Wangberger v. Janus Capital Group, Inc.

529 F.3d 207, 43 Employee Benefits Cas. (BNA) 2945, 2008 U.S. App. LEXIS 12690, 2008 WL 2406211
CourtCourt of Appeals for the Fourth Circuit
DecidedJune 16, 2008
DocketNos. 06-2003, 06-2176, 06-2177
StatusPublished
Cited by2 cases

This text of 529 F.3d 207 (Wangberger v. Janus Capital Group, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wangberger v. Janus Capital Group, Inc., 529 F.3d 207, 43 Employee Benefits Cas. (BNA) 2945, 2008 U.S. App. LEXIS 12690, 2008 WL 2406211 (4th Cir. 2008).

Opinion

[210]*210Reversed and remanded by published opinion. Judge NIEMEYER wrote the opinion, in which Judge SHEDD and Judge BRINKEMA joined.

OPINION

NIEMEYER, Circuit Judge:

The plaintiffs, each of whom purports to represent a class of others similarly situated, are former employees who maintained accounts in § 401(k) defined contribution retirement plans sponsored by their employers and who, upon leaving employment, voluntarily sought and obtained full distribution of the vested benefits in then-respective accounts. They commenced these actions under the Employee Retirement Income Security Act of 1974 (“ERISA”) against the fiduciaries of then-respective retirement plans, for breach of their fiduciary duties to the plans based on the fiduciaries’ knowing investment in mutual funds that allowed investors to practice market timing, an abusive form of arbitrage activity that favored the market timers and harmed long-term investors in the funds, such as the plaintiffs. The plaintiffs sued the fiduciaries under §§ 502(a)(2) and 409(a) of ERISA, which allow for a derivative action to be brought by a retirement plan “participant” on behalf of the plan to obtain recovery for losses sustained by the plan because of breaches of fiduciary duties.

The defendants filed motions to dismiss the plaintiffs’ claims, challenging then-standing to assert the claims under both ERISA and Article III of the Constitution. The district court granted their motions, finding that the plaintiffs did not fall within the class of individuals authorized to sue under ERISA § 502(a)(2) because, having cashed-out of the plans, they were no longer seeking “benefits,” as required to have statutory authority to sue, but rather money damages.

Because we conclude that cashed-out former employees remain “participants” in defined contribution retirement plans for purposes of § 502(a)(2) of ERISA when they seek to recover amounts that they claim should have been in their accounts had it not been for alleged fiduciary impropriety, we find that they have “statutory standing.” And because the plans at issue are defined contribution plans, rather than defined benefit plans, we reject the defendants’ argument that the plaintiffs’ injuries are not redressable and therefore that they lack Article III standing. Accordingly, we reverse the judgments of the district court and remand these cases for further proceedings.

I

When Craig Wangberg,1 Miriam Calderon, Jessica Corbett, and Anita Walker retired from their respective employments, they voluntarily “cashed out” their vested interests in defined contribution retirement plans that their employers had sponsored. “Defined contribution” plans are plans that provide for individual accounts and that define the participants’ benefits as the contents of their accounts, including contributions (from both participants and employers), as well as the investment gains minus investment losses and any al-locable plan expenses. See 29 U.S.C. § 1002(34). Before these employees had been paid the value of their accounts in the defined contribution plans, the plans had invested in various mutual funds that allowed investors to practice a form of arbitrage known as market timing, in which [211]*211investors move in and out of the funds to take advantage of the temporary differentials between the mutual funds’ daily-calculated “net asset value” (“NAV”) and the market price of the component stocks during the course of a day. Not only does market timing favor the market timers at the expense of long-term investors in mutual funds, it also increases the funds’ costs and impairs investment performance. See generally SEC v. Pimco Advisors Fund Mgmt. LLC, 341 F.Supp.2d 454, 458 (S.D.N.Y.2004); Prusky v. Reliastar Life Ins. Co., 445 F.3d 695, 697-98 & n. 4 (3d Cir.2006); see also Disclosure Regarding Market Timing and Selective Disclosure of Portfolio Holdings, 68 Fed.Reg. 70,402, 70,402-04 (proposed Dec. 17, 2003) (describing mutual fund market timing in detail).

Market timing can harm mutual fund investors by causing mutual funds to manage their portfolios in a manner that is disadvantageous to long-term shareholders. Disclosure Regarding Market Timing, 68 Fed.Reg. at 70,404. For example, investment advisors might maintain a larger percentage of fund assets in cash or liquidate certain portfolio securities prematurely to meet higher levels of redemp-tions due to market timing activity occurring within the fund. Id. “It would make little sense for a fund manager to invest in assets with significant long-term potential but high short-term volatility if a market timer’s redemptions could force the quick sale of fund assets.” Pimco, 341 F.Supp.2d at 458. Moreover, market timing can “increas[e] trading and brokerage costs, as well as tax liabilities, incurred by a fund and spread across all fund investors.” Id.

Market timing can be especially problematic when it occurs in mutual funds that invest in overseas securities because the time zone differences allow market timers to purchase shares of such funds “based on events occurring after foreign market closing prices are established, but before the fund’s NAV calculation.” Disclosure Regarding Market Timing, 68 Fed.Reg. at 70,403. Prior to the daily NAV calculation, which in the United States generally occurs at or near the closing time of the major U.S. securities markets, the fund price would not take into account any changes that have affected the value of the foreign security. Therefore, if the foreign security had increased in value, the NAV for the mutual fund would be artificially low. Id. After purchasing the shares at the low price, “the market timer would redeem the fund’s shares the next day when the fund’s share price would reflect the increased prices in foreign markets, for a quick profit at the expense of long-term fund shareholders.” Id. Market timing opportunities also exist in mutual funds that do not invest in foreign markets, such as small-cap stocks and high-yield bonds, which are relatively illiquid assets and are not frequently traded. Id.; see also Richard L. Levine, Yvonne Cristovici & Richard A. Jacobsen, Mutual Fund Market Timing, Fed. Lawyer, Jan. 2005, at 28, 30.

The harm that market timing can cause to the interests of investors, especially long-term investors, has led many mutual funds to adopt policies and to impose fees intended to limit market timing within their funds. It has also led to increased regulatory action by the Securities and Exchange Commission. See, e.g., Disclosure Regarding Market Timing, 68 Fed. Reg. at 70,402. In addition, in 2003, both state and federal regulators began investigating mutual funds that allowed the practice. These investigations led to SEC-sponsored settlements totaling more than $3.5 billion paid by investment advisors to mutual funds in approximately 20 mutual fund complexes. In the wake of this regulatory activity, hundreds of civil actions [212]*212alleging abusive mutual fund market timing were filed by mutual fund investors and participants in employee retirement plans.

The civil actions concerning mutual fund market timing, including the four cases appealed to us, were transferred by the Judicial Panel on Multidistrict Litigation to three judges in the District of Maryland for coordinated pretrial proceedings. See In re Janus Mut. Funds Inv.

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Related

Marini v. Janus Investment Fund
590 F. Supp. 2d 741 (D. Maryland, 2008)
In Re Mutual Funds Investment Litigation
529 F.3d 207 (Fourth Circuit, 2008)

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Bluebook (online)
529 F.3d 207, 43 Employee Benefits Cas. (BNA) 2945, 2008 U.S. App. LEXIS 12690, 2008 WL 2406211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wangberger-v-janus-capital-group-inc-ca4-2008.