Donovan v. Bierwirth

754 F.2d 1049, 78 A.L.R. Fed. 91, 6 Employee Benefits Cas. (BNA) 1033, 1985 U.S. App. LEXIS 28995
CourtCourt of Appeals for the Second Circuit
DecidedFebruary 6, 1985
DocketNo. 100, Dockets 84-6130, 84-7290
StatusPublished
Cited by138 cases

This text of 754 F.2d 1049 (Donovan v. Bierwirth) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Donovan v. Bierwirth, 754 F.2d 1049, 78 A.L.R. Fed. 91, 6 Employee Benefits Cas. (BNA) 1033, 1985 U.S. App. LEXIS 28995 (2d Cir. 1985).

Opinion

PIERCE, Circuit Judge:

Before us on these consolidated appeals are: the Secretary of the United States Department of Labor (“Secretary”) and Robert J. Lawrence, plaintiffs-appellants, and John C. Bierwirth, Robert G. Freese, and Carl A. Paladino, defendants-appellees, who are the trustees (“Trustees”) of the Grumman Corporation Pension Plan (“Plan”). The Secretary and Lawrence appeal from judgments entered February 28, 1984, in the United States District Court for the Eastern District of New York, Jacob Mishler, Judge, after a joint trial of both plaintiffs’ actions. The complaints alleged that the defendant Trustees violated their fiduciary responsibilities by improperly buying Grumman securities on behalf of the Plan. The plaintiffs sought, inter alia, recovery of any losses suffered by the Plan as a result of the Trustees’ alleged breach. On February 21, 1984, the district court concluded that no losses were sustained by the Plan. We reverse and remand the question of loss to the district court for findings of fact as to what the Plan would have earned but for the Trustees’ purchase of the Grumman stock.

I. BACKGROUND

This case arises under the Employee Retirement Income Security Act of 1974 (“ERISA” or “Act”), 29 U.S.C. §§ 1001-[1051]*10511381 (1982). The facts are set forth in earlier proceedings in this matter, see Donovan v. Bierwirth, 538 F.Supp. 463 (E.D.N.Y.1981), aff'd as modified, 680 F.2d 263 (2d Cir.), cert. denied, 459 U.S. 1069, 103 S.Ct. 488, 74 L.Ed.2d 631 (1982). A brief recapitulation suffices for our purposes.

On September 24, 1981, the LTV Corporation (“LTV”) made a tender offer for a controlling interest in Grumman Corporation at a price of $45 per share. At that time, the Plan held approximately 525,000 shares of Grumman stock. The Trustees, who were also highranking officials of Grumman,1 determined not to tender any of these shares and on October 12 and 13 used Plan funds to purchase 1,158,000 additional shares of Grumman stock at the prevailing market price in an effort to defeat the tender offer. The day before the tender offer was announced, Grumman stock sold for $26.75 per share. The next day, after announcement of the tender offer, the price rose to $35.88 per share. On October 12 and 13, when the Trustees made the purchases, Grumman stock was selling at $36 to $39.34. On October 14, LTV’s tender offer was preliminarily enjoined by Judge Mishler on antitrust grounds, Grumman Corp. v. LTV Corp., 527 F.Supp. 86 (E.D.N.Y.), aff'd, 665 F.2d 10 (2d Cir.1981). The Secretary brought this action on October 19, 1981, seeking injunctive relief, appointment of a receiver, and recoupment of the Plan’s losses. The tender offer ultimately failed, and the price of Grumman stock dropped in the next month to approximately the pre-tender offer level of $23 per share. On December 3, 1981, the district court concluded that the Secretary had “shown a likelihood of success on his claim that each of the trustees has acted imprudently with respect to their recent investment decisions concerning Grumman stock.” 538 F.Supp. at 476. Subsequently the court entered an order that preliminarily enjoined the Trustees from buying, selling or exercising any rights with respect to Grumman securities except upon further order of the court and directed the appointment of a receiver to serve as an “Investment Manager” for Grumman securities owned by the Plan with “power to tender for sale, or otherwise dispose of all or part of such stock or securities.” 680 F.2d at 265. We modified the order of the district court by striking the appointment of the Investment Manager and, as modified, affirmed. Id. at 277. Approximately seventeen months after the stock was purchased, the Trustees, with the district court’s permission, sold the stock, together with some of the previously-held Grumman shares, for $47.55 per share. Including dividends, the amount earned by the Plan on the shares purchased during the tender offer was, net of commissions, $11.41 per share (selling price of $47.55 per share, plus dividends of $2.20 per share, less average purchase price of $38.34 per share), or $13,212,780 total.

On remand, Judge Mishler stated that he would “try the case in steps,” taking evidence on the issue of loss to the Plan before taking additional evidence on the question of breach of duty, as to which we had affirmed the preliminary injunction. Joint Appendix at 147-48. A bench trial on loss was held on December 19 and 20,1983. The district court found, based in part upon expert testimony, that the market price of Grumman stock on October 12 and 13,1981 was distorted by the pending tender offer and that the fair market value of the stock at that time was only $23 per share. Donovan v. Bierwirth, No. CV 81-3408, slip op. at 4 (E.D.N.Y. Feb. 21, 1984).

On February 21,1984, Judge Mishler dismissed the complaint because he found no likelihood of breaches of fiduciary duty in the future, and that the Plan had not suffered a “loss” within the meaning of ERI-SA section 409(a), 29 U.S.C. § 1109(a) (1982).2 Thus, an injunction was held to be [1052]*1052unnecessary and the Trustees were held to have incurred no personal liability under section 409(a).

The chief issue presented for our review concerns the applicable measure of damages. Specifically, if securities are purchased in breach of trust but are later sold at a price exceeding the purchase price, is there a “loss” within the meaning of ERISA section 409?

II. Discussion

In resolving the question whether the Plan sustained a “loss,” we bear in mind that the Trustees, if ultimately found to have breached their fiduciary duties, will be liable personally for any such “loss” pursuant to section 409.3 ERISA does not define “loss” as that term is used in section 409. The Act’s legislative history, however, indicates that Congress’ intent was “to provide the full range of legal and equitable remedies available in both state and federal courts.” H.Rep. No. 533, 93d Cong., 2d Sess., reprinted in 1974-3 U.S. Code Cong. & Ad.News 4639, 4655. Measuring damages involves the application of law to fact; the proper formula for calculating damages is essentially a question of law. Clark v. John Lamula Investors, Inc., 583 F.2d 594, 603 (2d Cir.1978); see C. McCormick, Handbook on the Law of Damages ch. 2 (1935). Consequently the “clearly erroneous” standard does not apply; rather, “it is enough that the appellate court should be convinced ... that the result [does or] does not jibe with the applicable rule of law.” In re Joseph Kanner Hat Co., Inc., 482 F.2d 937, 939 (2d Cir.1973) (quoting In re Hygrade Envelope Corp., 366 F.2d 584, 588 (2d Cir.1966));

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754 F.2d 1049, 78 A.L.R. Fed. 91, 6 Employee Benefits Cas. (BNA) 1033, 1985 U.S. App. LEXIS 28995, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donovan-v-bierwirth-ca2-1985.