The quest for a predictable and fair pleading standard to stop ERISA class action litigation abuse continues. The Supreme Court in Hughes v. Northwestern gave us a limited opinion that did not solve the problem, and even that opinion initially has caused more confusion in the district courts. So the battle continues in the appellate courts. After the Ninth Circuit issued two advisory opinions following Hughes that allowed challenges to revenue sharing, the Sixth Circuit provided more clarity in CommonSpirit and TriHealth that unsubstantiated challenges to actively managed investments are not permitted under ERISA. Now the Seventh Circuit, in a surprising move, has issued an August 29 opinion in the Albert v. Oshkosh case that largely follows the Sixth Circuit’s attempt to limit hindsight attacks on discretionary investment choices by plan fiduciaries. Instead of deferring to a decision on the remanded Northwestern case, the Seventh Circuit in Oshkosh has issued an opinion that limits the ability of plaintiff law firms to create a liability trap for plan fiduciaries who utilize revenue sharing and active funds in their investment lineup. The Oshkosh opinion does not address the pleading standard for retail share class and alleged underperformance claims, however, and thus is not a cure-all, but represents progress towards a fair and predictable fiduciary standard of care for plan fiduciaries.
The Oshkosh Excessive Fee Case
The Oshkosh defined contribution plan in 2018 had 12,914 participants with over $1.1 billion in assets. Although not clear from the original and amended complaints, it appears based on the motion to dismiss that the plan paid recordkeeping fees exclusively through revenue sharing arrangements with Fidelity as the plan recordkeeper, meaning that the total fees paid by participants for investment management and recordkeeping are all reflected in the investment expense ratios, which ranged from .035% to 1.08%. The plan’s QDIA appears to be the Fidelity Freedom target-date funds in K class shares that ranged from .45 to .65% with 20 bps of revenue sharing. The plan offered a Vanguard institutional index fund at .035% and approximately twenty-nine other active funds.
The Walcheske & Luzi law firm filed the initial complaint in June 2020 in conjunction with nine virtually identical lawsuits filed in the District Courts of Wisconsin in just a two month time frame. They have filed many other similar cases since then. The initial complaint alleged excessive recordkeeping and investment expenses without even detailing the amount of recordkeeping fees actually paid to Fidelity as the recordkeeper. The allegations regarding excessive investment expenses were comparisons of the Fidelity Freedom K shares at .45 — .65% to the .32% lower fees that Fidelity charges for its target-date blend investments – a completely different investment strategy and offering. After the initial motion to dismiss, Walcheske filed a First Amended Complaint, this time with somewhat more detail. The first claim was that the plan recordkeeping fees were excessive based on annual Form 5500 filings by the plan. Plaintiff calculated that the plan allegedly paid an average of $87 per participant or $1,004,305 to Fidelity as the recordkeeper over the prior six years. Notably, there was no specific mention that the plan uses revenue sharing, or whether the amount in the Form 5500 was adjusted for any amount of revenue sharing that was rebated back to the plan and/or plan participants. [But footnote 8 to the motion to dismiss cited the financial statements attached to the 2017 Form 5500 showing $923,207 in revenue sharing rebates from Fidelity. Taken to its logical conclusion, this would almost entirely negate the entire $1m approximate recordkeeping fee if rebated to participants, but the defense did not state whether the amount was rebated to plan participants, so this cannot be assumed]. Second, the complaint alleged the use of imprudent share classes and high investment fees. To prove their investment fee claim, plaintiff admitted they had invented a brand new theory to judge plan expenses. Their “net investment expense to retirement plans” theory purported to claim that nine of the plan’s investments should have been purchased in a different share class to yield the lowest possible fee. For eight of the nine investments, plaintiff argued that the plan should have chosen a higher fee share class with higher revenue sharing, because the result would have been a lower ultimate investment fees. Of particular note, neither the share class nor net investment expense theory was applied to the Class K Fidelity Freedom target-date funds. Instead, plaintiff inexplicably argued instead that the Fidelity Freedom funds with a 20 bps revenue sharing amount should have been replaced with a passive target-date suite from Vanguard, which was offered from .12-.15% at the time. In other words, the Fidelity Freedom funds were not alleged to be in the wrong share class, but rather were allegedly imprudent because a passive alternative would have been more prudent. Plaintiffs also alleged that the plan fiduciaries paid excessive investment management fees to Strategic Advisors, Inc. as the plan’s investment advisor, but offered no comparison to judge how the approximate $1m advisor fee was too high. The final claim was that the plan failed to communicate the total fees of the plan, which was also unclear, but based on the motion to dismiss filings, we interpret this claim to mean that that plan did not disclose the revenue sharing agreement with Fidelity.
The district court granted Oshkosh’s motion to dismiss the First Amended Complaint. First, the district court dismissed the breach of fiduciary duty for excessive recordkeeping fees – that the nine purportedly comparable plans paid less for recordkeeping fees – because this did not plausibly “suggest[] that the fee charged by Fidelity [was] excessive in relation to the services provided.” The district court also dismissed both claims relating to alleged excessive investment fees. As to the share-class allegations, the court rejected the novel net investment expense to retirement plans theory invented by the Walcheske law firm: “Plaintiff’s preference for different share classes of certain investments is not enough to state a plausible claim for breach of fiduciary duty.” As to the high-cost fund allegations, “[t]he fact that the Plan offered certain actively managed options does not establish that Defendants acted imprudently.”
The Seventh Circuit’s Oshkosh Decision
To better understand the Oshkosh decision, you have to remember that before the Supreme Court’s decision in January 2022 in Hughes v. Northwestern, the Seventh Circuit was considered the most plan-friendly circuit in the country. The district courts in the Seventh Circuit rejected many excessive fee cases as “paternalistic.” In one of our favorite cases, the district court in Martin v. CareerBuilder, LLC summed up the Seventh Circuit’s decision in Divane v. Northwestern as “one in a line of Seventh Circuit cases preventing courts from paternalistically interfering with [p]lans’ slate of funds[.]”1
The key issue at oral argument in Oshkosh, therefore, was the ramifications of the Supreme Court’s Hughes v. Northwestern decision: whether the Supreme Court in Hughes had overruled all of the Seventh Circuit’s holdings in the Divane case and “radically reinvent[ed] this area of law.” The Divane court had blessed many of the features that have been attacked as imprudent under fiduciary law in over four hundred cases: uncapped revenue sharing; allegedly high recordkeeping fees based on alleged failure to conduct RFPs for lower fees; alleged high-fee active funds; and alleged improper use of retail share class by failing to leverage the size of the plans. The Divane court had many grounds for their opinion, but the chief ground was that participants had the choice in a diverse plan with many investment options to limit the fees they paid by choosing the low-fee index funds and avoiding the higher-fee actively managed investment options. Judge Easterbrook had opined in oral argument that the Supreme Court had taken the position that plans can only defend the prudence of their decision making in a motion for summary judgment. In response, the lawyers at Morgan Lewis advocated that the Hughes decision was a limited decision that only rejected the bright-line rule that participant choice of low-cost funds negates a challenge to higher-cost active funds. As Morgan Lewis aptly summarized, “it simply reinforced that ‘ERISA does not allow the soundness of investments A, B, and C to excuse the unsoundness of investments D, E, and F.’” The key issue in the Oshkosh appeal, therefore, was whether the Supreme Court’s decision invalidated the entire reasoning of the Divane court – beyond just the categorical investor choice rule. We do not know what changed from the oral argument to the August 29 decision – and the change of heart may have been influenced by the well-reasoned CommonSpirit decision issued by the Sixth Circuit – but the Seventh Circuit began its analysis by declaring that the Hughes decision by the Supreme Court was limited, and that “[a]t no point did the [district] court [in Albert v. Oshkosh] rely on the categorical rule the Supreme Court rejected in Hughes.
Standing: The Seventh Circuit first addressed the issue of standing. The complaint was filed by a single plaintiff. The complaint made no attempt to allege whether the sole plaintiff was invested in any or all of the twenty-nine investments that he challenged. Oshkosh thus argued that Albert lacked standing to bring ERISA claims challenging investment options he never held in his own investment account. The Seventh Circuit held that it was a “factual challenge to standing” and allowed any claim that “seemingly affect all participants in the Plan,” including excessive recordkeeping fees and excessive investment-advisor fees. The Court conceded that plaintiff’s claim for excessive investment-management fees was more complicated, because it is difficult to see how he suffered an injury in fact if he did not invest in the investment being challenged. The evidence at the motion to dismiss stage only showed that he invested in at least some of the actively managed claims. It is not even clear that he invested in the Fidelity Freedom target-date funds, as footnote 3 in the decision states that “plaintiffs’ third theory, offering a needlessly expensive suite of funds (the Fidelity Freedom Funds), does not align closely with Albert’s complaint.” Notwithstanding these concerns, however, the Court found that owning some of the plan investments “is sufficient at this juncture to conclude Albert has standing for his investment-management claims.” Needless to say, this is a really low bar to allow standing to allege fiduciary malpractice.
Recordkeeping Fees
After rejecting the standing argument, the Court first addressed plaintiff’s claim that the plan’s recordkeeping fees of $87 average per participant was imprudent by failing to regularly solicit competitive bids, compared to what the defense called was a “random assortment of nine other plans from around the country.” The Court recounted that in Divane v. Northwestern, “we rejected the notion that a failure to regularly solicit quotes or competitive bids from service providers breaches the duty of prudence.” The Court stated that the Supreme Court “did not hold that fiduciaries are required to regularly solicit bids from service providers.” This means that the Supreme Court did not overrule the Seventh Circuit’s precedent in Hecker v. Deere that plan sponsors are not required to search for a recordkeeper willing to take $35 per participant as the Northwestern and dozens of other complaints have asserted. The Court cited to the Sixth Circuit’s decision in Smith v. CommonSpirit Health2 in which the Sixth Circuit held that a claim of excessive recordkeeping fees is only plausible if comparing the fees relative to the services provided. The Seventh Circuit specifically stated that it agreed with the Sixth Circuit that the Hughes decision had no bearing on recordkeeping claims. The Court thus dismissed the recordkeeping claims because “[t]hat claim fails under our precedent that Hughes left untouched.” The Court did warn, however, that “[i]n so holding, we emphasize that recordkeeping claims in a future case could survive the ‘context-sensitive scrutiny of a complaint’s allegations’ courts perform on a motion to dismiss.”
Excessive Investment Fees
The Court then addressed plaintiff’s claims that Oshkosh breached its duty of prudence by paying unreasonably high fees to Fidelity for investment management under plaintiff’s “Net Investment Expense to Retirement Plans.” Walcheske defined the concept as “the share class that gives plan participants access to portfolio managers at the lowest net fee for the services of the portfolio manager.” The Court rejected plaintiff’s theory, however, because the Form 5500 on which plaintiff relies does not require plans to disclose “precisely where money for revenue sharing goes.” Because some revenue sharing goes to the recordkeeper, but some amount may be rebated to the participant, there is “not necessarily a one-to-one correlation that such revenue sharing always redounds to investor’s benefit.” The Court therefore rejected the “novel theory” that ERISA requires a fiduciary to choose investment options, including higher-fee share classes if revenue sharing is higher, as unsupported under the law.
The Court then addressed the more common second excess investment fee theory that some of the plan’s actively managed funds were too expensive compared to passive funds. Citing the Sixth Circuit in CommonSpirit, the court held that “[t]he fact that actively managed funds charge higher fees than passively managed funds is ordinarily not enough to state a claim because such funds may also provide higher returns.” The Court concurred with the Sixth Circuit that the Supreme Court’s decision in Hughes “does not require a radically different approach to claims alleging excessive investment-management fees.” The Court found plaintiff’s claim that the plan fiduciaries failed to consider less expensive passive investments “threadbare” because the claim lacked a “sound basis for comparison.” Finally, the Court rejected the claim that the plan paid excessive investment advisor fees for the same reason that plaintiff failed to provide any basis for comparison between the fees paid to the plan’s investment advisor and any other service provider in the market.
Key Takeaways from the Oshkosh Decision
The key takeaway from Oshkosh is that we now have both the Seventh and Sixth Circuit’s interpreting the Supreme Court’s decision in Hughes v. Northwestern narrowly. Plaintiff’s counsel took the position in oral argument that the Hughes decision overturned all of the Divane rulings relating to revenue sharing and comparisons of active funds to passive funds. That argument seemed to be accepted in oral argument, but it was firmly rejected in the opinion. The Seventh and Sixth Circuits have now confirmed that it is intellectually dishonest to twist the Supreme Court’s decision in Hughes to be anything other than a limited decision rejecting the categorical rule that investor choice can override any imprudent investment in the plan.3 The Court cited Forman v. TriHealth, Inc. in which the Sixth Circuit noted that Hughes “rejected a bright line rule, derived from Hecker and Loomis, that a broad menu of funds could itself defeat an imprudence claim premised on one particular offering that performed poorly or had high fees.”4
While the correct interpretation of Hughes, this still requires plan sponsors to change their mode of defense. Before the Hughes decision, plan sponsors used to argue that excessive fee complaints should be dismissed because participants had the choice of low-fee index funds, and could avoid high plan fees by avoiding the active investments. Indeed, if you read the motions to dismiss in the Oshkosh case, a significant part of the defense was that participants could control their costs by choice – they could choose higher fee active investments, or lower fee passive investments. In other words, drawing straight from the Divane v. Northwestern decision, plan sponsors used to argue that the amount of fees paid were in the participant’s control as long as the plan offered at least one low-fee index fund. This logical line of attack is now gone.
The second takeaway is that standing for excessive fee lawsuits continues to be the bare minimum. The Oshkosh court allowed standing to a sole participant to represent over 12,000 plan participants even though it was not clear that the plaintiff even owned many of the funds being challenged. This demonstrates that plan sponsors appear to have lost this issue. Courts continue to allow standing for even the most tangential relationship to the plan – even if you are no longer in the plan, and now even if you did not select all of the challenged funds. Maybe this issue is still viable for class certification, but it is very expensive to challenge class certification and often not cost-effective. For all practical purposes, courts are granting standing based on even tangential relationships to the plan.
The third takeaway is that an appellate court has rejected the Walcheske excessive recordkeeping fee playbook in which the challenged plan is compared to five to nine other random plans. The Court specifically stated that excessive recordkeeping fee claims are potential plausible, but plaintiffs will need better comparisons based on services provided. This is the first appellate court to point out the obvious flaw in the dozens of cases that rely on flawed and inaccurate data in the Form 5500 to allege excessive recordkeeping fees. Plaintiffs have been making comparisons to random plans, and the Seventh Circuit calls this out as unpersuasive. Plaintiffs will now have to find a credible benchmark for recordkeeping fees to support their cases. Based on Euclid’s internal database of thousands of plans, we believe this will be hard for plaintiffs to accomplish, because the reality is that most large plans pay more than the arbitrary $35 per participant that plaintiff law firms have been alleging for years without any proof. This will be the easiest claim to debunk based on real-world data. Plaintiff law firms will also have to compare actual services on a service-by-service basis, instead of claiming that all recordkeeping fees are one-size-fits-all commodities with no differentiation of services provided. Plan sponsors must also develop better evidence that recordkeeping services vary plan to plan, and are not commodity products. Most motions to dismiss are weak on this defense, except some firms are now pointing to product codes in the Form 5500 recordkeeping disclosure to distinguish the level of recordkeeping services. We believe that the level of cybersecurity protection is one critical way to differentiate recordkeeping services, but more work needs to be done on this issue.
The fourth takeaway is that the Seventh Circuit has again taken the position that revenue sharing cannot be challenged without more context. The Seventh Circuit dismissed the claims of excessive recordkeeping fees in Divane based on revenue sharing, and the Oshkosh Court similarly dismissed recordkeeping claims against the Oshkosh plan that appears to have used revenue sharing as the sole way to pay its plan administration costs. Plaintiffs made no effort to confirm whether any of the revenue sharing was rebated to plan participants, and the defense cited this deficiency in its motion to dismiss. The defense took an aggressive position that the “use of revenue sharing empowered individual participants to minimize their individual costs, including recordkeeping fees, if that was an important aspect of their particular investment strategy.” While this would seem to fly directly in the face of the categorical investment choice rule that was overturned by the Supreme Court in Hughes, Oshkosh nevertheless appears to have gotten the better of the argument.
The Seventh Circuit’s decision upholding the use of revenue sharing is in direct contrast to the two advisory opinions in the Ninth Circuit in the Salesforce and Trader Joe’s cases. The Ninth Circuit overturned dismissals in both cases that involved revenue sharing to pay plan recordkeeping fees. The Trader Joe’s case, unlike the Oshkosh and Salesforce cases, had direct evidence that revenue sharing was rebated, but the Ninth Circuit treated it as a fact issue that was hypothetical and needed full discovery to evaluate whether the fees were imprudent. By contrast, the Seventh Circuit treated the Oshkosh revenue sharing case in the opposite way, holding that the plaintiff had the burden to prove – upfront – that the revenue sharing was not rebated. The decisions on a similar fact pattern could not be more different. This is yet another example in which plan sponsors have conflicting fiduciary standards for the same exact method of paying plan expenses. In the Ninth Circuit, a challenge to revenue sharing is a fact issue, meaning that any use revenue sharing can be challenged as imprudent and subject plan fiduciaries to substantial liability. But if your company is sued in Chicago, you get the benefit of the Seventh Circuit’s more favorable interpretation of revenue sharing in which the plaintiffs bear the burden to prove that it is somehow imprudent.
We note a key distinction in the Oshkosh case is that Walcheske was arguing for revenue sharing – not against. To advance its novel argument on net plan investment fees, the Court noted that Walcheske was arguing that the Plan should have offered higher-cost share classes of certain mutual funds because the “net expense” of those funds would be lower in light of revenue sharing. This is the “inverse” of what ERISA plaintiffs typically argue – that a plan should have offered cheaper institutional share classes instead of more expensive retail share classes. The fact pattern is confusing: the plaintiff in Oshkosh was arguing that the recordkeeping fees were excessive in a plan that utilized revenue sharing exclusively to pay the recordkeeping fees. So it was essentially arguing that uncapped revenue sharing was improper. But then paragraphs later, the same plaintiff is arguing that the plan should have been using higher-fee retail share classes when they offer higher revenue sharing. We point out this contradiction because it could be used to distinguish or limit the scope of the Oshkosh decision with respect to use of revenue sharing to pay recordkeeping fees.
The final takeaway is that the Oshkosh case for some reason did not involve the common claim that plan fiduciaries acted imprudently because they chose retail share classes instead of lower-fee share classes for the same exact investment product. In other cases with the same QDIA as the Oshkosh Fidelity Freedom K shares with up to 20 bps of revenue sharing, plaintiffs have made this share class argument. But for some reason the retail share class argument was not made here, likely because of Walcheske’s convoluted new investment fee legal theory that advocated for higher fee share classes for certain investments. In footnote 6, the Court made clear that it was not ruling on the retail v. institutional share class issue like the Sixth Circuit did in TriHealth [note that the retail share class issue was also not raised in CommonSpirit, and why the Sixth needed the follow-up decision in TriHealth]. The Oshkosh court stated that “[t]he Sixth Circuit distinguished Hecker and Loomis with respect to a claim Albert does not raise here: that plan fiduciaries should have offered institutional share classes instead of retail share classes of certain investment options.” This is a key issue that was not addressed in the case. The Divane court had observed that “retail expense ratios” often “cover record-keeping costs” in rejecting the retail share class claim with respect to the Northwestern plan. This makes it harder to predict what will happen in the Seventh Circuit ruling in the remanded Hughes v. Northwestern case.
The Euclid Perspective
ERISA was designed to provide a predictable, national standard of fiduciary liability law so that plan sponsors would have certainty of their responsibilities in offering employee benefit plans. With increasing temerity, however, plaintiff law firms have attempted to turn fiduciary law into a liability trap in which plaintiff lawyers can challenge in hindsight pretty much any fiduciary decision. With the Department of Labor standing mostly on the sideline, the only protection for plan sponsors is the federal court system to weed out meritless claims. Plaintiff lawyers have figured out that it is worth filing the same type of lawsuit multiple times against different companies, because federal courts have provided inconsistent rulings on the same allegations. When fiduciary law is being developed on a case-by-case basis, the same claims may not work in every court, but persistent plaintiff firms can cash in if they file enough cases. That is why the appellate courts are so important – to give consistency of legal interpretations so that plan sponsors get reliable rulings. Only then can ERISA be restored to the predictable national standard of fiduciary responsibility law. The August 29 decision by the Seventh Circuit Court of Appeals in Albert v. Oshkosh represents progress in curbing the excessive fee litigation abuse.
We offer one final point. We have long advocated that motions to dismiss should not be filed in every case. We have believed that plan sponsors have more credibility when they refrain from challenging cases that might allege potentially legitimate issues, and instead hold their powder dry for truly egregious cases that are objectively unreasonable. The recent challenges to plan investments in highly rated BlackRock target date funds are the type of fiduciary imprudence cases that should be dismissed at the pleading stage. We were always worried that bad law from high-fee cases would create an unfavorable pleading standard that would prejudice our ability to dismiss objectively unreasonable cases like the BlackRock cases. To this point, much of the current appellate pleading law is from proprietary or university cases that present fact patterns completely different from improper, hindsight investment imprudence challenges that are now being filed. We also believe that the reason the Supreme Court in Hughes could not issue a definitive pleading standard for excessive fee cases is because they were presented a Northwestern plan with problematic facts. It was not the right case for plan sponsors to get the ruling we needed to curb litigation abuse. We will now have to fill in the gaps piecemeal, one circuit court at a time.
After seeing positive decisions in CommonSpirit and Oshkosh, we are realizing that we might be wrong on our motion to dismiss theory. From our perspective, both cases are high fee cases that have potentially problematic fact patterns given the retail share classes and uncapped revenue sharing. Indeed, the CommonSpirit plan had reported all-in plan fees of 55 bps, which is well above the average fee for mega plans over $1b in assets, and the Oshkosh plan had 20 bps of revenue sharing and at least the same above-average fee level of the CommonSpirit plan. To the extent that there is any universal excessive fee theory that meets the plausibility standard, it is a claim of failing to leverage plan size by using retail share classes. Both cases had the potential to allege that claim, but for quirky, inexplicable reasons, the plaintiff law firms failed to make this basic claim in either case. [We note that both cases are from 2020, and plaintiff law firm excessive fee theories have evolved since then, so it is entirely possible that these types of mistakes would no longer be made in the current environment]. We would not have recommended filing motions to dismiss in either case for fear of allowing plaintiffs to amend and strengthen their complaints, as well as the fear of creating bad pleading law. We would have been wrong and missed out on both decisions.
The reason we were wrong is that the judicial landscape is a total crapshoot. There is no coherent logic to the disparate decisions on similar claims. We cannot explain how the Ninth Circuit views revenue sharing differently than the Seventh Circuit; or that the First Circuit views active funds differently than the Sixth and Seventh Circuit. It makes no logical sense. We continue to believe that Congress and/or the Department of Labor has to step in and provide the predictable and reliable standard of fiduciary law that plan sponsors deserve. The DOL is doing that on cryptocurrency, so why not on the more important issues of normal plan investments? But until we get regulatory help, we live in an unpredictable judicial environment in which normal logic does not work. This has caused us to reevaluate when motions to dismiss make sense.
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1Martin v. CareerBuilder, LLC, 2020 WL 3578022, at *3-4 (N.D. Ill. July 1, 2020) [“Plaintiff cannot proceed on its allegations that revenue sharing was too high, only institutional class funds should be on offer, and the Plan should offer . . . index funds.”).
237 F.4th 1160, 1169 (6th Cir. 2022).
3Hughes, 142 S. Ct. at 742 (“The Seventh Circuit erred in relying on the participants’ ultimate choice over their investments to excuse allegedly imprudent decisions by respondents.”
440 F.4th 443, 452 (6th Cir. 2022).
