Industry Groups Push to Dismiss PRT Lawsuit Against Bristol-Myers Squibb

The ERISA Industry Committee, American Benefits Council and the Committee on Investment of Employee Benefit Assets Inc. are encouraging the dismissal of a lawsuit filed against Bristol-Myers Squibb Co. over a pension risk transfer it conducted in 2019 with Athene Annuity and Life Co.

The industry groups filed an amicus brief on Thursday, arguing that the plaintiffs lack standing and that the continuation of the case threatens a surge in frivolous litigation.

In Doherty v. Bristol-Myers Squibb, filed in U.S. District Court for the Southern District of New York last September, former employee Charles Doherty said the pharmaceutical company, along with its independent fiduciary State Street Global Advisors Trust Co., failed to select the safest insurer available when it entered into a $2 billion PRT deal with Athene, claiming the insurance company is “highly risky.”

Several other companies, including AT&T Inc., General Electric Co. and Lockheed Martin Corp., have also been sued over PRT deals with Athene. The plaintiffs in the Bristol-Myers and AT&T cases are represented by law firms Edward Stone Law P.C. and Zuckerman Spaeder LLP, and the plaintiffs in the other cases are represented by Schlichter Bogard LLP.

A spokesperson from Athene said in a statement, “These complaints are entirely baseless attempts by class action attorneys to enrich themselves at the expense of retirees. Every pension group annuity participant whose benefits have been guaranteed by Athene has received and will receive their promised benefits in full. In each pension group annuity transaction for which Athene has been selected, there has been a robust review process carried out by a fiduciary and their independent advisers who are experts at assessing insurer safety…”

The industry groups argued in their brief that the use of annuities to provide pension benefits is a long-standing practice and that the plaintiffs “do not cite a single instance in which any of those participants were paid anything less than their [Employee Retirement Income Security Act] plans would have paid them.”

“Like the 401(k) fee class actions that came before them, this new wave of pension risk transfer litigation appears to be the next proverbial pot of gold for the plaintiffs’ bar,” said Tom Christina, executive director of the ERIC Legal Center, in a statement. “If meritless claims like this advance beyond swift dismissal, there is significant risk the floodgates will burst open, and plaintiffs’ firms will get a big payday while employers and employees will be faced with big legal bills and an even bigger threat to the retirement system we know today. This would be devastating to plan sponsors and, in turn, to the participants who rely on them for jobs and benefits.”

The industry groups further argued that allowing the anti-PRT litigation to proceed would be “directly contrary” to one of the central purposes of ERISA, because it would undermine plan sponsors’ ability to make settlor decisions about their plans and create “significant disincentives” for employers to establish plans.

The brief stated that these PRT claims should be rejected at the pleading stage, because if they survive motions to dismiss, other similar suits are likely to follow, which would come at a great cost to plans and, ultimately, plan participants.

In regard to Athene, the groups argued that the Doherty plaintiffs failed to allege facts that support their theory that their benefits are at a greater risk now that Athene is making the annuity payments.

“As a result of the transaction they seek to challenge, plaintiffs’ benefits are secured by irrevocable commitments from a regulated insurance provider, and Athene is obligated to pay plaintiffs everything they would have received under the plan,” the brief stated.

As a result, the groups argued that the plaintiffs lack standing because they have received all of their vested pension benefits so far and are legally entitled to receive the same monthly payments for the rest of their lives.

“Winning or losing this suit would not change the plaintiffs’ monthly pension benefits,” the brief stated.

The Doherty plaintiffs also allege that because they are no longer participants in an ERISA plan, they have been injured because they no longer have the Pension Benefit Guaranty Corporation backing their pensions if the payor defaults on its obligations. In response, the industry groups argued that losing PBGC coverage is not an injury and that PBGC guarantees are capped by law, and they both can and have resulted in a reduction of promised benefits for participants in the past.

“The selection of Athene did not cause the harm plaintiffs complain about; they are instead scapegoating that selection to create an avenue to attack all pension risk transfers,” the brief stated.

Bristol-Myers and SSGA filed a motion to dismiss the case on January 15, and the industry groups filed in support of a dismissal.

Law firm Covington & Burling LLP is representing Bristol-Myers and SSGA in the case.