Wilcox v. Georgetown University ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
DARRELL WILCOX and MICHAEL )
MCGUIRE, individually and as )
representatives of a class of participants )
and beneficiaries in and on behalf of )
the GEORGETOWN UNIVERSITY )
DEFINED CONTRIBUTION )
RETIREMENT PLAN and the )
GEORGETOWN UNIVERSITY )
VOLUNTARY CONTRIBUTION )
RETIREMENT PLAN, )
)
Plaintiffs, )
)
v. ) Civil Action No. 18-422 (RMC)
)
GEORGETOWN UNIVERSITY, et al., )
)
Defendants. )
_________________________________ )
MEMORANDUM OPINION
If a cat were a dog, it could bark. If a retirement plan were not based on long-
term investments in annuities, its assets would be more immediately accessed by plan
participants. These two truisms can be summarized: cats don’t bark and annuities don’t pay out
immediately.
Darrell Wilcox and Michael McGuire work for Georgetown University. Each
man has an individual investment account in each of the two retirement plans offered by the
University. They allege that Georgetown imprudently selected and retained certain investment
options that caused excessively high administrative fees and that it failed to manage the plans’
investments prudently, in violation of the University’s fiduciary duties to the plans’ participants.
This type of lawsuit seems to have taken higher education by storm, with suits brought all over
the country. Georgetown moves to dismiss, arguing that Plaintiffs have no standing to make
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some of their claims and that others fail to state a claim on which relief can be granted. The
motion to dismiss will be granted as to all claims.
I. FACTS
Georgetown University in Washington, D.C. provides two retirement plans for its
faculty and staff members: the Georgetown University Defined Contribution Retirement Plan
(Defined Contribution Plan) and the Georgetown University Voluntary Contribution Retirement
Plan (Voluntary Plan) (collectively “the Plans”). The Plans are defined contribution, individual
account employee pension plans governed by the Employee Retirement Income Security Act
(ERISA) 29 U.S.C. § 1001 et seq. “[A] ‘defined contribution plan’ or ‘individual account plan’
promises the participant the value of an individual account at retirement, which is largely a
function of the amounts contributed to that account and the investment performance of those
contributions.” LaRue v. DeWolff, Boberg & Assoc., Inc., 552 U.S. 248, 250 n.1 (2008) (citation
omitted). By contrast, “a ‘defined benefit plan,’ generally promises the participant a fixed level
of retirement income, which is typically based on the employee’s years of service and
compensation.” Id. (citation omitted).
Georgetown contributes an amount up to ten percent (10%) of an employee’s
annual salary into the Defined Contribution Plan and employees can contribute, as they choose,
up to three percent (3%) more to the Voluntary Plan. Each participant has his own account in
each Plan and decides personally how to invest its funds across a wide array of investment
options, according to individual choice. Georgetown is the designated Plan Administrator for
both Plans. See 29 U.S.C. §§ 1002(2)(A), 1002(34). It manages the Plans and their assets,
including selecting, monitoring, and removing investment options.
The Plans are organized under Section 403(b) of the Internal Revenue Code, 26
U.S.C. § 1 et seq. Titled “Taxation of employee annuities,” § 403 provides a set of rules for
2
certain plans sponsored by non-profit employers; it allows employer contributions and part of an
employee’s salary to be set aside in an individual account and then to increase in value (one
hopes) without immediate taxation to the employee. Id. § 403. This provision predates ERISA
and speaks directly to the heritage of the collegiate retirement system.
In 1905, Andrew Carnegie endowed a $10 million gift to fund pensions at thirty
universities. 1 In 1906, Congress chartered the Carnegie Foundation for the Advancement of
Teaching to provide a system of retirement pensions for university professors. Act to
Incorporate the Carnegie Foundation for the Advancement of Teaching, ch. 636, 34 Stat. 59(Mar. 10, 1906). When, by 1918, it became clear that Mr. Carnegie’s gift would be insufficient
to meet the need, the Carnegie Foundation founded the Teachers Insurance and Annuity
Association, now known as TIAA. TIAA developed annuity contracts with “fundamental
provisions specially designed for college retirement plans.” Greenough at 14, 17. An annuity is
essentially a long-term insurance contract that guarantees regular payments at retirement and for
the life of the holder. 2 This collegiate retirement system of annuities predated the enactment of
Internal Revenue Code § 403(b), which was adopted in 1958 to provide favorable tax treatment
for “tax-sheltered annuities,” such as those offered by the Plans. Technical Amendments Act of
1958, Pub. L. No. 85-866, § 1022(e), 88 Stat. 829, 1972 (1974) (codified as amended at 26
U.S.C. § 403(b)).
1
Defs.’ Mem. at 3 (citing William C. Greenough, College Retirement and Insurance Plans 9
(1948)).
2
Black’s Law Dictionary defines “annuity” in relevant part as “an obligation to pay a stated sum,
usu. monthly or annually, to a stated recipient,” and “retirement annuity” as “an annuity that
begins making payments only after the annuitant’s retirement.” See Black’s Law Dictionary
(10th ed. 2014).
3
When adopting ERISA in 1974, Congress amended the Code so that § 403 plans
could offer mutual funds in addition to annuities. See ERISA, Pub. L. No. 93-406, § 1022(e), 88
Stat. 829, 1072 (1974) (codified as amended at 26 U.S.C. § 403(b)(7)). At that time, “the
defined benefit plan was the norm of American pension practice.” LaRue, 552 U.S. at 255(alteration and internal quotation marks omitted). Under a defined benefit plan, an eligible
employee who has worked sufficient years receives a promised monthly pension benefit for life.
Because of the huge legacy costs of funding such plans for growing numbers of retirees, many
employers have changed to “defined contribution” plans through which an employer’s
contribution is specified and capped, no matter how long a retired employee might live. 3 In
response to this change, Congress adopted legislation by which employees can invest in various
other tax-deferred plans, such as individual § 401(k) plans. Revenue Act of 1978, Pub. L. No.
95-600, § 135(a), 92 Stat. 2763, 2785 (codified as amended at I.R.C. § 401(k) (2006)).
“[D]efined benefit plans are now largely limited to the public sector, very large employers, and
multi-employer plans of large national unions such as the Teamsters.” David Pratt, To (b) or Not
to (b): Is That the Question? Twenty-first Century Schizoid Plans Under Section 403(b) of the
Internal Revenue Code, 73 Alb. L. Rev. 139, 144 (2009).
3
See Janice Kay McClendon, The Death Knell of Traditional Defined Benefit Plans: Avoiding a
Race to the 401(K) Bottom, 80 Temple L. Rev. 809, 813-19 (2007) (“Beginning in the early
1980s, a fundamental shift occurred in this scheme of traditional retirement plan sponsorship.
The 1980s and 1990s evidence a mass exodus from defined benefit plan sponsorship. While
there were once approximately 112,000 private employer-sponsored defined benefit plans, at the
end of 2005, there were only about 30,000.”) (citations omitted); see also Samuel Estreicher &
Laurence Gold, The Shift from Defined Benefit Plans to Defined Contribution Plans, 11 Lewis &
Clark L. Rev. 331 (2007); Alicia H. Munnell & Pamela Perun, An Update on Private Pensions,
An Issue in Brief 1, 4 (Ctr. for Ret. Research at Boston C., Aug. 2006),
http://crr.bc.edu/images/stories/Briefs/ib_ 50.pdf (noting dramatic rise in popularity of 401(k)
plans within world of defined contributions).
4
Defendants Christopher Augustini and Geoff Chatas have served as Georgetown’s
Senior Vice President and Chief Administrative Officer, and as fiduciaries to the Plans, until
May 2017 and from February 30, 2018 through to the present, respectively. They, and
Georgetown, are sued for alleged breaches of their fiduciary duties to the Plans’ participants.
Plaintiffs Darrell Wilcox and Michael McGuire are participants in both Plans.
They filed this lawsuit on February 23, 2018 and challenge the expenses of the Plans, which they
say are detrimental to the interests of the Participants, wasteful, and breach the fiduciary duties
of the Plans’ fiduciaries. See Compl. [Dkt. 1]. Specifically, Plaintiffs attack the expense of
separate recordkeeping services that maintain the Plans; the expense of some of the investment
options that are available; the number of investment options that are offered; and the inclusion in
the Plans of certain investment options.
The University and Messrs. Augustini and Chatas (collectively, Georgetown)
deny that they violated any duty to the Plans’ Participants and move to dismiss the Complaint.
Description of the Plans
Each of the Georgetown Plans provides individual accounts for all Participants.
Georgetown contributes an amount equal to 5% of each Participant’s salary into his account in
the Defined Contribution Plan. Participants may, but are not required to, voluntarily contribute
an additional three percent (3%) of their salaries to the Defined Contribution Plan; if a
Participant does so, Georgetown matches these contributions at a little more than one-and-one-
half for each dollar contributed, i.e., 1.67-to-1. As a result, a Participant who voluntarily
contributes the entire allowed-amount of 3% of his salary into the Defined Contribution Plan
receives a 5% match of funds from the University.
In each Plan, the Participant directs how his funds are invested from a broad set of
choices that includes fixed and variable annuities offered by TIAA and mutual funds offered by
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TIAA, Vanguard, and Fidelity. 4 The three investment platforms charge certain fees to Plan
Participants, which are fully disclosed but which Plaintiffs assert are more expensive than need
be.
1. Fidelity Investment Options
Plaintiffs do not complain about investment options offered by Fidelity and they
will not be further discussed.
2. Vanguard Investment Options
Plaintiffs complain that Georgetown “used more expensive funds . . . than
investments that were available to the Plans.” Compl. ¶ 131. Specifically, they challenge the
particular share classes of Vanguard funds that were available to Participants. Neither Plaintiff,
however, invested in the Vanguard funds or alleges that he intended or intends to do so.
3. TIAA Investment Options
TIAA offers a variety of investment options. The Court describes only those
options that are challenged by Plaintiffs.
a. TIAA Traditional Annuity
The TIAA Traditional Annuity is a fixed annuity. “Under a classic fixed annuity,
the purchaser pays a sum certain and, in exchange, the issuer makes periodic payments
throughout, but not beyond, the life of the purchaser.” NationsBank of N.C., N.A. v. Variable
Annuity Life Ins. Co., 513 U.S. 251, 262 (1995). When a Georgetown Plan Participant elects to
invest in the TIAA Traditional Annuity, he enters into a direct contractual relationship with
4
In the past, Participants could also invest in funds provided by AXA, but those funds have
stopped accepting additional contributions. Compl. ¶ 29.
6
TIAA concerning its terms. Mem. of Law in Supp. of Defs.’ Mot. to Dismiss (Defs.’ Mem.)
[Dkt. 18-1] at 6. The University is not a party to that contract.
The TIAA Traditional Annuity is available to Participants through either the
Defined Contribution Plan or the Voluntary Plan but with important differences. A Participant
who invests his money from the Defined Contribution Plan into the TIAA Traditional Annuity
will earn greater interest (typically, an additional 0.75% a year) than the same investment from
the Voluntary Plan. The difference in earning power is inversely reflected in the difference in
the accessibility of the invested monies: a Participant who elects the TIAA Traditional Annuity
through the Voluntary Plan may withdraw his funds at any time without penalty but a Participant
who elects the TIAA Traditional Annuity through the Defined Contribution Plan may not
withdraw his funds until he leaves his employment with Georgetown or, if he wishes to re-direct
his investments, in ten annual installments. Upon his departure from employment, such a
Participant can leave his funds invested in the TIAA Traditional Annuity for the long term and
receive a monthly pension payment whenever he qualifies, or withdraw his funds immediately.
If he elects to withdraw his funds immediately from the Defined Contribution plan, he will
receive a lump-sum payout but must pay a 2.5% surrender charge.
Plaintiffs complain about both limiting features of the TIAA Traditional Annuity:
first, that it “prohibits participants from re-directing their investment into other investment
options during their employment except in ten annual installments,” and second, that it “prohibits
participants from receiving a lump sum distribution after termination of employment unless the
participant pays a 2.5% surrender charge,” both of which “violate ERISA’s prohibition on the
imposition of a penalty for early termination of a contract.” Pls.’ Mem. of Law in Opp’n to
Defs.’s Mot. to Dismiss Pls.’s Compl. (Opp’n) [Dkt. 24] at 10 (citing Compl. ¶¶ 99, 103, 108).
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Georgetown contends that Plaintiffs have shown no injury-in-fact related to the
TIAA Traditional Annuity because any claim they may present is not ripe. Neither alleges that
he has left or plans to leave Georgetown or that he wishes to re-direct his investments.
b. CREF Stock Account
The CREF Stock Account is a variable-annuity investment fund. CREF stands
for College Retirement Equities Fund, which TIAA established in 1952. Defs.’ Mem. at 7 n.13.
As it advises investors through its prospectus, the CREF Stock Account seeks to achieve “[a]
favorable long-term rate of return through capital appreciation and investment income by
investing primarily in a broadly diversified portfolio of common stocks.” 5 The Stock Account is
globally diversified and “seeks to maintain the weightings of its holdings as approximately 65-
75% domestic equities and 25-35% foreign equities.” Id. at 27 (citing 2017 CREF Prospectus).
As a result, the Stock Account advises investors:
The benchmark for the Stock Account is a composite index
composed of two unmanaged indices: the Russell 3000® Index and
the MSCI All Country World ex USA Investable Market Index
(“MSCI ACWI ex USA IMI”). The weights in the composite index
change to reflect the relative sizes of the domestic and foreign
segments of the Account and to maintain its consistency with the
Account’s investment strategies.
Id. at 7 (citing 2017 CREF Prospectus).
5
College Retirement Equities Fund Prospectus 27 (May 1, 2017) (2017 CREF Prospectus),
https://www.tiaa.org/public/pdf/cref_prospectus.pdf (last visited Dec. 11, 2018). As referenced
above, the Court takes judicial notice of various Plan documents in this Memorandum Opinion.
See Abraha v. Colonial Parking, Inc., 243 F. Supp. 3d 179, 192 (D.D.C. 2017). The Court also
takes judicial notice of publicly available definitions and information on the various funds
available through Morningstar, a well-respected investment research firm. See Fed. R. Evid.
201(c); see also Washington Post v. Robinson, 935 F.2d 282 (D.C. Cir. 1991) (taking judicial
notice of newspaper articles in the Washington, D.C. area); Agee v. Muskie, 629 F.2d 80, 81 n.1,
90 (D.C. Cir. 1980) (taking judicial notice of facts generally known because of newspaper
articles).
8
The Georgetown Plans assert that the global investments undertaken by the CREF
Stock Account are not fully accounted for by federal regulations that control Fiduciary
Requirements for Disclosure in Participant-Directed Individual Account Plans. 29 C.F.R. §
2230-404a-5(d)(1)(iii); see also 75 Fed. Reg. 64,910, 64,916 (Oct. 20, 2010) (disallowing the use
of composite benchmarks). Because it is a composite fund but cannot use composite
benchmarks in certain disclosures, the CREF Stock Account references only the domestic
Russell 3000 benchmark in some materials although its prospectus advises that the influence of
foreign investments is reported only by the MSCI All Country World ex USA Investable Market
Index and that a true benchmark for the Stock Account is both the Russell 3000 and the MSCI
All Country World ex USA Investable Market indices. 2017 CREF Prospectus at 27 n.3. The
Plans have advised investors that an independent analyst, Morningstar, “rate[d] the CREF Stock
as a 5-star investment option” at year-end 2017. 6
Plaintiffs confusingly describe the CREF Stock Account as “a domestic equity
investment in the large cap blend Morningstar category.” Opp’n. at 9; Compl. ¶ 72 (emphasis
added). They assert that the CREF Stock Account represents approximately 16% of the Plans’
assets but has “perennially underperformed its stated benchmark” (Russell 3000, a domestic
index) in the last one-, five- and ten-year periods ending December 31, 2016. Opp’n at 9. “The
Complaint alleges similar dismal results for the same performance periods ending Dec. 31, 2014,
¶ 79, and Dec. 31, 2009. ¶80 [sic].” Id.6
See CREF Stock Account, Class R3 (Dec. 31, 2017),
https://www.tiaa.org/public/pdf/realestate_prosp.pdf (last visited Dec. 11, 2018).
9
c. TIAA Real Estate Account
The TIAA Real Estate Account is a variable annuity account that “seeks favorable
long-term returns primarily through rental income and appreciation of real estate and real estate-
related investments.” 7 The TIAA Real Estate Account invests primarily in commercial real
estate, which it advises Participants is an asset class not widely available to retail investors in a
variable annuity or mutual fund. TIAA Real Estate Account Prospectus at 37. Its prospectus
distinguishes the TIAA Real Estate Account from Real Estate Investment Trusts (REITs), which
“are securities and generally publicly traded” and therefore “may be exposed to market risk and
potentially significant price volatility due to changing conditions in the financial markets and, in
particular, changes in overall interest rates.” Id. at 28. In contrast, the returns on the TIAA Real
Estate Account are driven by the “fair value” of the real property it holds and the income those
properties generate. Id. at 3. The TIAA Real Estate Account invests directly in real properties—
unlike REITs, which invest in property management companies. See Defs.’ Mem. at 30.
Plaintiffs also complain that the TIAA Real Estate Account has “far higher fees
than are reasonable and has historically and continually underperformed comparable real estate
investment alternatives.” Opp’n at 9 (citing Compl. ¶ 86).
The Complaint
Plaintiff Wilcox has invested in the TIAA Traditional Annuity, the CREF Bond
Account, and eleven of the TIAA mutual funds. Compl. ¶ 20. Plaintiff McGuire is invested in
the CREF Stock Account, the CREF Equity Index Account, the TIAA Real Estate Account, the
7
See TIAA Real Estate Account Prospectus at 3 (May 1, 2017),
https://www.tiaa.org/public/pdf/realestate_prosp.pdf (last visited Dec. 11, 2018).
10
CREF Inflation-Linked Bond Fund Account, the CREF Bond Market Account, and the TIAA-
CREF Growth and Income Account. Id. ¶ 21.
Count I of the Complaint alleges that Georgetown breached its duty of prudence
by selecting and retaining investment options and services without engaging in a prudent process
to avoid inappropriately high administrative fees and expenses charged to the Plans. Id. ¶¶ 119-
25. Count II alleges that Georgetown breached its duty of prudence by failing to manage
prudently the Plans’ investment portfolios. Id. ¶¶ 126-37.
Georgetown counters these general allegations and their more specific
subparagraphs by summarizing Plaintiffs’ complaint as alleging that it “improperly allowed
TIAA-CREF, Vanguard and Fidelity separately to provide recordkeeping services for their own
respective investments”; “offered investment options that were more expensive than other
investment options that could have been offered”; “should have eliminated the [CREF] Stock
Account . . . because of its underperformance relative to the Russell 3000 index”; “should have
removed the Real Estate Account in favor of the Vanguard REIT Index (Institutional) mutual
fund”; and unreasonably maintained the TIAA Traditional Annuity despite its 2.5% surrender
charge. Defs.’ Mem. at 8-9. Plaintiffs summarize their allegations thusly: “Defendants have
retained not one, but three separate recordkeepers,” i.e., “bookkeepers,” that “charge asset-based
fees,” Opp’n at 2; “Defendants ignored the abysmal historical investment performance” of the
CREF Stock Account and the TIAA Real Estate Account; Defendants offered “an overwhelming
300 investment options” 8; “Defendants failed to provide accurate reporting . . . in reports filed
8
Plaintiffs allege that “[i]t is well known in the defined contribution retirement plan industry that
plans with dozens of choices . . . ‘fail’” because the choices are overwhelming and “studies show
that when people are given too many choices of anything, they lose confidence or make no
decision.” Compl. ¶ 42 (citation omitted). However, Plaintiffs provide no evidence that they
were confused or overwhelmed by the available investment options or that they were unable to
11
with the DOL”; “Defendants approved a loan program that . . . violated federal regulations”; and
the TIAA Traditional Annuity violates regulations “that all contracts be terminable on reasonably
short notice without penalty.” Id. at 2-3.
II. LEGAL STANDARD
Jurisdiction
Federal courts, as established by Article III of the Constitution, are courts of
limited jurisdiction. U.S. Const. art. III, § 2. As relevant here, federal courts have jurisdiction
over cases involving federal statutes, 28 U.S.C. § 1331, and where, in the Constitution's words,
there is a “Case[ ]” or “Controvers[y],” U.S. Const. art. III, § 2, cl. 1; see also David v. Alphin,
704 F.3d 327, 338 (4th Cir. 2013) (noting that federal courts have “subject matter jurisdiction
over ERISA claims only where the [litigants] have both statutory and constitutional standing”).
No action of the litigants can confer subject matter jurisdiction on a federal court. Akinseye v.
District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003).
From a statutory perspective, ERISA explicitly authorizes participants or
beneficiaries of private employee benefit plans to bring suit in federal court, without respect to
the amount in controversy or citizenship of the parties, over ERISA-based claims. See 29 U.S.C.
§ 1132(e)(1) (“Except for actions under subsection (a)(1)(B) of this section, the district courts of
the United States shall have exclusive jurisdiction of civil actions under this subchapter brought
by the Secretary or by a participant, beneficiary, fiduciary . . .”); id. § 1132(f) (“The district
courts of the United States shall have jurisdiction, without respect to the amount in controversy
make decisions regarding those options. To the contrary, both were invested in multiple
investment options and had “access to advisors who provide valuable one-on-one retirement
planning services.” Defs.’ Mem. at 19.
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or the citizenship of the parties, to grant the relief provided for in subsection (a) of this section in
any action.”).
Plaintiffs bring suit, individually and as putative representatives of a class of
participants in the Plans, under 29 U.S.C. § 1132(a)(2) and (a)(3), to enforce Messrs. Wilcox and
McGuire’s personal liability as ERISA fiduciaries under 29 U.S.C. § 1109(a). Section
1132(a)(2) allows participants or beneficiaries of plans to sue for “appropriate relief,” under §
1109, which establishes personal liability for an ERISA fiduciary for breaches of fiduciary duties
that result in losses to the plan. See 29 U.S.C. § 1109(a); id. § 1132(a)(2). Participants or
beneficiaries may also sue under § 1132(a)(3) to enjoin violations of ERISA or of the terms of an
ERISA plan, or to obtain “other appropriate equitable relief” to redress such violations or enforce
fiduciary obligations. Id. § 1132(a)(3).
However, statutory standing is not the end of the inquiry. Georgetown challenges
Plaintiffs’ standing to sue under Article III of the Constitution. The traditional Article III
standing inquiry is well-known:
a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a)
concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly traceable to the
challenged action of the defendant; and (3) it is likely, as opposed to
merely speculative, that the injury will be redressed by a favorable
decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000).
Accordingly, it is possible for a litigant to have statutory standing but not Article III standing.
When a defendant challenges a plaintiff’s standing to bring a lawsuit, the
defendant’s motion is properly understood as a motion to dismiss for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1). This is because a “defect of
standing is a defect in subject matter jurisdiction.” Haase v. Sessions, 835 F.2d 902, 906 (D.C.
13
Cir. 1987). “If plaintiffs lack Article III standing, a court has no subject matter jurisdiction to
hear their claim.” Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco
Managed Care, L.L.C., 433 F.3d 181, 198 (2nd Cir. 2005). Under Rule 12(b)(1), the party
claiming subject matter jurisdiction bears the burden of demonstrating that it has standing.
Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008). The court reviews a complaint
liberally, giving a plaintiff the benefit of all reasonable inferences that can be derived from the
facts alleged. Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004). Georgetown’s motion
turns on application of this framework.
Venue
This District is the proper venue for this action under 29 U.S.C. §1132(e)(2) and
28 U.S.C. §1391(b) because it is the district in which the Plans are administered, where at least
one of the alleged breaches took place, and where the Defendants reside or may be found. See
29 U.S.C. §1132(e)(2) (ERISA actions of this nature “may be brought in the district where the
plan is administered, where the breach took place, or where a defendant resides or may be found,
and process may be served in any other district where a defendant resides or may be found”).
Motion to Dismiss Under Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) requires a complaint to be sufficient “to
give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). Although a complaint
does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his
entitlement to relief “requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Id. The facts alleged “must be enough to raise a right
to relief above the speculative level.” Id. A complaint must contain sufficient factual matter to
state a claim for relief that is “plausible on its face.” Id. at 570. When a plaintiff pleads factual
14
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged, then the claim has facial plausibility. See Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “The plausibility standard is not akin to a probability requirement, but it asks for
more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678. A court must
treat the complaint’s factual allegations as true, “even if doubtful in fact.” Twombly, 550 U.S. at
555. But a court need not accept as true legal conclusions set forth in a complaint. See Iqbal,
556 U.S. at 678. The court may also consider documents in the public record of which the court
may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007).
In ruling on a motion to dismiss in an ERISA action, the court “is not confined to the allegations
in the complaint, but may review the plan documents referred to in the complaint and relied on
by the plaintiff.” Abraha, 243 F. Supp. 3d at 192 (citation omitted).
Fiduciary Duty Under ERISA
Plaintiffs rely on ERISA § 1132(a)(2) and (3) as the basis for their breach of
fiduciary claim. Section 1132(a)(2) allows plan participants to sue a fiduciary on behalf of the
plan for “appropriate relief” under § 1109. Section 1109 establishes personal liability for
an ERISA fiduciary who breaches fiduciary duties that result in losses to the plan. See 29 U.S.C.
§ 1109(a). Section 1132(a)(3) permits plan beneficiaries or participants to sue to enjoin
violations of ERISA or of the terms of an ERISA plan, or to obtain “other appropriate equitable
relief” to redress or enforce such violations. 29 U.S.C. § 1132(a)(3). Thus, § 1132(a)(2)
provides for recovery on behalf of the Plan for breaches of fiduciary duty that cause loss to the
Plan, while § 1132(a)(3) allows for individual equitable relief to enjoin or enforce ERISA
violations.
Under ERISA, a person or entity is a fiduciary, inter alia, when they “exercise[]
any discretionary authority or discretionary control respecting management of such plan or
15
exercise[] any authority or control respecting management or disposition of its assets . . . or
[have] any discretionary authority or discretionary responsibility in the administration of such
plan.” 29 U.S.C. § 1002(21)(A).
As relevant here, ERISA imposes a duty of prudence on fiduciaries. Abraha, 243
F. Supp. 3d at 184. The D.C. Circuit has held that “[p]rudence under ERISA is measured
according to the objective prudent person standard developed in the common law of trusts.”
Fink v. Nat’l Sav. and Trust Co., 772 F.2d 951, 955 (D.C. Cir. 1985) (citing S. Rep. No. 93–127,
93d Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Ad. News 4639, 4838, 4865) (“The
fiduciary responsibility section, in essence, codifies and makes applicable to these fiduciaries
certain principles developed in the evolution of the law of trusts.”). To state a claim for breach
of fiduciary duty, a plaintiff must allege: (1) the defendant(s) are plan fiduciaries; (2) the
defendants breached their fiduciary duties; and (3) the breach caused harm to the plaintiff(s).
Abraha, 243 F. Supp. at 184. “A court’s task in evaluating fiduciary compliance with this
standard is to inquire ‘whether the individual trustees, at the time they engaged in the challenged
transactions, employed the appropriate methods to investigate the merits of the investment and to
structure the investment.’” Id. (citing Donovan v. Mazzola, 716 F.2d 1226, 1232 (9th Cir. 1983),
cert. denied, 464 U.S. 1040 (1984)).
III. ANALYSIS
The Teachers Investment and Annuity Association (TIAA) was founded in 1918
with the purpose of investing in annuities to pay pensions to teachers for their lifetimes after
retirement. 9 No party disputes that annuities constitute long-term investments for anticipated
9
See TIAA, Our History, https://www.tiaa.org/public/why-tiaa/who-we-are (last visited Dec. 11,
2018).
16
long-term benefits. But the modern world moves quickly; the stock market has reached
historically high values in recent years, which may render the intended slow and careful growth
of annuities less attractive, and Plaintiffs chafe at the limitations of access to Participant monies
in the TIAA Traditional Annuity.
It may be that Plaintiffs want to force Georgetown to reconsider its entire strategy
behind the Plans and to have them become more like corporate plans under Internal Revenue
Code § 401 (conferring “qualified trust” status on “a trust created or organized in the United
States and forming part of a stock bonus, pension, or profit-sharing plan of an employer for the
exclusive benefit of his employees or their beneficiaries”); see also § 401(k) (extending § 401
benefits to “any arrangement which is part of a profit-sharing or stock bonus plan, a pre-ERISA
money purchase plan, or a rural cooperative plan”). However, it is not a breach of fiduciary duty
to maintain the Plans as established tax-deferred vehicles under the particular protections of
§ 403(b). Therefore, the question is whether the Complaint alleges fiduciary breaches in the
context of the § 403 Plans in question.
Jurisdiction Over Challenges to Vanguard Mutual Funds, the TIAA Real
Estate Account and the TIAA Traditional Annuity
Plaintiffs complain about the available classes of stock in the Vanguard funds, the
return on the TIAA Real Estate Account, and charges from the TIAA Traditional Annuity for
early withdrawal and/or for its time constraints on changing investments. Georgetown moves to
dismiss, arguing that Plaintiffs have sustained no injury-in-fact from any of these funds: neither
invested in the Vanguard mutual funds; the TIAA Real Estate Account, in which only Mr.
McGuire invested, performed well in the relevant class period; and only Mr. Wilcox invested in
the TIAA Traditional Annuity but he does not say whether he did so under the Defined
Contribution Plan or the Voluntary Plan, which have different withdrawal (and interest)
17
provisions; nor has he attempted to withdraw funds or change his investments. Plaintiffs counter
that they bring suit under 29 U.S.C. § 1132(a)(2) and (3) and since Plaintiffs sue “on behalf of
the Plans,” they “do not need to allege injury with respect to their individual benefit payments.”
Opp’n at 24.
Plaintiffs mistake the difference between a defined benefit plan and a defined
contribution plan. In the former, an employer contributes to a general fund from which all
promised benefits are to be paid; an injury to the value of the general fund injures the chances
that all participants will receive the promised benefits. In certain circumstances, one or more
Participants may sue on behalf of the plan itself. See LaRue, 552 U.S. at 255 (“Misconduct by
the administrators of a defined benefit plan will not affect an individual’s entitlement to a
defined benefit unless it creates or enhances the risk of default by the entire plan.”) (citing Mass.
Mut. Life Ins. Co. v. Russell, 473 U.S. 134 (1985)). In a defined contribution plan, however, an
employer contributes a defined amount to an individual employee’s individual account, and
“fiduciary misconduct need not threaten the solvency of the entire plan to reduce benefits below
the amount that participants would otherwise receive . . . . [A]lthough § 502(a)(2) does not
provide a remedy for individual injuries distinct from plan injuries, that provision does authorize
recovery for fiduciary breaches that impair the value of plan assets in a participant’s individual
account.” Id. at 256. Thus, for either Plaintiff to have standing to sue about their defined
contribution Plan, he must show fiduciary breaches that impair his individual account’s value.
Plaintiffs rely on 29 U.S.C. § 1132(a)(2) and (3) to support their rights to sue as
Participants. These provisions of ERISA, among others, provide standing to beneficiaries to sue
fiduciaries for imprudent actions. This statutory authority to sue, however, does not
automatically satisfy constitutional standing for all claims in this case. “Article III of the
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Constitution limits [federal courts’] jurisdiction to ‘Cases’ and ‘Controversies.’” Millennium
Pipeline Co., LLC v. Seggos, 860 F.3d 696, 699 (D.C. Cir. 2017), and Georgetown argues that
without a cognizable personal injury-in-fact, Plaintiffs present no case or controversy redressable
by court order. “Standing to sue is a doctrine rooted in the traditional understanding of a case or
controversy,” under Article III. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). “[T]he
irreducible constitutional minimum of standing contains three elements.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). The D.C. Circuit has summarized these requirements quite
clearly:
To satisfy the case-and-controversy requirement, a [plaintiff] must
allege (i) that it suffered an injury in fact; (ii) that a causal
connection exists between the injury and challenged conduct; and
(iii) that it is likely, as opposed to speculative, that the injury will be
redressed by a favorable decision.
Millennium Pipeline, 860 F.3d at 699 (citing Lujan, 504 U.S. at 560-61)).
In a class action, the named plaintiffs must demonstrate that they have
Constitutional standing, O’Shea v. Littleton, 414 U.S. 488, 494 (1974), measured at the time the
complaint was filed. Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830 (1989).
Measured by these standards, Plaintiffs clearly cannot allege an individual violation of ERISA as
to the Vanguard funds, which is an investment option neither Plaintiff selected.
Georgetown also moves to dismiss Mr. Wilcox’s complaint about the 2.5% early-
withdrawal charge from the TIAA Traditional Annuity since he fails to allege that he has
attempted such a withdrawal or intends to leave his job and withdraw his funds. It argues that
“‘[a] claim is not ripe for adjudication if its rests upon contingent future events that may not
occur as anticipated, or indeed may not occur at all.’” Pfizer, Inc. v. Shalala, 182 F.3d 975, 978
(D.C. Cir. 1999) (quoting Texas v. United States, 523 U.S. 296, 301 (1998)). Mr. Wilcox
concedes this point by not contesting it. Opp’n at 21-22. Instead, he responds that Georgetown
19
fails to address his second claim that a Participant in the TIAA Traditional Annuity cannot re-
direct his investments into other options during his employment except in ten annual
installments, which allegedly limits Mr. Wilcox in his investments. Id. at 21 (“Tellingly,
Defendants do not take issue with Plaintiffs’ standing to bring a breach of fiduciary duty claim
concerning the ten annual installments . . . .”). 10
In reply, Georgetown presses its original point that no injury has been shown by
either Plaintiff. It adds that the ten-year period for transferring money out of the TIAA
Traditional Annuity was disclosed on the first page of Mr. Wilcox’s Group Retirement Annuity
Certificate, issued on July 1, 2013, which is long before the three-year statute of limitations for
his claim relating to it. Reply Mem. in Supp. of Defs.’ Mot. to Dismiss Pls.’ Compl. (Defs.’
Reply) [Dkt. 27] at 6. 11
As to the TIAA Real Estate Account, in which only Mr. McGuire invested,
Georgetown argues that Mr. McGuire suffered no harm because the TIAA Real Estate Account
out-performed the Vanguard REIT Account, which Mr. McGuire would prefer, during the
alleged class period. Plaintiffs complain about the “excessive expenses” of the former, Opp’n at
17, but comparing the TIAA Real Estate Account to the Vanguard REIT, net of fees, the TIAA
Real Estate Account still performed better. 12 Plaintiffs themselves acknowledge that the
10
Inasmuch as Mr. McGuire has not invested in the TIAA Traditional Annuity, he has no
standing to complain of any of its terms, just as Mr. Wilcox cannot complain about the TIAA
Real Estate Account in which he did not invest.
11
The Court also notes that these features—charges for lump sum distribution and annual
withdrawal requirements—are features “inherent in a guaranteed fixed annuity fund.” See Davis
v. Washington Univ. in St. Louis, Case No. 4:17-cv-1641, 2018 WL 4684244 at *4 (E.D. Mo.
Sept. 28, 2018)
12
Compare Morningstar, TIAA Real Estate Account (QREARX),
http://www.morningstar.com/funds/XNAS/QREARX/quote.html, with Morningstar, Vanguard
Real Estate Index Institutional (VGSNX),
20
comparison “do[es] account for management, administrative, and 12b-1 fees and other costs
automatically deducted from fund assets.” 13 Nonetheless, Plaintiffs complain that the
Morningstar data “are not load adjusted,” that is, adjusted to reflect the sales charge(s). 14 But, as
Georgetown argues, the TIAA Real Estate Account does not charge investors any “load,” and so
the comparisons between returns for the TIAA Real Estate Account and the Vanguard REIT are
accurate. 15
Further, the Court finds that Plaintiffs’ argument that Georgetown impermissibly
relies on hindsight, Opp’n at 18, reverses the appropriate timeline by which to measure fiduciary
duties. While an unhappy participant would improperly rely on hindsight to complain that his
investments underperformed others, the question regarding appropriate prudence by a fiduciary
necessarily depends on “information available to the fiduciary at the time of each investment
decision.” PBGC ex rel. St. Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv.
Mgmt., Inc., 712 F.3d 705, 716 (2d Cir. 2013) (quoting In re Citigroup ERISA Litig., 662 F.3d
128, 140 (2d Cir. 2011)). More importantly in this circumstance, the question is whether Mr.
McGuire suffered an injury-in-fact. During the relevant time period, his funds remained in the
better-performing TIAA Real Estate Account rather than the Vanguard REIT Account. He
http://www.morningstar.com/funds/xnas/vgsnx/quote.html last visited Dec. 11, 2018); see Fed.
R. Evid. 201(c).
13
Opp’n at 19 (quoting Morningstar Report: Mutual Fund Data Definitions,
http://quicktake.morningstar.com/datadefs/fundtotalreturns.html (last visited Dec. 11, 2018)).
14
See Morningstar Investing Glossary, “Load,”
http://www.morningstar.com/InvGlossary/load_definition_what_is.aspx (last visited Dec. 11,
2018).
15
See, Morningstar, TIAA Real Estate Account,
https://www.morningstar.com/funds/XNAS/QREARX/quote.html (“Load”: “None”) (last visited
Dec. 11, 2018).
21
therefore experienced no loss or injury from that investment. See, e.g., Brown v. Medtronic, Inc.,
628 F.3d 451, 455 (8th Cir. 2018) (holding that, in an ERISA case, “at a minimum, a plaintiff
must allege a net loss in investment value that is fairly traceable to the defendants’ challenged
actions”) (emphasis added). (Since Mr. Wilcox did not invest in the TIAA Real Estate Account,
he has no standing to complain about its performance because he too has no injury to show.)
Therefore, dismissal will be granted on the Complaint allegations concerning the
Vanguard funds, the 2.5% withdrawal charge from the TIAA Traditional Annuity, and the TIAA
Real Estate Account. Dismissal will also be granted as to Mr. McGuire’s claims concerning the
requirement of the TIAA Traditional Annuity requirement that funds be re-allocated over a ten-
year period because Mr. McGuire has never invested in the TIAA Traditional Annuity; he
therefore also lacks standing to represent other Plan Participants who did.
CREF Stock Account
Plaintiffs take issue with the “excessive fees and historical underperformance” of
the CREF Stock Account, Compl. ¶ 132, in comparison to the Russell 3000 and “other, lower-
cost actively and passively managed investments that were available to the Plans.” Id. ¶ 72.
Plaintiffs allege that Defendants failed to conduct an analysis of the CREF Stock Account
performance and investments fees and “had such an analysis been conducted by Defendants, they
would have determined that the CREF Stock Account would not be expected to outperform the
large cap retirement plan investment performance index after fees.” Id. ¶¶ 75-76. This argument
is based on a false premise and fails to state a plausible claim for relief.
Plaintiffs’ allegation that “Defendants and TIAA-CREF identified the Russell
3000 index as the appropriate benchmark to evaluate the CREF Stock Account’s investment
results,” Compl. ¶ 77, oversimplifies and misstates the facts and governing law. As Georgetown
notes, and as explained in the relevant prospectus, the CREF Stock Account is a blend of U.S.
22
and foreign assets, such that domestic indices (like the Russell 3000) are comparators to only
part of its holdings. See Defs.’ Mem at 7, 27; Defs.’ Reply at 13; 2017 CREF Prospectus at 27.
This particular account “seeks to maintain the weightings of its holdings as approximately 65-
75% domestic equities and 25-35% foreign equities,” as detailed in its Prospectus. Defs.’ Mem.
at 7 n.13 (citing 2017 CREF Prospectus). However, applicable Department of Labor regulations
do not permit the use of a composite benchmark, so Plan Participant disclosures reference only
the Russell 3000 (domestic) component of the benchmark. See 29 C.F.R. § 2550.404a-
5(d)(1)(iii); Fiduciary Requirements for Disclosure in Participant Directed Individual Account
Plans, 75 Fed. Reg. 64,910, 64,916-17 (Oct. 20, 2010)). The CREF Stock Account explains that
the appropriate benchmark is a composite of the Russell 3000 and the MSCI All Country World
ex USA Investible Market Index. With full advice and knowledge of these facts, Plaintiffs’
argument that the CREF Stock Account underperformed the Russell 3000, and that this indicates
imprudence on the part of Defendants, is without merit.
Plaintiffs’ further argument that the fund underperformed “other, lower-cost
actively and passively managed investments that were available to the Plans” similarly is
unavailing. First, ERISA does not provide a cause of action for “underperforming funds.” See
Sweda v. Univ. of Penn., Case No. 16-cv-43292017, WL 4179752 at *10 (E.D. Pa. Sept. 21,
2017). Second, a fiduciary is not required to select the best performing fund, Meiners v. Wells
Fargo & Co., 898 F.3d 820, 823 (8th Cir. 2018), but instead to “discharge their duties with care,
skill, prudence, and diligence under the circumstances then prevailing” when they make
decisions. 29 U.S.C. § 1104(a)(1)(B). That the CREF Stock Account, with its deliberate mix of
foreign and domestic investments, may not have performed as some purely domestic accounts
with different investments does not indicate imprudence on the part of Defendants. Again,
23
Plaintiffs ignore the facts of this case in apparently adopting allegations from other cases that are
unsuited to the Plans. Notably, the independent analyst Morningstar rated the CREF Stock
Account as a 5-start investment option, which also counters Plaintiffs’ allegations of imprudence.
Recordkeeping Fees
Much of Plaintiffs’ ire is focused on their allegations that Defendants failed to
monitor and control “duplicative, excessive, and unreasonable fees.” Opp’n at 23. They allege
that Defendants breached their fiduciary duties by allowing three recordkeepers—TIAA,
Vanguard and Fidelity—and thereby “creat[ed] needless additional expense and complexity.”
Opp’n at 29. Plaintiffs recognize that recordkeeping services are “a necessary administrative
requirement for retirement plans. A recordkeeping firm keeps track of participant accounts, and
creates an online portal where participants can view their accounts.” Id. at 22 n.14. However,
they allege that such services, if performed by a single entity, could be provided across all the
three investment platforms for a “reasonable amount of a fixed fee . . . in the range of $35” each
year for each participant. Id. at 23.
Georgetown responds that there is no inference of fiduciary mismanagement from
the fact that TIAA, Vanguard, and Fidelity keep separate records for their own accounts.
Georgetown’s arguments distinguish between different kinds of defined contribution plans, that
is, “university plans like Georgetown’s [and] corporate 401(k) plans that look nothing like
Georgetown’s.” Defs.’ Mem. at 27. Georgetown insists that its approach to recordkeeping is
consistent with the norms of its peers’ higher-education plans, for which “‘[t]he traditional
403(b) plan has historically been implemented through a multi-provider recordkeeper platform,’”
and that “arrangement remains ‘[t]he most prevalent model by far.’” Id. at 17 (citations omitted).
Georgetown notes that ERISA requires fiduciaries to act as would a reasonable individual “in the
conduct of an enterprise of a like character and with like aims,” 29 U.S.C. § 1104(a)(1)(B), and
24
asks the Court to find that the appropriate peer group against which to measure its conduct is
fiduciaries at other private universities, not fiduciaries of corporate 401(k) plans. Plaintiffs
contend that ERISA litigation against university trustees is suddenly popular (“dozens of
lawsuits”) because university fiduciaries “ignored what was going on in the defined contribution
world” and “engaged in the same bad behavior” by ignoring recordkeeping costs. Opp’n at 28.
Nonetheless, Plaintiffs fail to identify a single one of the “any number of
university plans [that] provide for a single recordkeeper with investment choices offered by
multiple fund managers,” Compl. ¶ 47, much less one that offers the TIAA Traditional Annuity
and other investment platforms through a single recordkeeper. To the contrary, Plaintiffs only
identify multiple cases in which district courts have found such allegations sufficient to proceed
to discovery. See Opp’n at 1 n.3-4.
This Court finds that neither party is quite right. When it comes to recordkeeping,
the relevant difference between Georgetown’s § 403(b) plans and corporate § 401(k) plans is not
the nature of their defined contributions but the nature of the retirement investment programs
offered to their employees, i.e., long-term annuities and short-term investments. Plaintiffs allege
that recordkeeping for their TIAA annuities could and should have been consolidated with
recordkeeping for the mutual funds offered by Vanguard and Fidelity, thereby reducing such
costs by millions of dollars. The Complaint alleges that participants in the Georgetown Plans
should pay only $35/year per participant for recordkeeping services for all three investment
platforms. Compl. ¶ 53.
While a plaintiff is entitled to the reasonable inferences that may arise from the
facts asserted in his complaint, Plaintiffs provide no factual support at all for their assertion that
the Plans should pay only $35/year per participant in recordkeeping fees. They cite no example
25
of any non-TIAA entity performing recordkeeping for TIAA annuities, which, of course, are
based on decades worth of investments. See Ex. B, Supp. Auth. Slip Op. & Order, Sacerdote v.
New York Univ., Case No. 16-cv-6284 (S.D.N.Y. July 31, 2018) [Dkt 28-2] at 49 (finding, after
trial, that “no other vendor has ever recordkept TIAA annuities[] even if it were legally possible
to have another vendor do so . . . .”).
A claim that fiduciaries were imprudent by allowing excessive fees “must be
supported by facts that take the particular circumstances into account.” Id. at 13 (citing Young v.
Gen. Motors Inv. Mgmt. Corp., 325 Fed. App’x 31, 33 (2d Cir. 2009); Braden v. Wal-Mart
Stores, Inc., 588 F.3d 585, 601 n.7 (8th Cir. 2009) (noting that, although “a bare allegation that
cheaper alternative investments exist in the marketplace” is not sufficient to state a claim for a
breach of fiduciary duty under ERISA, a court ruling on a motion to dismiss must rest its
conclusions “on the totality of the specific allegations in [the] case”); see also Gartenberg v.
Merrill Lynch Asset Mgmt., 694 F.2d 923, 928 (2d Cir. 1982); Krinsk v. Fund Asset Mgmt., Inc.,
875 F.2d 404, 409 (2d Cir. 1989)).
Georgetown admits that it could have materially changed the Plans and thereby
reduced recordkeeping costs: (i) it could have “abandoned annuities, which are more expensive
to administer, but . . . would have caused participants to lose important and meaningful
benefits”; (ii) it could have redesigned the Plans to take a “no-frills” approach, by which
participants would have received only federally-mandated notices and no individual investment
advice; and/or (iii) it could have dropped the TIAA annuities or the Fidelity mutual funds to
attempt to reach a cost of $35/year. Defs.’ Mem. at 18-19. Notably, Plaintiffs do not allege that
the currently available investment resources would remain available at their preferred price of
$35/year.
26
Plaintiffs’ allegations challenge the fundamental structures of the Georgetown
Plans, not the fiduciary attentions or prudence of its Trustees. Indeed, the Plans could be
transformed from what they are to something else. But Plaintiffs provide no evidence that the
three entirely different current investment platforms—TIAA, Vanguard, and Fidelity—would
agree to continue the same offerings at a lesser, or combined, recordkeeping price; nor have they
identified any college or university that has accomplished that feat. Plaintiffs allege that the
value of Georgetown’s two Plans gives it sufficient bargaining power to accomplish such a
merger, but that is not the legal question presented by their Complaint. A fiduciary may carry
out his duties in different ways but whether he violates his duty of prudence requires that “the
advisor-manager must charge a fee that is so disproportionately large that it bears no reasonable
relationship to the services rendered and could not have been the product of arm’s-length
bargaining.” Gartenburg, 694 F.2d at 929. Plaintiffs’ allegations fail to meet this standard.
Plaintiffs do not allege self-dealing between the Plans’ trustees and the
recordkeepers. See Laboy v. Bd. of Trustees of Bldg Serv. 32 BJ SRSP, 513 Fed. App’x. 78, 80
(2d Cir. 2013). At most, they allege that the Trustees have not altered the Plans’ recordkeepers
(and, perhaps, its investment strategies) to lower costs to their preferred price. The mere
allegation that Georgetown could continue to offer the same Plans and the same associated
services for $35/year has no factual support, is entirely speculative, contrary to caselaw and
common sense, and does not warrant discovery.
27
IV. CONCLUSION
For the aforementioned reasons, Defendants’ Motion to Dismiss, Dkt. 18, will be
granted. A memorializing Order accompanies this Memorandum Opinion.
Date: January 8, 2019
ROSEMARY M. COLLYER
United States District Judge
28