Gum v. Glaxosmithkline Retirement Savings Plan Committee

494 F. App'x 172
CourtCourt of Appeals for the Second Circuit
DecidedSeptember 4, 2012
DocketNo. 11-2289-cv
StatusPublished
Cited by1 cases

This text of 494 F. App'x 172 (Gum v. Glaxosmithkline Retirement Savings Plan Committee) 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
Gum v. Glaxosmithkline Retirement Savings Plan Committee, 494 F. App'x 172 (2d Cir. 2012).

Opinion

SUMMARY ORDER

Plaintiffs, suing on behalf of a putative class of GlaxoSmithKline (“GSK”) employees who invested in two company retirement savings plans (“Plans”),1 appeal from [174]*174the dismissal of their claims under § 502(a)(2) of the Employee Retirement Income Security Act of 1974 (“ERISA”), see 29 U.S.C. § 1132(a)(2). Plaintiffs charge defendants with breaching fiduciary duties of prudence and loyalty with respect to the Plans’ offering of an investment option in GSK common stock (“GSK Stock Fund” or “Fund”) during the period May 8, 2007, through November 9, 2010.

We review the challenged dismissal de novo, construing the complaint’s allegations and drawing all reasonable inferences therefrom in plaintiffs’ favor. See Fait v. Regions Fin. Corp., 655 F.3d 105, 109 (2d Cir.2011). We also review de novo the district court’s conclusions of law regarding duties owed by defendants to plaintiffs under ERISA and the terms of the Plans. See LoPresti v. Terwilliger, 126 F.3d 34, 39 (2d Cir.1997). We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm.

1. Breach of Duty of Prudence

In dismissing plaintiffs’ prudence claim, see 29 U.S.C. § 1104(a)(1)(B), the district court concluded that the Plans afforded defendants “no fiduciary discretion with regard to” offering the GSK Stock Fund, Hr’g Tr. 28, J.A. 499. As a consequence, it ruled that “there is no ability to charge a breach of fiduciary obligation, and we never get into the issues of prudence and imprudence.” Id. Our recent decision in In re Citigroup ERISA Litigation, 662 F.3d 128 (2d Cir.2011), decided after the district court entered the challenged judgment, indicates that the law is not quite that absolute. There, we rejected the argument that the conduct of ERISA fiduciaries in continuing to offer or in failing to divest employer stock is “beyond our power to review.” Id. at 139. We explained that ERISA fiduciaries who offer employer stock as an investment should be afforded a presumption of prudence, under which courts review such conduct for “abuse of discretion.” Id. at 138. Mindful that a plan fiduciary is to discharge his duties “in accordance with the documents and instruments governing the plan insofar as” ERISA requires, 29 U.S.C. § 1104(a)(1)(D), we observed that “a fiduciary’s failure to divest from company stock is less likely to constitute an abuse of discretion if the plan’s terms require— rather than merely permit — investment in company stock,” In re Citigroup ERISA Litig., 662 F.3d at 138 (noting that judicial scrutiny correlates inversely with “degree of discretion a plan gives its fiduciaries”).

Two principles emerge from our holding in In re Citigroup: (1) a court must look to “the very terms of the plan itself’ to assess whether those “terms requir[e] or strongly favor[] investment in employer stock,” id. at 139-40; and (2) if the plan is properly so construed, “only circumstances placing the employer in a ‘dire situation’ that was objectively unforeseeable by the settlor could require fiduciaries to override plan terms,” id. at 140 (quoting Edgar v. Avaya, Inc., 503 F.3d 340, 348 (3d Cir.2007)); accord Gearren v. McGraw-Hill Cos., 660 F.3d 605, 610 (2d Cir.2011) (per curiam).

Plaintiffs urge us to vacate the dismissal of their complaint and remand the case so that the district court may analyze these questions. We decline this invitation. Determining whether a complaint states a claim “is a task well within an appellate court’s core competency.” Ashcroft v. Iqbal, 556 U.S. 662, 674, 129 S.Ct. 1937, 173 [175]*175L.Ed.2d 868 (2009); see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Further, we may “affirm on any basis for which there is a record sufficient to permit conclusions of law, including grounds upon which the district court did not rely.” Berlin v. United States, 478 F.3d 489, 491 (2d Cir.2007) (internal quotation marks omitted). Finally, “[w]here plaintiffs do not allege facts sufficient to establish that a plan fiduciary has abused his discretion, there is no reason not to grant a motion to dismiss.” In re Citigroup ERISA Litig., 662 F.3d at 139-40 (calling presumption of prudence a “substantial shield” against liability (internal quotation marks omitted)). Under the circumstances of this case, in which we can readily discern that the complaint must be dismissed, it would be highly inefficient to remand the case to the district court, after which its predictable decision to dismiss would occasion a further appeal to this court.

Although plaintiffs assert that the Plans afford fiduciaries unfettered discretion regarding whether to offer the GSK Stock Fund as an investment option for voluntary employee contributions, the terms of the Plans, at a minimum, strongly favor that the Fund be offered to employees. Notably, the Plans denominate the Fund as the default investment where employees fail to select another investment option for certain employer-funded contributions. See 2007 Summary Plan Description at 6, J.A. 304 (stating that contributions equaling 2% of employee’s eligible pay will “automatically be invested in the GSK Stock Fund” absent contrary direction by employee); 2009 GSK Retirement Savings Plan § 3.5, J.A. 178. Thus, we cannot say that the plans at issue in this case, which mandate investment of some portion of the company’s contribution to employee retirement accounts in GSK stock as a default option, less “strongly favor[ ]” investment in company stock than did the Citigroup plans. See In re Citigroup ERISA Litig., 662 F.3d at 133-34. Further, the Plans here presuppose a GSK Stock Fund option in sections governing withdrawals, exchange offers, and reinvestment of dividends. Were fiduciaries permitted to withdraw the GSK Stock Fund without restriction, as plaintiffs urge, these references to the Fund in the Plans would render the relevant provisions confusing if not incoherent.

Because the Plans’ terms strongly favor an investment option in employer stock, plaintiffs must plausibly plead that GSK faced a “dire situation” to state a claim that Plan fiduciaries abused their discretion in continuing to offer the GSK Stock Fund as an investment and in failing to liquidate GSK stock already held. See id. at 140.

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Bluebook (online)
494 F. App'x 172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gum-v-glaxosmithkline-retirement-savings-plan-committee-ca2-2012.