More than six years after the U.S. Supreme Court issued a unanimous ruling on how courts should handle stock-drop cases, defined contribution participants claiming ERISA violations are struggling to vault the high hurdle set by the court.
Since the 2014 decision in Fifth Third Bancorp et al. vs. Dudenhoeffer et al., the annual number of stock-drop suits being filed has declined, especially when compared to the annual filings during and following the Great Recession.
Many U.S. District Court judges have dismissed ERISA complaints as they abide by the Dudenhoeffer guidelines. A handful of appeals courts have reversed lower court dismissals. For those few lawsuits that climbed the litigation ladder to the Supreme Court, the justices have shown little desire to review or revise the standards for determining if a stock-drop complaint should be dismissed or allowed to go to trial.
The Dudenhoeffer decision "provided some relief" to sponsors, said Jan Jacobson, senior counsel for retirement policy at the American Benefits Council, Washington, which has filed friend-of-the-court brief in a variety of ERISA cases.
"There is still some concern among employers who have company stock in their plans," she said. "Even when a case is dismissed, there's a cost."
The court offered several guidelines:
- "Where a stock is publicly traded, allegations that a fiduciary should have recognized on the basis of publicly available information that the market was overvaluing or undervaluing the stock are generally implausible and thus insufficient to state a claim" under previous Supreme Court rulings.
- "To state a claim for breach of the duty of prudence, a complaint must plausibly allege an alternative action that the defendant could have taken, that would have been legal, and that a prudent fiduciary in the same circumstances would not have viewed as more likely to harm the fund than to help it."
- "ERISA's duty of prudence never requires a fiduciary to break the law, and so a fiduciary cannot be imprudent for failing to buy or sell stock in violation of insider trading laws."
Initially, sponsors worried that the Supreme Court's guidance would make sponsors more vulnerable to stock-drop lawsuits because it replaced the "presumption of prudence standard" establish by a 1995 Philadelphia federal appeals court decision. The standard offered a strong barrier against stock-drop lawsuits.
District Courts have, however, interpreted the Dudenhoeffer guidelines to the point that participant-plaintiffs have had little success.
"There was an immediate reaction (by sponsors) to the loss of the presumption of prudence," said Andrew L. Oringer, a New York-based partner at Dechert LLP and co-chairman of the firm's ERISA and executive compensation group.
"It became evident quickly" that the Dudenhoeffer ruling "was neutral or a net good" for sponsors, said Mr. Oringer, who represents employers in ERISA cases. "It has played out as a net good for fiduciaries."
The high court since Dudenhoeffer has declined to hear a few stock-drop petitions, sent another back to a federal appeals court on procedural grounds and issued a full-fledged opinion, which emphatically reaffirmed its guidelines issued in 2014. In that 2016 opinion, the justices supported the sponsor, Amgen Inc.
The 9th U.S. Circuit Court of Appeals in San Francisco had overturned a District Court's dismissal of ERISA complaints relating to Amgen's stock falling due to controversies over drug-marketing practices and drug safety.
The Supreme Court said the appeals court "did not correctly apply" the Dudenhoeffer guidelines, adding that it "has not found sufficient facts and allegations" to support an ERISA violations claim.
"Amgen was totally a we're-not-kidding decision," Mr. Oringer said.
Still, "Amgen doesn't necessarily stop (lower) courts from doing what they think is right," said Mr. Oringer noting that some appeals courts have issued decisions saying plaintiffs' allegations met the Dudenhoeffer standards.