuit's holding in the case because the Sixth Circuit held that 404(c) is a fact-intensive affirmative defense that the district court improperly applied on a motion to dismiss, an issue on which the courts of appeals unanimously agree.” The employees argued that State Street, as an ERISA fiduciary, “cannot breach its duty and then escape liability as a matter of law on 404(c) or causation grounds when the exact risk State Street was supposed to protect against materializes to harm the plans.” The employees also asserted that State Street's petition did not seek review of the case's “key holding,” which they contended was the holding that “GM plan participants had alleged sufficient facts to overcome the presumption of prudence,” and instead sought review of only two “narrow issues.”