IBM Stock Drop Litigation Revived by 2nd Circuit

The decision breaks from other cases in which district and appellate judges have found plaintiffs did not meet strict pleading standards established by the influential Dudenhoeffer decision.

The 2nd U.S. Circuit Court of Appeals has ruled in favor of the plaintiffs in a now-revived Employee Retirement Income Security Act (ERISA) lawsuit alleging imprudence in IBM’s management of the firm’s employee stock ownership plan (ESOP).

The plaintiffs/appellants are participants in IBM’s retirement plan, whose arguments will now be reevaluated by the U.S. District Court for the Southern District of New York. According to case documents, the plaintiffs invested in the IBM Company Stock Fund, which is an ESOP governed by ERISA. The defendants/appellees include the retirement plan committee at IBM, along with several individually named fiduciary officers charged with overseeing the retirement plan’s management.

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The plot of the “stock-drop” allegations echo previous ESOP-focused lawsuits. Plaintiffs allege that IBM began trying to find buyers for its microelectronics business in 2013, “at which time that business was on track to incur annual losses of $700 million.” Plaintiffs say IBM failed to publicly disclose these losses and continued to value the business at approximately $2 billion. Plaintiffs further allege that the plan defendants knew or should have known about these undisclosed issues with the microelectronics business.

As recounted in case documents, on October 20, 2014, IBM announced the sale of the microelectronics business to GlobalFoundries Inc. The announcement “revealed that IBM would pay $1.5 billion to GlobalFoundries to take the business off IBM’s hands and supply it with semiconductors, and that IBM would take a $4.7 billion pre‐tax charge, reflecting in part an impairment in the stated value of the microelectronics business.” Thereafter, IBM’s stock price declined by more than $12.00 per share.

At the core, the ERISA lawsuit argues defendants continued to invest the ESOP’s funds in IBM common stock despite the plan defendants’ knowledge of undisclosed troubles relating to IBM’s microelectronics business. In doing so, plaintiffs allege, the plan defendants violated their fiduciary duty of prudence to the plaintiffs under ERISA. The plaintiffs also pleaded that “once defendants learned that IBM’s stock price was artificially inflated, defendants should have either disclosed the truth about microelectronics’ value or issued new investment guidelines that would temporarily freeze further investments in IBM stock.”

In its initial ruling on these arguments, the district court determined that the plaintiffs did not plausibly plead a violation of ERISA’s duty of prudence, because a prudent fiduciary could have concluded that earlier corrective disclosure would have done more harm than good. This ruling mirrors many stock drop decisions handed down after the U.S. Supreme Court’s consequential decision in a case known as Fifth-Third vs. Dudenhoeffer.

On appeal, the plaintiffs/appellants assert that the standard expressed by the district court is actually stricter than the one set out in Dudenhoeffer and that the district court and others have applied this stricter standard in a manner that makes it functionally impossible to plead a duty‐of‐prudence violation. Taking up the appeal, the 2nd Circuit appears quite sympathetic to plaintiffs.  

The text of the appellate decision offers a detailed analysis of Dudenhoeffer and applies the pleading standards set therein to the case at hand. According to the appellate court, the Supreme Court first set out a test that asked whether “a prudent fiduciary in the same circumstances would not have viewed an alternative action as more likely to harm the fund than to help it.” This formulation, the appellate court says, suggests that lower courts must ask “what an average prudent fiduciary might have thought.”

“But then, only a short while later in the same decision, the [Supreme Court] required judges to assess whether a prudent fiduciary ‘could not have concluded’ that the action would do more harm than good by dropping the stock price,” the appellate decision explains. “This latter formulation appears to ask, not whether the average prudent fiduciary would have thought the alternative action would do more harm than good, but rather whether any prudent fiduciary could have considered the action to be more harmful than helpful.”

The appellate court says it is “not clear which of these tests determine whether a plaintiff has plausibly alleged that the actions a defendant took were imprudent in light of available alternatives.”

In the IBM case at hand, the plan defendants urge the appellate court to view Dudenhoeffer (and a related case known as Amgen) as setting out a restrictive test, noting that at least two other circuits have adopted that interpretation. Against this argument, the plaintiffs/appellants note that no duty‐of‐prudence claim against an ESOP fiduciary has passed the motion‐to‐dismiss stage since Amgen, and they therefore assert that the courts—and the plan defendants—have misread that decision.

According to plaintiffs, imposing such a heavy burden at the motion‐to‐dismiss stage runs contrary to the Supreme Court’s stated desire in Fifth Third vs. Dudenhoeffer to lower the barrier set by the presumption of prudence.

“Our sole precedential post‐Amgen duty‐of‐prudence opinion does not explicitly take a side in this dispute,” the 2nd Circuit decision states. “See Rinehart v. Lehman Bros. Holdings Inc. We need not here decide which of the two standards the parties champion is correct, however, because we find that plaintiffs plausibly plead a duty‐of‐ prudence claim even under the more restrictive ‘could not have concluded’ test.”

According to the appellate decision, the district court inappropriately held that plaintiffs failed to state a duty‐of‐prudence claim under ERISA “because a prudent fiduciary could have concluded that the three alternative actions proposed in the complaint—disclosure, halting trades of IBM stock, or purchasing a hedging product—would do more harm than good to the fund.”

“We respectfully disagree,” the appellate decision states. “Plaintiffs have limited the proposed alternative actions on appeal to just one: early corrective disclosure of the microelectronics division’s impairment, conducted alongside the regular SEC reporting process. Several allegations in the amended complaint, considered in combination and drawing all reasonable inferences in plaintiff’s favor, plausibly establish that a prudent fiduciary in the plan defendants’ position could not have concluded that corrective disclosure would do more harm than good.”

The full text of the new decision, which also includes detailed discussion of the way the circuit court views the interaction of ESOP fiduciary duties and securities law, is available for download here.

IRIC Expects Retirement Income Focus Throughout 2019

DC plans are well positioned to significantly add to American’s financial security by adopting retirement income solutions that are currently available in the market today.

The Institutional Retirement Income Council (IRIC) has published its annual review of top retirement industry trends for plan sponsors, providers and advisers to watch in 2019.

Thanks to the work of various stakeholders, IRIC says it expects a growing number of plan sponsors to evaluate and adopt retirement income solutions and decumulation strategies for their defined contribution (DC) plans.

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“The continued decline of defined benefit plans along with the Social Security trustees again projecting that both Social Security and Medicare face long-term financing shortfalls puts more pressure on define contribution plans to become income generators for future retirees,” says Bob Melia, executive director of IRIC. 

According to Melia, DC plans are well positioned to significantly add to American’s financial security by adopting retirement income solutions that are currently available in the market today. Beyond this, legislative changes that could come into play next year—say with the passage of either the Retirement Enhancement and Savings Act or the Automatic Retirement Savings Act, among others—would likely drive greater interest and adoption of guaranteed income options for DC plans.

IRIC’s analysis suggests fee compression will continue “in all areas of the marketplace.” At the same time, the advocacy organization says continued net flows out of the DC system, driven by Baby Boomer retirements, could cause continued consolidation and redoubling of efforts by recordkeepers to keep assets in DC plans. 

“Such recordkeepers could improve their revenues and increase the security of its participants by offering institutional income solutions as part of defined contribution recordkeeping services,” IRIC suggests.

Beyond a deeper focus on retirement income solutions, IRIC believes health savings accounts (HSAs) will continue to enjoy greater attention and adoption among employers.

“DC recordkeepers that integrate with HSAs will have an advantage as the definition of retirement security broadens to include health care costs late in life,” IRIC says. “Additionally, the further integration will reinforce the trend of open enrollment including 401(k) plans, giving participants better tools for deciding how to invest HSAs assets while encouraging accumulation of HSA savings for retirement.”

IRIC concludes a broader and more comprehensive view of retirement security can also help DC providers to consolidate retirement assets in the participant’s DC plan and offer draw-down strategies that increase the security of the participants who take advantage of such services.

With the prospect of slower growth and greater volatility in 2019, IRIC says the way participants react to these challenges could drive greater proliferation of, and demand for, products offering downside protection. This means participants may be more interested in stable value contracts, insurance products such as deferred annuities and guaranteed income benefits, alternative funds and real asset funds, IRIC says.

“All eyes will be on Washington and the new Congress next year as any retirement legislation could drive plan sponsor interest in offering guaranteed income options to their 401(k) plan participants,” says Martha Tejera, an IRIC member with Tejera Associates. “The bills that have been introduced signal bipartisan support for plan sponsors to adopt retirement income strategies. Additionally, plan sponsors have been taking a more proactive role in offering employees financial wellness tools, which are philosophically aligned with the intent of retirement income solutions.”

Another IRIC member, Dana Hildebrandt of Willis Towers Watson, says the increased attention paid to lifetime income “definitely presents opportunities” for all industry stakeholders.  

“In terms of products, specialized non-guaranteed (investment-only) lifetime income options emerging in the DC landscape represent a simple, straightforward compliment to annuities and guaranteed products as income options,” she says. “In terms of flexibility, amending plan documents to allow for periodic payments and systematic installments may allow recordkeepers to retain assets under management while providing participants with institutionally priced funds as they draw down their nest egg. This could benefit participants immensely as keeping assets institutionally invested through the draw down phase will allow them to receive the benefits of that pricing.”

For more research and information about IRIC, visit www.iricouncil.org.

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