Filed November 2, 2016
Nor do Plaintiffs allege anything improper about using float interest to defray bank fees, as ERISA expressly authorizes. 29 U.S.C. § 1104(a)(1)(A) (fiduciary may “defray[] reasonable expenses” of plan administration). Plaintiffs do not, for example, provide any reason to believe that— contrary to what Plaintiffs’ counsel has been told repeatedly—Fidelity kept as compensation net float interest after defraying reasonable bank fees under its practices before late 2011.
Filed December 20, 2010
...........................................................................................28 29 U.S.C. § 1001(b) .......................................................................................................................35 Case 2:09-cv-04974-CMR Document 57 Filed 12/20/10 Page 10 of 70 x 29 U.S.C. § 1104(a)(1)(B) .............................................................................................................28 29 U.S.C. § 1104(a)(1)(D) .......................................................................................................20, 30 29 U.S.C. § 1104(a) .......................................................................................................................24 29 U.S.C. § 1104(b)(1)(B) .............................................................................................................35 29 U.S.C. § 1104(c)(1).............................................................................................................37, 39 29 U.S.C. § 1104(c)(1)(B) .............................................................................................................36 29 U.S.C. § 1109(a) .......................................................................................................................11 29 U.S.C. § 1132(a)(2).............................................................................................................11, 29 Case 2:09-cv-04974-CMR Document 57 Filed 12/20/10 Page 11 of 70 1 I.
Filed December 21, 2009
As noted above, ERISA fiduciaries are required to comply with the governing plan documents so long as those documents do not conflict with ERISA. ERISA § 404(a) (1)(D); 29 U.S.C. § 1104(a)(1)(D); Kennedy, 129 S.Ct. at 868; Bennett, 168 F.3d at 679. Thus, unless the investment policy statement (“IPS”) violated ERISA, the fiduciaries were required to follow it.
Filed April 10, 2009
Specifically, ERISA § 404(c) provides that, where a plan “provides for individual accounts and permits a participant to exercise control over the assets in his account,” no fiduciary “shall be liable . . . for any loss, or by reason of any breach, which results from such participant’s or beneficiary’s exercise of control.” 29 U.S.C. § 1104(c). In other words, where a participant chooses his own investments within a plan, a plan sponsor or fiduciary “cannot be a guarantor of outcomes for participants.”
Filed March 5, 2009
It is not the execution of the contract that is the breach, it is the paying of the excessive fees that is the breach. 29 U.S.C. §1104(a)(1)(A) (plan assets may be Case 3:06-cv-00703-DRH-CJP Document 276 Filed 03/05/2009 Page 36 of 41 37 used to defray only reasonable expenses of administration). Defendants do not dispute they paid Towers Perrin excessive fees after September 2000.
Filed January 12, 2017
There is no evidence whatsoever that CENTRA, or Carewise as its successor, was ever instructed to do otherwise until Ruth James' cryptic email of January 14, 2010. The fact that CG approved each and every discount negotiated by Carewise — and was indisputably aware of the "auto-discount" agreements — further belies any finding of bad faith for purposes of 29 U.S.C. § 1104(a)(1)(D). See Burke, 775 F.2d at 91 (if fiduciary's "action is undertaken pursuant to a good faith, albeit erroneous, interpretation, ERISA's fiduciary provisions are not violated"); McDaniel, 817 F.2d at 1373 ("[T]he direct question we face is not whether we believe section 2.10 applies in these circumstances, but instead whether the trustees have adopted a reasonable interpretation of that 15
Filed July 25, 2016
6 connection with their performance of services for the Plan or Trust,” and determining whether the expenses and fees are reasonable. AC ¶77; Doc. 43-4 at 9 (§3.4); 29 U.S.C. §1104(a)(1)(A), §1103(c)(1). Reliance was therefore responsible for monitoring the amount of compensation that the Plan’s recordkeeper, Insperity Retirement Services, received from the Plan.
Filed December 19, 2014
(2) Duty of Care ERISA’s fiduciary duty of care requires a fiduciary to act with “the care, skill, prudence, and diligence…that a prudent man acting in a like capacity and familiar with such matters would use.” 29 U.S.C. § 1104(a)(1)(B). The Amended Complaint does not adequately allege a violation of ERISA’s duty of care with respect to the purportedly inaccurate pension estimate.
Filed July 21, 2008
In re Tyco Int’l, Ltd. MDL, No. 02 MD 1357, 2004 U.S. Dist. LEXIS 24272, at *27 (D.N.H. Dec. 2, 2004); see also 29 U.S.C. § 1104(c). Plaintiffs’ own allegations and the Plans themselves conclusively establish these elements.
Filed May 15, 2012
Ameriprise and the CBC knew these payments were improper because they had steered Plan fiduciaries to select ATC as recordkeeper, to continue to use Wachovia during the 18-month earn-out period and to select RiverSource and Ameriprise funds that paid fees, revenue sharing and other kickbacks to Ameriprise. See 29 U.S.C. §1104(a) (the duty of loyalty requires a fiduciary to act “for the exclusive purpose of providing benefits to participants and their beneficiaries…”). Because Ameriprise knew that Plan fiduciaries committed prohibited transactions and breaches of the duties of prudence and loyalty by having the Plan recordkept by ATC and Wachovia, Ameriprise must disgorge their profits from the Plan’s role in that sale back to the Plan under both 29 U.S.C. §1109 and federal common law. Where “no cause of action [is] stated under an ERISA provision, and the