A U.S. District Court judge in New York has dismissed for the second time a lawsuit by a participant in the Nestle 401(k) Savings Plan that Voya Financial and several affiliates violated their ERISA duties through an agreement with Financial Engines to provide investment advice to participants.
Neither Nestle USA nor Financial Engines were cited as defendants in the case of Patrico et al. vs. Voya Financial Inc. et al., which sought class-action status.
The original lawsuit, filed in 2016, was first dismissed on June 20, 2017. District Court Judge Lorna Schofield said the suit "failed adequately to allege that any defendant was an ERISA fiduciary with respect to fees" charged for investment advice.
On Tuesday, Ms. Schofield dismissed the attempt by plaintiff Lisa Patrico to file an amended complaint alleging nine ERISA violations. "None of the claims could survive a motion to dismiss," the judge wrote in ordering the case closed. The original lawsuit made two claims of ERISA violations.
The plaintiff had argued that Voya, as the Nestle plan's record keeper, had received a fee for advisory services "that it did not provide and to which it was not entitled," thanks to an agreement with Financial Engines, according to court documents. Ms. Schofield's ruling this week said the plaintiff had failed to show that any of the Voya defendants were fiduciaries.
