Supreme Court declines to hear 401(k) company stock cases

The U.S. Supreme Court on Monday declined to hear two cases in which 401(k) plan participants accused sponsors of violating ERISA because the plans contained stock of former parent companies in the investment lineups.

The justices gave no explanation for declining to hear Gannett Co. Inc. et al. vs. Jeffrey Quatrone and Jeffrey Schweitzer et al. vs. The Investment Committee of the Phillips 66 Savings Plan et al.

Publicly traded Gannett and Phillips 66 are spinoffs of parent companies. They each offer their own company stock in the respective plans, and their plans also contained former parent company stock due to the terms of the spinoffs.

Participants in both 401(k) plans sued their respective companies and plan fiduciaries, arguing that offering parent-company stock violated ERISA's guidelines on plan menu diversification. An employer's company stock isn't subject to the ERISA diversification rule. The debate in both cases focused on whether a DC plan's lineup as a whole was diversified or whether each option — other than the employer's stock — must be diversified.

The Supreme Court's decision Monday means the rulings of the respective appeals courts remain in effect.

Mr. Quatrone sued Gannett and plan fiduciaries in March 2018 criticizing the 401(k) plan's holding of stock in Gannett's former parent, TEGNA Inc. Gannett was spun off in 2015.

His complaint said the TEGNA stock "should have been liquidated on or shortly after the date of separation." The stock was liquidated in 2018, according to court records.

A U.S. District Court in Alexandria, Va., dismissed the complaint in September 2018. However, in August 2020, a federal appeals court in Richmond, Va., reversed the dismissal and sent it back to the District Court.

"Because defendants did not monitor the merits of the fund, they did not uncover that it was an imprudent fund," the judges wrote in a 2-1 decision, referring to the TEGNA stock. "As the fund was a single-stock fund with inherent concentration risk, it is plausible that the fund was, in fact, imprudent."

Gannett petitioned the Supreme Court in October 2020.

The U.S. Justice Department in November 2021 recommended that the Supreme Court support Mr. Quatrone. "The court of appeals' decision does not warrant further review," wrote Elizabeth Prelogar, the U.S. solicitor general, in an amicus brief requested by the court.

The Gannett Retirement Plan, McLean, Va., had $1.9 billion in assets as of Dec. 31, 2020, according to the latest Form 5500.

In 2012, ConocoPhillips Corp. spun off its downstream refining, marketing and transportation operations to a new, independent company, Phillips 66, according to the participants' March 8 petition to the Supreme Court.

"Although the defendants froze new investments in the single-stock funds, they continued maintaining the funds for years as ConocoPhillips stock fluctuated in value — first rising, then plummeting to less than half its value," the petition stated.

The Phillips 66 participants sued in 2017. A U.S. District Court judge in Houston dismissed the complaint in May 2018. The U.S. 5th Circuit Court of Appeals, New Orleans, upheld the dismissal in May 2020.

"By closing the ConocoPhillips funds to new investments immediately after the spinoff, the fiduciaries also ensured that they were not offering participants an imprudent investment option," the appeals court judges wrote. "Plaintiffs were free to sell off their investments at any time and reinvest in other funds. They cannot enjoy their autonomy and now blame the fiduciaries for declining to second guess that judgment."

The Phillips 66 Savings Plan had $5.8 billion in assets as of Dec. 31, 2020, according to the latest Form 5500.