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Brotherston v. Putnam Investments, LLC

United States District Court, D. Massachusetts

June 19, 2017

JOHN BROTHERSTON and JOAN GLANCY, individually and as representatives of a class of similarly situated persons, and on behalf of the Putnam Retirement Plan, Plaintiffs,
v.
PUTNAM INVESTMENTS, LLC, PUTNAM INVESTMENT MANAGEMENT, LLC, PUNTNAM INVESTOR SERVICES, INC., the PUTNAM BENEFITS INVESTMENT COMMITTEE, the PUTNAM BENEFITS OVERSIGHT COMMITTEE, and ROBERT REYNOLDS, Defendants.

          FINDINGS OF FACT, RULINGS OF LAW, & ORDER

          WILLIAM G. YOUNG, DISTRICT JUDGE

         I. INTRODUCTION

         On November 13, 2015, John Brotherston (“Brotherston”) and Joan Glancy (“Glancy”), individually and on behalf of a class of similarly situated persons and the Putnam Retirement Plan (“Plan”) (collectively, the “Plaintiffs”), brought this class action under section 502(a) of the Employee Retirement Income Security Act of 1974 (“ERISA”), codified as amended at 29 U.S.C. §§ 1001-1461, against the Plan's fiduciaries: Putnam Investments, LLC, Putnam Investment Management, LLC, Putnam Investor Services, Inc., the Putnam Benefits Investment Committee, the Putnam Benefits Oversight Committee, and Putnam's Chief Executive Officer Robert Reynolds (collectively, the “Defendants”), for breach of the fiduciary duties of loyalty and prudence in violation of 29 U.S.C. § 1104(a)(1)(A)-(B) (count I), prohibited transactions with a party in interest in violation of 29 U.S.C. § 1106(a)(1) (count II), prohibited transactions with a fiduciary in violation of 29 U.S.C. § 1106(b) (count III), failure to monitor in violation of 29 U.S.C. § 1109(a) (count IV), and other equitable relief based on ill-gotten proceeds under 29 U.S.C. § 1132(a)(3) (count V). Second Am. Compl. (“SAC”) ¶¶ 117-48, ECF No. 73.

         Following a case stated hearing[1] on March 30, 2017, this Court entered judgment for the Defendants on counts II and III. Order, ECF No. 158. A bench trial on the remaining counts commenced before this Court on April 7, 2017. Upon the conclusion of the Plaintiffs' final witness, the Defendants moved for judgment on partial findings pursuant to Rule 52(c) of the Federal Rules of Civil Procedure. Defs.' Mot. J. Partial Findings Fed.R.Civ.P. 52(c), ECF No. 167. The parties briefed the issues. Pls.' Mem. Opp'n Defs.' Mot. J. Partial Findings Fed.R.Civ.P. 52(c) (“Pls.' Opp'n”), ECF No. 189; Mem. Supp. Defs.' Mot. J. Partial Findings Fed.R.Civ.P. 52(c) (“Defs.' Mem.”), ECF No. 168; Defs.' Suppl. Br. Supp. Mot. J. Partial Findings Fed.R.Civ.P. 52(c) (“Defs.' Suppl. Br.”), ECF No. 190. Having heard oral argument on the Defendants' motion, this Court now makes the following findings of fact and rulings of law.

         II. THE LEGAL FRAMEWORK

         A. Judgment on Partial Findings

         A Rule 52(c) motion for judgment on partial findings is the analogue of a Rule 50(c) motion for directed verdict in a jury trial.[2] See Federal Ins. Co. v. HPSC, Inc., 480 F.3d 26, 32 (1st Cir. 2007); Northeast Drilling, Inc. v. Inner Space Servs., Inc., 243 F.3d 25, 37 (1st Cir. 2001) (characterizing defendant's motion for judgment after plaintiff rested at bench trial as a motion for judgment on partial findings, rather than as a motion for judgment as a matter of law under Rule 50(c)). A court should enter a judgment under Rule 52(c) only “[w]hen a party has finished presenting evidence and that evidence is deemed . . . insufficient to sustain the party's position.” Morales Feliciano v. Rullan, 378 F.3d 42, 59 (1st Cir. 2004); see also Halpin v. Atkinson-Kiewit, J.V., 894 F.Supp. 486, 494 (D. Mass. 1995) (Collings, M.J.) (“Rule 52(c) plainly permits the court to decline to render any judgment until the close of all the evidence.”).

         This rule promotes efficiency. If a party bearing the burden of proof fails to persuade the court once it has been fully heard on a crucial issue, the court need not forge ahead to finish the case, but may make its findings on that issue against the party and thus dispose of the case. While this makes eminent sense, it places the court in the somewhat awkward position of making factual findings absent a complete evidentiary record developed by the contending parties.

         B. The Substantive Legal Framework

         This is an equitable action to charge a group of trustees. Like its closest analogue -- an action at law to recover for a statutory tort -- it requires proof of three matters, viz.: 1) a violation of a statutory duty, 2) loss causation, and 3) damages.[3] The Court considers these issues in turn.

         1. Statutory Duties Under ERISA

         a. Duty of Loyalty

         Under ERISA, retirement plan trustees are fiduciaries who owe a duty of loyalty to plan participants. 29 U.S.C. § 1104(a)(1)(A); Bunch v. W.R. Grace & Co. (Bunch I), 532 F.Supp.2d 283, 288 (D. Mass. 2008) (“ERISA fiduciaries owe participants duties of prudence and loyalty.” (citing Moench v. Robertson, 62 F.3d 553, 561 (3d Cir. 1995)), aff'd, 555 F.3d 1 (1st Cir. 2009). The duty of loyalty requires fiduciaries to administer the plan “solely in the interest of the [plan] participants and beneficiaries” and “for the exclusive purpose” of providing them with benefits. Bunch I, 532 F.Supp.2d at 291-92; see also Pegram v. Herdrich, 530 U.S. 211, 224 (2000); Vander Luitgaren v. Sun Life Assurance Co. of Can., 765 F.3d 59, 65 (1st Cir. 2014); Glass Dimensions, Inc. ex rel. Glass Dimensions, Inc. Profit Sharing Plan & Tr. v. State St. Bank & Tr. Co., 931 F.Supp.2d 296, 304-05 (D. Mass. 2013) (Tauro, J.); Alves v. Harvard Pilgrim Health Care, Inc., 204 F.Supp.2d 198, 214 (D. Mass. 2002) (Saris, J.), aff'd, 316 F.3d 290 (1st Cir. 2003).

         It is well-established that under ERISA, “a fiduciary does not breach its duty of loyalty solely by conducting other activities that relate to or impact the Plan.” Bunch I, 532 F.Supp.2d at 291 (citing Hughes Aircraft Co. v. Stanley Jacobson, 525 U.S. 432, 443-46 (1999)). Accordingly, identifying a potential conflict of interest alone is not sufficient to establish a breach of the duty of loyalty. See Pegram, 530 U.S. at 225 (2000) (“Under ERISA, . . . a fiduciary may have financial interests adverse to beneficiaries.”); DiFelice v. U.S. Airways, Inc., 497 F.3d 410, 421 (4th Cir. 2007). Nor is it sufficient merely to point to a defendant's self-dealing, such as the investment of plan assets in their own mutual funds. See Dupree v. Prudential Ins. Co. of Am., No. 99-8337, 2007 WL 2263892, at *45 (S.D. Fla. Aug. 10, 2007) (“Simply because [the plan sponsor] followed such a practice . . . does not give rise to an inference of disloyalty, especially where these practices are universal among plans of the financial services industry.”). In fact, the Department of Labor explicitly allows, and courts have upheld, financial services institutions' practice of offering their own investment products to their own sponsored plans. See, e.g., Hecker v. Deere & Co., 556 F.3d 575, 586 (7th Cir. 2009) (finding “no statute or regulation prohibiting a fiduciary from selecting funds from one management company”); Participant Directed Individual Account Plans, 56 Fed. Reg. 10, 724, 10, 730 (Mar. 13, 1991) (to be codified at 29 C.F.R. pt. 2550) (noting that it would be “contrary to normal business practice for a company whose business is financial management to seek financial management services from a competitor”).

         In order to prevail on a claim for breach of the duty of loyalty, the Plaintiffs must show by a preponderance of the evidence that the Defendants, while wearing their ERISA fiduciary hats, failed to “‘discharge [their] duty with respect to the plan solely in the interest of the participants and beneficiaries and for the exclusive purpose of providing benefits to participants and their beneficiaries.'” Bunch I, 532 F.Supp.2d at 291 (quoting 29 U.S.C. § 1104(a)(1)(A)). In making this inquiry, courts take into consideration “the totality of the circumstances.” See Bunch v. W.R. Grace & Co. (Bunch II), 555 F.3d 1, 7 (1st Cir. 2009) (citing DiFelice, 497 F.3d at 418; Keach v. U.S. Tr. Co., 419 F.3d 626, 636-37 (7th Cir. 2005)); Kenney v. State St. Corp., No. 09-10750-DJC, 2011 WL 4344452, at *3 (D. Mass. Sept. 15, 2011) (Casper, J.).

         The “Exclusive Benefit Rule” of section 1104(a)(1)(A) is rooted in the trust law duty of loyalty. Peter J. Wiedenbeck, ERISA in the Courts 155 (2008). The trust law duty of loyalty, however, is governed by an objective test, Restatement (Second) of Trusts § 170, whereas courts have held that “the Exclusive Benefit Rule looks to the fiduciary's subjective motivation in determining whether the fiduciary is in compliance with the rule, ” A.F. v. Providence Health Plan, 173 F.Supp.3d 1061, 1073 (D. Or. 2016) (citing Wiedenbeck, supra, at 156); see also Varity Corp. v. Howe, 516 U.S. 489, 506 (1996); Perez v. First Bankers Tr. Servs., Inc., 210 F.Supp.3d 518, 534 (S.D.N.Y. 2016) (“[T]he duty of loyalty is grounded in the motivation driving a fiduciary's conduct, and liability will not lie where a fiduciary's decisions were motivated by what is best for the [plan], even if those decisions also incidentally benefit the fiduciary.”); Degnan v. Publicker Indus., Inc., 42 F.Supp.2d 113, 120 (D. Mass. 1999) (Garrity, J.).

         The Plaintiffs' burden, therefore, is to point to the Defendants' motivation behind specific disloyal conduct. In re McKesson HBOC, Inc. ERISA Litig., 391 F.Supp.2d 812, 834-35 (N.D. Cal. 2005) (“[T]he duty of loyalty requires fiduciaries to refrain from actual disloyal conduct, not simply running the risk that such behavior will occur.”). Examples of disloyal conduct might include “mislead[ing] plan participants about the operation of a plan, ” Adamczyk v. Lever Bros. Co., Div. of Conopco, 991 F.Supp. 931, 939 (N.D.Ill. 1997), or “receiv[ing] commissions from insurance companies, ” Patelco Credit Union v. Sahni, 262 F.3d 897, 911 (9th Cir. 2001).

         b. Duty of Prudence

         ERISA fiduciaries also owe participants a duty of prudence, according to which they must “act with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use.” 29 U.S.C. § 1104(a)(1)(B); see also Tibble v. Edison Int'l, 135 S.Ct. 1823, 1828 (2005) (“[A] trustee has a continuing duty to monitor trust investments and remove imprudent ones.”); Bunch II, 555 F.3d at 7; Beddall v. State St. Bank & Tr. Co., 137 F.3d 12, 18 (1st Cir. 1998).

         A prudent fiduciary need not, however, follow a uniform checklist. See Tatum v. RJR Pension Inv. Comm., 761 F.3d 346, 358 (4th Cir. 2014). Instead, a variety of actions can support a finding that a fiduciary acted with prudence. Id. In general, “ERISA requires fiduciaries to employ ‘appropriate methods to investigate the merits of the investment and to structure the investment' as well as to ‘engage[] in a reasoned decision[-]making process, consistent with that of a ‘prudent man acting in [a] like capacity.'” Id. (quoting DiFelice, 497 F.3d at 420). “[T]he test of prudence . . . is one of conduct, and not a test of the result of performance of the investment.” Bunch II, 555 F.3d at 7; see also Donovan v. Cunningham, 716 F.2d 1455, 1467 (5th Cir. 1983). A breach of the duty of prudence, therefore, “cannot be measured in hindsight.” DiFelice, 497 F.3d at 424; see also Roth v. Sawyer-Cleator Lumber Co., 16 F.3d 915, 917-18 (8th Cir. 1994) (“[T]he prudent person standard is . . . a test of how the fiduciary acted viewed from the perspective of the time of the [challenged] decision rather than from the vantage point of hindsight.” (alteration in original) (quoting Katsaros v. Cody, 744 F.2d 270, 279 (2d Cir. 1984)) (internal quotation marks omitted)). Rather, the appropriate test is whether the fiduciary behaved like “a prudent investor [would have behaved] under similar circumstances, ” Hecker, 556 F.3d at 586, given “the totality of the circumstances involved in the particular transaction, ” Bunch I, 532 F.Supp.2d at 288. The crucial question is whether the defendants “took into account all relevant information in performing [their] fiduciary duty under ERISA.” Id. Importantly, ERISA does not require a fiduciary to maximize the value of investments or “follow a detailed step by step process to analyze investment options.” Id. at 287 (citing Roth, 16 F.3d at 917-18).[4]

         2. Loss Causation

         ERISA requires plaintiffs to prove losses to the plan for any breach of fiduciary duty claim. Evans v. Akers, 534 F.3d 65, 74 (1st Cir. 2008) (“ERISA § 409 . . . requires fiduciaries who breach their duties ‘to make good to such plan the losses to the plan resulting from such breach.'” (citing 29 U.S.C. §§ 1109(a), 1132(a)(2))). Section 1109(a) provides that “[a]ny person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this subchapter shall be personally liable to make good to such plan any losses to the plan resulting from each such breach.” 29 U.S.C. § 1109(a). Section 1132(a)(3) further allows the Court to award “other appropriate equitable relief” for ERISA violations. 29 U.S.C. § 1132(a)(3).

         Courts have consistently ruled that plaintiffs bear the burden of persuasion to establish loss to the plan as a result of the breach. Circuits split, however, on whether this burden shifts upon a plaintiff's prima facie showing. The Fourth, Fifth, and Eighth Circuits, applying trust law principles, have held that the fiduciary bears the burden of disproving loss causation once a plaintiff shows breach of a fiduciary duty. Tatum, 761 F.3d at 363 (4th Cir. 2014); McDonald v. Provident Indem. Life Ins. Co., 60 F.3d 234, 237 (5th Cir. 1995); Martin v. Fellen, 965 F.2d 660, 671 (8th Cir. 1992). In contrast, the Second, Sixth, Ninth, Tenth, and Eleventh Circuits have all refused to adopt burden shifting in ERISA breach of fiduciary duty claims. Pioneer Centres Holding Co. Emp. Stock Ownership Plan & Tr. v. Alerus Fin., N.A., No. 15-1227, 2017 WL 2415949, at *10 (10th Cir. June 5, 2017); Silverman v. Mutual Benefit Life Ins. Co., 138 F.3d 98, 104 (2d Cir. 1998); Wright v. Oregon Metallurgical Corp., 360 F.3d 1090, 1099 (9th Cir. 2004); Kuper v. Iovenko, 66 F.3d 1447, 1459-60 (6th Cir. 1995), abrogated on other grounds by Fifth Third Bancorp v. Dudenhoeffer, 134 S.Ct. 2459 (2014); Willett v. Blue Cross & Blue Shield of Ala., 953 F.2d 1335, 1343-44 (11th Cir. 1992). The First Circuit has not yet addressed this issue.

         3. Damages

         Because this is an equitable action to charge the trustees, the Plaintiffs need only to prove the aggregate loss to the Plan. See Cal. Ironworkers Field Pension Tr. v. Loomis Sayles & Co.,259 F.3d 1036, 1047 (9th Cir. 2001) (“[A] fiduciary is liable for the total aggregate loss of all breaches of trust and may reduce liability for the net loss of multiple breaches only when such multiple breaches are so related that they do not constitute separate and distinct breaches.” (citing Restatement (Third) of Trusts § 213)). Conceptually at least, with liability established, there would be no problem with requiring the Defendants to sort out damages to each class member, potentially off-setting any voluntary contributions or other payments the class member received from the Defendants. See In re Nexium (Esomeprazole) Antitrust Litig., 309 F.R.D. 107, 135 (D. Mass. 2015) (“[Had] liability been established, my idea was to shift to the Defendants the burden of going forward with evidence of lack of injury to particular class members, while leaving the [] Plaintiffs with the ultimate burden of persuasion as to the damages suffered by particular ...


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