Ronald Tussey v. ABB

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-2792
___________________________
Ronald C. Tussey; Charles E. Fisher; Timothy Pinnell
lllllllllllllllllllllPlaintiffs - Appellants
v.
ABB, Inc.; John W. Cutler, Jr.; Pension Review Committee of ABB, Inc.; Pension
& Thrift Management Group of ABB, Inc.; Employee Benefits Committee of
ABB, Inc.
lllllllllllllllllllllDefendants - Appellees
Fidelity Management Trust Company; Fidelity Management & Research Company
lllllllllllllllllllllDefendants
------------------------------
American Association of Retired Persons
lllllllllllllllllllllAmicus on Behalf of Appellants
Securities Industry and Financial Markets Association
lllllllllllllllllllllAmicus on Behalf of Appellees
___________________________
No. 16-1127
___________________________
Ronald C. Tussey; Charles E. Fisher; Timothy Pinnell
lllllllllllllllllllllPlaintiffs - Appellees
v.
ABB, Inc.; John W. Cutler, Jr.; Pension Review Committee of ABB, Inc.; Pension
& Thrift Management Group of ABB, Inc.; Employee Benefits Committee of
ABB, Inc.
lllllllllllllllllllllDefendants - Appellants
Fidelity Management Trust Company; Fidelity Management & Research Company
lllllllllllllllllllllDefendants
____________
Appeals from United States District Court
for the Western District of Missouri - Jefferson City
____________
Submitted: September 21, 2016
Filed: March 9, 2017
____________
Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.
____________
RILEY, Chief Judge.
A class of employees who participated in ABB, Inc.’s retirement
plans—“401(k) defined contribution savings plans,” to be precise, see generally
-2-
26 U.S.C. § 401(k)—accuse ABB and its agents (collectively, the ABB fiduciaries)
of managing the plans for their own benefit, rather than the participants’. In an earlier
appeal, we directed the district court to “reevaluate” how the participants might have
been injured if the ABB fiduciaries breached their fiduciary duties under the
Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001, et
seq., when they changed the investment options for the plans. See Tussey v. ABB,
Inc., 746 F.3d 327, 338 (8th Cir. 2014). Because the district court apparently mistook
that direction for a definitive ruling on how to measure plan losses, and as a result
entered judgment in favor of the ABB fiduciaries despite finding they did breach their
duties, we vacate the judgment on that claim and remand for further consideration
regarding whether the participants can prove losses to the plans. Because we thus
reopen one of the participants’ substantive claims, we also vacate and remand the
district court’s award of attorney fees.
I. BACKGROUND1
The plans offered participants a menu of options for investing the money in
their accounts.2 In 2000, ABB’s Pension Review Committee adopted a written policy
statement describing “the underlying philosophy and process for the selection,
monitoring and evaluation and, if necessary, removal of investment options.” The
policy statement said the plans would offer investments in three “tiers,” organized by
how much active involvement they demanded from investors. The first tier, meant
“[f]or participants unwilling or unable to make a personal asset allocation decision,”
was to “offer several ‘managed allocation’ funds designed to offer the participant a
1
Our prior opinion recounts the facts of the case more completely. See Tussey,
746 F.3d at 330-33. Here, we focus on what is relevant to this appeal.
2
We accept the parties’ representations that the differences between the two
plans at issue—one for ABB’s unionized employees, one for the others—are
irrelevant here.
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professionally managed, well diversified fund or funds appropriate for the
participants’ [sic] investment goals.”
John Cutler, Jr., the director of the committee’s staff, thought those “‘managed
allocation’” funds should be “target-date” or “life-cycle” funds, which dynamically
change their mix of investments to become more conservative as a specified date
(such as an employee’s expected retirement) approaches. Cutler favored the Fidelity
Freedom Funds, a family of funds with target dates at ten-year intervals from 2000
to 2040. Cutler also suggested removing the Vanguard Wellington Fund, an
established fund that invested in stocks and bonds in a generally static ratio. The
committee agreed on both points. Removing the Wellington Fund raised the question
of what to do with the money participants had invested in it—roughly $123 million,
representing about 8.4% of the total assets in the plans. The ABB fiduciaries decided
to move the money into the Freedom Funds, a process called “mapping” assets from
one investment to another. Participants whose money was mapped to a Freedom
Fund remained free to choose a different investment option (or options) at any time,
but the mapping decision made the Freedom Funds the default for anyone who had
been invested in the Wellington Fund and did not take affirmative steps to do
something else with their money.
In 2006, the participants sued the ABB fiduciaries and two Fidelity
companies—the recordkeeper for the plans and the investment advisor for the Fidelity
mutual funds included in the plans—under ERISA. See 29 U.S.C. §§ 1109,
1132(a)(2) (fiduciary liability and cause of action). After a bench trial, the district
court found both sets of defendants “breached some fiduciary duties that they owed
to the . . . Plans.” See id. § 1104(a)(1) (fiduciary duties). In particular, the district
court found the ABB fiduciaries breached their fiduciary duties by (1) deciding
effectively to replace the Wellington Fund with the Freedom Funds based on self-
interest rather than what was best for the plans, (2) failing to properly monitor and
control recordkeeping costs, and (3) agreeing to make the plans overpay for Fidelity’s
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services in return for Fidelity charging ABB less for corporate services it bought for
itself. The Fidelity defendants were liable as well, according to the district court,
because interest earned when money in the process of being added to or taken out of
plan investments was invested overnight—called “float income”—should have been
credited to the plans, not back to the investments. The district court awarded the
participants $21.8 million against the ABB fiduciaries for swapping the Wellington
and Freedom Funds, $13.4 million for the ABB fiduciaries’ other breaches, and $1.7
million against the Fidelity defendants on the float claim, plus attorney fees of $12.9
million from all the defendants jointly and severally, see id. § 1132(g)(1) (attorney
fees).
The defendants appealed. We vacated the finding of breach for changing the
investment options, explaining the district court should have afforded more deference
to the discretion the plans explicitly granted the ABB fiduciaries. See Tussey, 746
F.3d at 338. Because the issue could be relevant again on remand—if the district
court still found a breach after a properly deferential review—we added that, “[a]s
calculated,” the original award for switching the funds was “speculative and
exceed[ed] the ‘losses to the plan[s] resulting from’ any fiduciary breach.” Id. at 338
n.7, 339 (quoting 29 U.S.C. § 1109(a)). The district court had calculated the plans’
losses by comparing the returns on the Freedom Funds to what the participants would
have earned if they had invested in the Wellington Fund instead. We suggested “it
seems the participants’ mapping damages, if any, would be more accurately measured
by comparing the difference between the performance of the Freedom Funds and the
minimum return of the subset of managed allocation funds the ABB fiduciaries could
have chosen without breaching their fiduciary obligations.” Id. at 339. We affirmed
the ABB fiduciaries’ liability on the other claims, reversed the judgment against the
Fidelity defendants, and vacated the fee award—now only against the ABB
fiduciaries—so the district court could account for the resolution of the remanded
issue. See id. at 336-37, 340-41.
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On remand, the district court again held the ABB fiduciaries breached their
fiduciary duties. Yet the district court concluded the participants had failed to prove
any losses under the theory we “tacitly approved” in the first appeal—comparing the
Freedom Funds’ returns to the worst-performing of the funds the ABB fiduciaries
could have properly chosen—so the ABB fiduciaries nonetheless prevailed on that
claim.3 In light of that result, the district court reduced the participants’ attorney fee
award for work through trial by almost $2.2 million, to $10,768,474. The district
court also awarded the participants $900,000 for work on the appeal—just over two-
thirds of what they requested—for a total of $11,668,474. The participants appeal the
district court’s ruling on measuring losses and liability for the breach. In a
consolidated cross-appeal, the ABB fiduciaries argue both parts of the fee award are
still too high. See 28 U.S.C. § 1291 (appellate jurisdiction).
II. DISCUSSION
A. Liability
We start with the ABB fiduciaries’ assertion, presented as an alternative ground
for affirming the district court’s judgment on the merits, that they did not actually
breach their fiduciary duties, so there is no need to reach the issue of how much the
plans lost. Whether the ABB fiduciaries’ actions constituted a breach is a legal
question we must answer de novo. See, e.g., Tussey, 746 F.3d at 333. But what they
did, and why, are factual matters on which we accept the district court’s findings
unless they are clearly wrong. See, e.g., id.; Herman v. Mercantile Bank, N.A., 137
F.3d 584, 586 (8th Cir. 1998); see also Fed. R. Civ. P. 52(a)(6).
The heart of the ruling on remand was the district court’s conclusion that “the
removal of the Wellington Fund from the . . . platform and the mapping of its assets
3
At the end of its order, the district court reassured the participants that “[i]f the
Court has misread the Eighth Circuit, its decision . . . can be corrected on appeal.”
Thus, here we are.
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to the Freedom Funds . . . was motivated in large part to benefit Fidelity Trust and
ABB, not the Plan participants.” The ABB fiduciaries insist that determination was
the product of speculation, unfounded inferences, and the fallacy of “equat[ing] the
effect of a decision with its purpose.” To the contrary, strong evidence supported the
district court’s finding, notably the fact that Cutler—the director of the Pension
Review Committee’s staff—and ABB’s director of employee benefits openly
communicated with Fidelity about the “pricing implications” of changes to the plans’
investment lineup and the specific dollar amounts by which Fidelity would cut its fees
“if the Wellington money map[ped]/default[ed] to the Freedom Funds.”
The ABB fiduciaries stress that there was a great deal of other evidence too,
and some of it showed them acting against Fidelity’s interests in various ways. For
instance, the ABB fiduciaries dropped other lucrative Fidelity funds from the plans
and mapped their assets to non-Fidelity options. However, their examples all relate
to other investment decisions, not the Wellington-Freedom swap. The fact the ABB
fiduciaries apparently did not always favor Fidelity as much as they could, or seize
every opportunity to send Fidelity more of the participants’ money, does little to
undermine the district court’s finding about why they made the particular decisions
at issue in this case. That is all the more true given that we know conclusively the
ABB fiduciaries, in still other contexts, did “fail[] to monitor and control [Fidelity’s]
recordkeeping fees” and did “pay[] [Fidelity] excessive revenue sharing from Plan
assets.” Tussey, 746 F.3d at 336.
In addition to the direct evidence of meetings about “pricing implications,” the
district court’s finding was based on what it saw as “circumstantial evidence” of the
ABB fiduciaries’ motives. The ABB fiduciaries take issue with the district court’s
approach, which they say once again failed to afford proper deference to their choices
“in implementing the redesign and evaluating and selecting Plan investment options
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in accordance with the Plan.”4 Id. at 338. According to the ABB fiduciaries, the
district court was wrong to focus on perceived flaws in the ABB fiduciaries’ decision-
making process, such as not considering other possible replacements for the
Wellington Fund and giving an explanation for mapping the assets from the
Wellington Fund to the Freedom Funds that seemingly conflicted with the reason they
had given for dropping the Wellington Fund, because the ABB fiduciaries had
discretion over such things. The ABB fiduciaries overstate the deference they are
owed.
“[A] Plan administrator deserves discretion to the extent its ex ante investment
choices were reasonable given what it knew at the time.” Id. When the district court
considered the circumstances of how the ABB fiduciaries decided to swap the funds,
it was not second-guessing whether their decision was reasonable. Nor was it
naysaying their underlying determination of the appropriate procedure to use to make
such a decision. Rather, the district court was observing that the ABB fiduciaries’
actions—discretionary or not—when taken together and viewed in context, shed light
on their motivations. In particular, those actions tended to suggest the ABB
fiduciaries did what they did not because they thought it was best for the plans, but
4
The ABB fiduciaries, along with the Securities Industry and Financial Markets
Association (SIFMA) as amicus curiae, also point out that some parts of the district
court’s reasoning suggest it took a dim view of target-date funds in general, relative
to more traditional funds like Wellington, perhaps based on hindsight bias and a
failure to appreciate the differences between the two kinds of products. We agree that
simply comparing upfront costs or looking back at the funds’ earnings after the fact
would not have been a valid way to determine whether choosing the Freedom Funds
over Wellington was prudent. But the district court explicitly recognized that “[t]he
relative performance of the Freedom Funds and the Wellington Fund is only relevant
to determine whether a loss was sustained by the Plan,” not whether there was a
breach in the first place, and that “a non-conflicted fiduciary could have chosen the
Freedom Funds,” so we are satisfied any misunderstanding did not affect the district
court’s findings.
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because they wanted to get a better deal for themselves. As the district court
explained, “there [were] too many coincidences to make the beneficial outcome for
ABB serendipitous, particularly considering the powerful draw of self-interest when
transactions are occurring out of sight and are unlikely to ever be discovered.” A
fiduciary can abuse its discretion and breach its duties by acting on improper motives,
even if one acting for the right reasons might have ended up in the same place.5 Cf.
Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 117 (2008); id. at 123 (Roberts, C.J.,
concurring in part and concurring in the judgment); id. at 131 (Scalia, J., dissenting).
Because the choice of whose interests to favor, the plans’ or their own, was not
one over which the ABB fiduciaries could claim any discretion, cf. 29 U.S.C.
§ 1104(a) (“[A] fiduciary shall discharge his duties with respect to a plan solely in the
interest of the participants and beneficiaries.” (emphasis added)); Tussey, 746 F.3d
at 333-35, there was no place for deference in the district court’s factfinding on their
motives. There was no clear error in that factfinding either, so we will not disturb the
district court’s determination that “but for its conflict of interest, ABB would not have
made the same decisions.” And we see no reason to reject the legal conclusion the
district court drew from that fact—the ABB fiduciaries abused their discretion and
breached their fiduciary duties.
That brings us back to the question which prompted this appeal: how to
determine what that breach cost the plans? We answer de novo, because the method
for measuring losses, as distinct from the calculation itself, is a legal issue, see id. at
338-39, as is the explication of our previous decisions.
5
Such a breach might not be actionable, if it truly did not change the result and
thus did not cause any harm, but that is a separate question. See Roth v. Sawyer-
Cleator Lumber Co., 16 F.3d 915, 919 (8th Cir. 1994).
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What we said on this point was:
On remand, the district court should reevaluate its method of
calculating the damage award, if any, for the participants’ investment
selection and mapping claims. First, the district court awarded the
amount that participants who had invested in the Wellington Fund
presumably would have had if (1) ABB had not replaced the Wellington
Fund with the Freedom Funds, and (2) the participants remained
invested in the Wellington Fund for the entire period at issue. In light
of the [policy statement’s] requirement to add a managed allocation
fund, it seems the participants’ mapping damages, if any, would be more
accurately measured by comparing the difference between the
performance of the Freedom Funds and the minimum return of the
subset of managed allocation funds the ABB fiduciaries could have
chosen without breaching their fiduciary obligations.
Second, the district court determined “it [was] a reasonable
inference that participants who invested in the Freedom Funds would
have invested in the Wellington Fund had it not been removed from the
Plan’s investment platform.” Such an inference appears to ignore the
investment provisions of the [policy statement], participant choice under
the Plan, and the popularity of managed allocation funds. And the
participants fail to cite any evidentiary support for inferring the
participants’ voluntary, post-mapping investments in the Freedom Funds
would have instead been made in the Wellington Fund, even if that fund
remained as a Plan option for all of the years at issue. A reasonable
inference is one which may be drawn from the evidence without resort
to speculation. As calculated, the $21.8 million damage award for the
participants’ mapping claim is speculative and exceeds the losses to the
plan resulting from any fiduciary breach.
Id. (second alteration in original) (emphasis added) (footnote, quotation marks, and
citations omitted). According to the ABB fiduciaries, the italicized language was a
“binding alternative holding,” and thus became the “law of the case,” because it was
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necessary to give the district court a standard to apply on remand.6 We think that
gives the highlighted language too much weight.
To be sure, we did clearly rule that the original award was wrong “[a]s
calculated.” Id. at 339. At the same time, we left open exactly how it should be
fixed. We suggested two points in the district court’s explanation that “seem[ed]” or
“appear[ed]” to be mistaken, but we did so in tentative, qualifying terms, rather than
the firm, definite language we used for our holdings (the award “is speculative and
exceeds” the plans’ losses, and the district court “should reevaluate” its
methodology).7 Id. at 338-39 (emphasis added). Properly read, the passage at issue
proposed an alternative we thought warranted consideration (if measuring the plans’
losses became necessary again on remand), it did not require that the district court
adopt our proffered approach. That is why our overarching instruction to the district
court was to “reevaluate its method of calculating the damage award.” Id. at 338.
With that phrasing, we meant to make clear both that there was
work—“reevaluat[ion]”—left for the district court to do and the work involved
resolving the “method of calculating” losses, not just their ultimate amount. Such a
directive would have made little sense if, as the ABB fiduciaries assert, all we meant
6
The ABB fiduciaries also invoke the rules that one panel of this court cannot
overrule another, see, e.g., Maxfield v. Cintas Corp., No. 2, 487 F.3d 1132, 1135 (8th
Cir. 2007), and that the district court must strictly obey our mandate, see, e.g., Bethea
v. Levi Strauss & Co., 916 F.2d 453, 456 (8th Cir. 1990). Those theories boil down
to the same thing as the “law of the case” argument, namely an insistence that our
statement amounted to a definitive ruling on how to measure losses from the breach.
7
The ABB fiduciaries urge us to disregard this contrast in phrasing because in
1899 another court of appeals considered itself bound by a statement of law in a
Supreme Court decision even though it contained the words “it would seem.” See
Anderson v. Reid, 14 App. D.C. 54, 81-82 (D.C. Cir. 1899). We do not mean to
suggest such qualifications automatically render any statement to which they are
attached nonbinding. Yet they are not always superfluities either. Like any other
words in a judicial proclamation, they must be read and understood in context.
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for the district court to do was carry out the calculations under an approach we had
dictated on appeal.
The district court therefore should have considered other ways of measuring
the plans’ losses from the ABB fiduciaries’ breach, as well as the participants’
contentions about why, in their view, our proposal was misguided and contradicted
persuasive authority and the trust-law principles that generally inform ERISA
decisions, cf., e.g., Donovan v. Bierwirth, 754 F.2d 1049, 1056 (2d Cir. 1985)
(“Where several alternative investment strategies were equally plausible, the court
should presume that the funds would have been used in the most profitable of these.
The burden of proving that the funds would have earned less than that amount is on
the fiduciaries found to be in breach of their duty.”). We leave to the district court’s
discretion whether and how to expand the record and hear additional argument from
the parties on this issue. Although this case arguably illustrates the dangers of saying
more than we need to, we add two observations to inform the analysis on remand.
First, the district court treated our reference to measuring the Freedom Funds
against “the subset of managed allocation funds the ABB fiduciaries could have
chosen,” Tussey, 746 F.3d at 339, as limiting the comparison to “alternative target[-
date] fund[s].” That reading is echoed in the ABB fiduciaries’ claim on appeal that
“this Court determined that the performance of the Freedom family had to be
measured against a dynamic ‘managed allocation’ alternative.” It is unclear where
the ABB fiduciaries find the requirement of a “dynamic” comparator—we certainly
did not use that word. See id. And we see no basis for reading such a restriction into
the phrase “managed allocation funds,” either in our opinion or in the investment
policy statement we took it from. According to the minutes of the meetings where the
changes to the investment options were considered, both times Cutler briefed the
Pension Review Committee about managed allocation funds he “not[ed] that there
were two types: static and dynamic.” So while dynamic target-date funds are one
kind of managed allocation fund, they are not the only one. Indeed, absent other
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evidence of a more limited technical definition, as a matter of plain meaning the
Wellington Fund itself would appear to be a static managed allocation fund—a
portfolio manager actively monitors how its assets are allocated, keeping the overall
mix of investments roughly constant but selecting the stocks, bonds, and other
securities it holds at any given time.
Second, it is a mistake to argue, as the ABB fiduciaries and SIFMA do, that
measuring any portion of the losses by comparing the returns from the Freedom
Funds with what the plans would have earned from the Wellington Fund is
necessarily inappropriate because it involves “an apples-to-oranges comparison.”
True, the funds are designed for different purposes and thus choose their investments
differently, so there is no reason to expect them to make similar returns over any
given span of time. But the point of the comparison here would just be to determine,
as a factual matter, the effect of owning one fund rather than the other. The reason
for any difference in returns would be immaterial.8
This is not to say we are sure a comparison with the returns on the Wellington
Fund must be part of measuring what the ABB fiduciaries’ breach cost the plans, just
that we are unpersuaded by these two arguments against it and do not want them to
unduly occupy the parties and the district court on remand. The measure and amount
of the plans’ losses remain for the district court to resolve. See generally Martin v.
Feilen, 965 F.2d 660, 671-72 (8th Cir. 1992) (insisting the district court perform its
“function ‘to fashion the remedy best suited to the harm’” even though the plaintiff
had “presented only an unsound . . . damage theory,” and explaining “the measure of
8
By the same logic, making the comparison would not imply a (mistaken) view
that whichever fund earned more over the relevant time frame “should” have been
offered to the participants, or even that it performed “better” in a meaningful sense.
Not only can good bets go bust and bad bets hit the jackpot, but some investments are
simply meant to pay off less than others, in return for lower risks, different exposures,
or countless other considerations.
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such damages need not be exact—‘it will be enough if the evidence show [sic] the
extent of the damages as a matter of just and reasonable inference, although the result
be only approximate’” (first quoting Garnatz v. Stifel, Nicolaus & Co., 559 F.2d
1357, 1360 (8th Cir. 1977); and then quoting Story Parchment Co. v. Paterson
Parchment Paper Co., 282 U.S. 555, 563 (1931))).
B. Attorney Fees
In light of that disposition, we again vacate the award of attorney fees and
remand for the district court to adjust the award as appropriate if the participants
ultimately prevail on the liability issue.9 What happens on remand cannot change the
outcome of the first appeal. Therefore, we need not wait to review the portion of the
fee award corresponding to appellate work. The ABB fiduciaries urge us to conduct
this analysis de novo. There is no reason for deference to the district court’s
determinations, they explain, because the district court had no particular familiarity
with what happened on appeal—if any court has special insight into the work
involved, it is ours. We note the district court is still significantly more experienced
than we are when it comes to analyzing and awarding attorney fees as a general
matter, even if it did not see this part of the litigation firsthand. Questions of relative
expertise notwithstanding, our case law is certain that when a district court’s fee
award is for work on appeal, “we review its amount for abuse of discretion.” Little
Rock Sch. Dist. v. Arkansas, 127 F.3d 693, 697 (8th Cir. 1997).
The main justification the ABB fiduciaries give for reducing the fee award is
that it was based on hourly rates the district court drew from another large ERISA
case involving the same plaintiffs’ law firm, Abbot v. Lockheed Martin Corp., No.
06-cv-701, 2015 WL 4398475 (S.D. Ill. July 17, 2015), which the ABB fiduciaries
9
We dismiss as moot the participants’ motion to strike a portion of the ABB
fiduciaries’ reply brief, because the challenged passages concern an issue we do not
reach.
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say were too high. They emphasize that the fee request in the other case was
unopposed—the case had settled, the award was to come out of the settlement pot,
and there was no meaningful objection from the plaintiffs’ class—and the amount was
initially set as a percentage of the total recovery, with the hourly rates serving only
as a check on the product of that calculation. See id. at *1-3. Wherever the rates
originally came from, a federal judge, relying on the findings of a special master,
reviewed them and specifically concluded they were “reasonable and consistent with
market rates.” Id. at *3-4. The ABB fiduciaries do not counter the participants’
showing with any contrary evidence affirmatively suggesting the rates are excessive,
consequently, we are satisfied the district court’s use of them was not an abuse of
discretion.
The ABB fiduciaries also emphasize the participants’ lawyers won on only one
issue (out of three) before this court and accuse them of spending too much time on
the appeal. The district court acknowledged both points and reduced the amount it
calculated based on the hourly rates by about a third to account for them. We cannot
say it was an abuse of discretion not to reduce it further.
Finally, we agree with the ABB fiduciaries that we can review and correct the
incentive awards the district court ordered for the three named plaintiffs. The
awards—$25,000 each—should be paid out of the class recovery, not by the ABB
fiduciaries on top of the other amounts they owe. This might well be the result the
district court intended—it is what the district court ordered in its original award,
which its order on remand claimed to be simply “reaffirm[ing]” on this point. And
it makes sense. Incentive awards compensate lead plaintiffs for their work and the
benefit they have conveyed on the rest of the class. See, e.g., Koenig v. U.S. Bank
Nat’l Ass’n, ND (In re US Bancorp Litig.), 291 F.3d 1035, 1038 (8th Cir. 2002).
There is no sound reason to make defendants pay for these awards.
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III. CONCLUSION
The district court did not err in deciding that the ABB fiduciaries abused their
discretion and breached their fiduciary duties by acting on improper motives when
they replaced the Wellington Fund with the Freedom Funds as investment options for
the plans. But the district court should have decided for itself how to measure what
the plans lost as a result, rather than considering itself bound by our prior comments
on the issue. That question is still for the district court to answer in the first instance,
so the judgment in favor of the ABB fiduciaries is at best premature. We therefore
vacate the judgment, vacate the award of attorney fees and costs, and remand the case
for further proceedings.
______________________________
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