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Morrison v. MoneyGram International, Inc.: US District Court : ERISA - standing of cashed-out participants; loyalty duties; damages from misrepresentations

ARGUELLO, on behalf of themselves and all
others similarly situated,
Case No. 08-CV-1121 (PJS/JJG)
Thomas J. McKenna, GAINEY & MCKENNA; and Shawn M. Perry, PERRY &
PERRY, PLLP, for plaintiffs.
Stephen P. Lucke, F. Matthew Ralph, Jessica J. Nelson, and Andrew J. Holly,
DORSEY & WHITNEY LLP, for defendants.
Plaintiffs Delilah Morrison and Sherri Arguello invested in a retirement plan (the Plan)
sponsored by their former employer, defendant MoneyGram International, Inc. (MoneyGram)
and established pursuant to the Employee Retirement Income Security Act (ERISA), 29 U.S.C.
1001 et seq. Plaintiffs bring this putative class action against various Plan fiduciaries,
including MoneyGram itself, the MoneyGram International Inc. Pension and 401(k) Committee
1All citations to ERISA are to Title 29 of the United States Code.
(the Committee), and various named and unnamed corporate officers and directors. Plaintiffs
allege that defendants breached various fiduciary duties, and that those breaches resulted in
losses for which defendants are now liable to the Plan under 1109 and 1132(a)(2).1 Plaintiffs
also seek injunctive and monetary relief for a class of participants and beneficiaries under
This matter is before the Court on defendants motion to dismiss for lack of subjectmatter
jurisdiction under Fed. R. Civ. P. 12(b)(1) and for failure to state a claim under Fed. R.
Civ. P. 12(b)(6). Defendants motion raises a number of difficult legal issues, some of which
have divided the federal courts. For the reasons stated below, the Court grants defendants
motion with respect to Count IV and denies it in all other respects.
A. The Plan
MoneyGram is the sponsor and administrator of the Plan, which was established on
July 1, 2004 (the first day of the proposed class period). Am. Compl. 3, 42, 53, 59; Swanson
Decl. Ex. B 1.1 (hereinafter Plan ___). The Plan incorporates a trust agreement (the
Trust) between MoneyGram and the Plan trustee, T. Rowe Price Trust Company. Am. Compl.
42; Plan 1.1; McKenna Decl. Ex. A (hereinafter Trust ___). The Committee is the
named fiduciary of the Plan within the meaning of 1102(a). Plan 8.1. All of the individual
2Plaintiffs assert six claims, each of which is brought against every defendant. The
parties have not drawn any distinctions among defendants for purposes of defendants motion to
dismiss. The Court will follow the parties lead.
3Plaintiffs allege otherwise in 3 of their Amended Complaint, but they have not
explained (or even acknowledged) the clear language to the contrary in the Plan nor disputed
MoneyGrams description of the Employer Stock Fund as a closed fund.
defendants are alleged to be Plan fiduciaries within the meaning of 1002(21)(A). In this Order,
the Court will sometimes refer to defendants collectively as MoneyGram.2
The Plan is a defined contribution or individual account plan within the meaning of
1002(34). Am. Compl. 40. The Plan is funded by contributions from individual participants
and from their employer, MoneyGram. Am. Compl. 41, 48. The Plan offers several
investment funds, including the Employer Stock Fund, which invests solely in MoneyGram
stock. Plan 7.2(c). Participants may choose to invest their individual contributions in any fund
offered by the Plan, with the exception of the Employer Stock Fund. That fund is reserved for
employer contributions.3 Plan 7.2(c).
MoneyGram has committed to match participants contributions to the Plan up to a
certain level, and MoneyGram may choose to make additional profit-sharing contributions to the
Plan. Am. Compl. 48; Plan 4.1. Until March 14, 2008, when the Employer Stock Fund was
closed to additional investments, MoneyGrams matching and profit-sharing contributions were
initially invested in the Employer Stock Fund. Am. Compl. 48, 50; Plan 7.3(a). A
participant could then transfer the contributions that MoneyGram had made on her behalf to any
of the other funds, or she could leave those contributions in the Employer Stock Fund. Swanson
Decl. Ex. C at 17 (hereinafter SPD at ___).
B. MoneyGram
MoneyGram is a large company that provides money-transfer and other financial services
to customers around the world. MoneyGram was incorporated in December 2003, and its
common stock began trading on the New York Stock Exchange on July 1, 2004. Am. Compl.
14, 70-71. MoneyGram is a spinoff of a subsidiary of another company, Viad Corp. (Viad).
MoneyGram assumed all liabilities for retirement benefits for certain current and former Viad
employees. Am. Compl. 70-71.
According to plaintiffs, MoneyGrams business model is predicated upon acquiring high
interest long-term assets with relatively low interest short-term money. Am. Compl. 76.
MoneyGrams goal is to generate arbitrage income, as measured by the difference between the
relatively low interest paid to the short-term commercial paper creditors and the higher interest to
be received by MoneyGram on its long-term investments. Am. Compl. 76. Toward that end,
MoneyGram invested hundreds of millions of dollars in mortgage-backed securities, Am. Compl.
65, 72 money that MoneyGram had borrowed by issuing short-term commercial paper,
Am. Compl. 76.
As of June 30, 2004, mortgage-backed securities made up approximately two-thirds of
MoneyGrams investment portfolio. Am. Compl. 72. As of the same date, MoneyGrams
investment portfolio had suffered nearly million in long-sustained losses that is, losses of
one year or longer in duration. Am. Compl. 72. Under Generally Accepted Accounting
Principles (GAAP), a company may exclude from the calculation of net income the unrealized
losses suffered on an investment in a security if (1) the losses are temporary (or, in accounting
parlance, not other than temporary), and (2) the security is held to maturity, meaning that the
company has the intent and ability to hold the security until it matures. Am. Compl. 73-74.
MoneyGram chose to treat its unrealized losses as temporary and its mortgage-backed
securities as held to maturity under GAAP. Am. Compl. 75. As a result, MoneyGram
excluded those unrealized losses when computing its net income. Am. Compl. 75. Plaintiffs
allege that this accounting treatment was improper both because the losses that MoneyGram
sustained on the mortgage-backed securities were other than temporary and because
MoneyGram did not have the ability to hold these assets until maturity. Am. Compl. 77. As a
result, plaintiffs allege, MoneyGram materially understated its recognized losses and thereby
materially overstated its net income. Am Compl. 77.
When a company excludes unrealized losses from the calculation of its net income under
GAAP, the company is nevertheless required to calculate and disclose those losses. Am. Compl.
73. Plaintiffs allege that, in addition to materially understating the losses that it should have
recognized (i.e., the losses that, under GAAP, should have been reflected in reductions to net
income), MoneyGram also materially understated its unrealized losses (i.e., the losses that, under
GAAP, were properly ignored when calculating net income). Am Compl. 87-92. For
example, plaintiffs allege that MoneyGram disclosed 0 million in unrealized losses on certain
securities as of November 30, 2007, but when it sold those same securities in January 2008,
MoneyGram realized 0 million in losses double the amount that it had disclosed just a few
weeks earlier. Am. Compl. 90-91.
In late 2007, Euronet Worldwide, Inc. offered to buy MoneyGram for per share
(which represented a premium of about 43% over the closing price on the day of the offer).
MoneyGram rejected the offer. Am. Compl. 78, 137-145. A short time later, on January 14,
2008, MoneyGram announced that it had completed the valuation of its investment portfolio as
of November 30, 2007, and had experienced additional unrealized net losses of 1 million
since September 30, 2007, bringing cumulative net unrealized losses to 0 million. Am.
Compl. 69. Immediately after this announcement, MoneyGrams stock lost nearly half its
value. Am. Compl. 69. In the same press release, MoneyGram announced that it was engaged
in negotiations with new investors for a capital infusion; ultimately, these new investors
purchased a majority stake in MoneyGram for around 0 million. Am. Compl. 116, 119.
By March 2008, MoneyGram had lost about .6 billion on its investments in mortgagebacked
securities, and its stock had lost 92% of its value over the preceding year. Am. Compl.
119. After MoneyGram disclosed these losses, the SEC opened an investigation into
MoneyGrams previous financial statements. Am. Compl. 119. As of the date of the filing of
the amended complaint, MoneyGram stock the same stock that Euronet Worldwide was
willing to purchase for per share in late 2007 was trading at under .50 per share. Am.
Compl. 122.
C. Fiduciary Communications
Plaintiffs allege that a number of communications made by defendants during the class
period were fiduciary communications governed by ERISA. Those communications include all
of MoneyGrams public SEC filings and all of the press releases that were incorporated into
those filings. Plaintiffs allege that these purported fiduciary communications included inaccurate
information about MoneyGrams investment portfolio. Specifically, plaintiffs allege that these
purported fiduciary communications inaccurately reported that MoneyGram had the ability to
hold its investments long-term, materially understated MoneyGrams unrealized losses, failed to
acknowledge that MoneyGrams losses were other than temporary, improperly represented that
MoneyGrams losses were due to temporary market conditions, and failed to include disclosures
that would enable Plan participants to assess the quality of MoneyGrams investment portfolio.
Am Compl. 106.
D. The Plaintiffs
Both of the named plaintiffs Morrison and Arguello cashed out of the Plan before
the price of MoneyGram stock plummeted in the wake of the January 14, 2008 disclosures about
the magnitude of the companys investment losses. Arguello was terminated by MoneyGram in
June 2007 and received a full distribution of her Plan account in December 2007. Second
Swanson Decl. 3. At the time Arguello received her distribution, MoneyGram stock was
trading at .897 per share. Second Swanson Decl. 3. Morrison left her employment with
MoneyGram in mid-October 2007 and received a full distribution of her Plan account about a
week later. Swanson Decl. 3. At the time Morrison received her distribution, MoneyGram
stock was trading at .8486 per share. Swanson Decl. 3.
A. Rule 12(b)(1)
Plaintiffs bring their claims under 1132(a)(2) and (3), both of which authorize actions
by a participant in an ERISA plan. ERISA defines a participant as follows:
The term participant means any employee or former employee of
an employer, or any member or former member of an employee
organization, who is or may become eligible to receive a benefit of
any type from an employee benefit plan which covers employees of
such employer or members of such organization, or whose
beneficiaries may be eligible to receive any such benefit.
1002(7). Courts have held that, to be a participant in an employee-benefit plan for purposes
of 1132(a)(2) and (3), a plaintiff must have a colorable claim for vested benefits under that
plan. Adamson v. Armco, Inc., 44 F.3d 650, 654 (8th Cir. 1995).
MoneyGram argues that, because Morrison and Arguello cashed out of the Plan, neither
is a participant for purposes of 1132(a)(2) and (3), and thus neither has standing to maintain
this action. MoneyGram therefore moves under Rule 12(b)(1) to dismiss plaintiffs complaint
for lack of subject-matter jurisdiction. Cf. Faibisch v. Univ. of Minn., 304 F.3d 797, 801 (8th
Cir. 2002) (if a plaintiff lacks standing, the district court has no subject-matter jurisdiction).
This Court and several other federal courts have recently held that the question of whether
a plaintiff is a participant in an employee-benefit plan for purposes of 1132(a)(2) and (3)
goes to the merits of an ERISA action and not to the subject-matter jurisdiction of the court. See,
e.g., Harzewski v. Guidant Corp., 489 F.3d 799, 803-804 (7th Cir. 2007) (Except in extreme
cases . . . the question whether an ERISA plaintiff is a participant entitled to recover benefits
under [ERISA] should be treated as a question of statutory interpretation fundamental to the
merits of the suit rather than as a question of the plaintiffs right to bring the suit.); Coan v.
Kaufman, 457 F.3d 250, 256 (2d Cir. 2006) (Although we have referred to a plaintiffs status as
a participant under ERISA as a question of standing, . . . it is a statutory requirement, not a
constitutional one.); In re Patterson Cos., Inc. Sec., Derivative & ERISA Litig., 479 F. Supp. 2d
1014, 1042 (D. Minn. 2007) (Defendants challenge plaintiffs status under ERISA and whether
she is the type of individual Congress intended to pursue litigation on behalf of the Patterson
4Generally, in ruling on a Rule 12(b)(1) motion,
the trial court may proceed as it never could under 12(b)(6) or
Fed. R. Civ. P. 56. Because at issue in a factual 12(b)(1) motion is
the trial courts jurisdiction its very power to hear the case
there is substantial authority that the trial court is free to weigh the
evidence and satisfy itself as to the existence of its power to hear
the case. In short, no presumptive truthfulness attaches to the
plaintiffs allegations, and the existence of disputed material facts
will not preclude the trial court from evaluating for itself the merits
of jurisdictional claims.
Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990) (quoting Mortensen v. First Fed. Sav.
& Loan Assn, 549 F.2d 884, 891 (3d Cir.1977)).
Plan, a challenge qualitatively distinct from a jurisdictional challenge to the courts Article III
power to hear a case or controversy.); but see Wilson v. Sw. Bell Tel. Co., 55 F.3d 399, 403 n.3
(8th Cir. 1995) (stating in dicta that [t]he argument that appellants lack standing to sue under
ERISA [because they are not participants] is a jurisdictional issue that could have been raised in
direct response to the appeal).
If these courts are correct, then MoneyGrams argument that plaintiffs are not
participants should be analyzed under Rule 12(b)(6) (or Rule 56) rather than Rule 12(b)(1).
But plaintiffs have not objected to MoneyGrams characterization of this issue as jurisdictional,
nor have they objected to the Courts consideration of matters outside the pleadings,4 nor have
they asked the Court to defer ruling on MoneyGrams motion until plaintiffs have had an
opportunity to take discovery. Given that the parties do not dispute any of the facts relevant to
the question of whether plaintiffs are participants within the meaning of 1132(a)(2) and (3),
it simply does not matter whether the Court analyzes this question under Rule 12(b)(1), 12(b)(6),
or 56. The dispute is purely legal, and the legal question will be answered the same no matter
what procedural rule applies.
As noted earlier, the Plan is a defined contribution plan within the meaning of
1002(34). The Supreme Court recently held that a participant in a defined-contribution plan
may bring a breach-of-fiduciary-duty claim under 1132(a)(2) for alleged losses to the
participants individual account. See LaRue v. DeWolff, Boberg & Assocs., Inc., 128 S. Ct. 1020,
1026 (2008). On its face, the Courts holding begged the question of who is a participant in a
defined-contribution plan. In a footnote, however, the Court noted that the defendants had filed a
motion to dismiss the writ of certiorari, arguing that the case was moot because the plaintiff had
recently cashed out of the plan and therefore was no longer a participant. Id. at 1026 n.6. The
Court rejected the defendants argument, explaining that the case is not moot because [a] plan
participant . . . may include a former employee with a colorable claim for benefits. Id. In
support of its holding, the Supreme Court cited Harzewski v. Guidant Corporation, 489 F.3d 799
(7th Cir. 2007).
In Harzewski, the plaintiffs were former employees of Guidant who brought claims under
1132(a)(2) against various fiduciaries of Guidants defined-contribution plan. The plaintiffs
contended that the fiduciaries had acted imprudently in failing to dispose of allegedly overvalued
Guidant stock that was held in the plan. Harzewski, 489 F.3d at 800, 803. After filing their
initial complaint, but before filing their amended complaint, the plaintiffs had retired from
Guidant and cashed out their pension benefits. Id. at 801. The district court dismissed the
plaintiffs complaint for lack of standing, but the Seventh Circuit reversed, holding that the
plaintiffs were participants in the plan because they had a claim for benefits. Id. at 804-05.
The Seventh Circuit noted that some courts have held, in similar cases, that the recovery
sought by a cashed-out participant in a defined-contribution plan is not a benefit but rather
damages. Harzewski, 489 F.3d at 804. The Seventh Circuit rejected this distinction. Id.
Instead, the Seventh Circuit explained, ERISA authorizes suits for monetary relief to which a
plan participant is entitled by the terms of the plan, and such a suit is a claim for benefits. Id.
In the case of defined-contribution plans, those benefits include money that would have been in
the participants account but for a fiduciarys breach of his duty. Id. As the Seventh Circuit
Suppose Guidant had stolen half the money in a plan participants
retirement account and a suit by the participant resulted in a
judgment for that amount; the suit would have established the
retirees eligibility for the larger benefit. There is no difference if
instead of stealing the money from the account, Guidant by
imprudent management caused the account to be half as valuable
as it would have been under prudent management. The benefit in a
defined-contribution pension plan is, to repeat, just whatever is in
the retirement account when the employee retires or whatever
would have been there had the plan honored the employees
entitlement, which includes an entitlement to prudent management.
Id. at 804-05. Cf. Harold Ives Trucking Co. v. Spradley & Coker, Inc., 178 F.3d 523, 526-27
(8th Cir. 1999) (noting that an award of damages that compels a defendant to make good to the
plan any losses to the plan resulting from the defendants breach falls squarely within the plain
meaning of 1132(a)(2) and 1109(a)).
The facts and allegations in this case mirror the facts and allegations in Harzewski. Like
Morrison and Arguello, the plaintiffs in Harzewski were former employees who brought claims
under 1132(a)(2) alleging that the defendants breached their fiduciary duties by retaining
overvalued employer stock in the plan. Also like Morrison and Arguello, the plaintiffs in
Harzewski sought the difference between what they actually received when they cashed out and
what they would have received but for the defendants breaches of their fiduciary duties. True,
the Harzewski plaintiffs did not cash out of the plan until after their initial complaint was filed,
whereas Morrison and Arguello cashed out before filing their initial complaint. But in reversing
the district courts dismissal for lack of standing, the Seventh Circuit did not rely on the fact that
the plaintiffs had not yet cashed out when they filed their initial complaint. Instead, the Seventh
Circuit clearly held that the plaintiffs were participants because, even after cashing out, they
continued to have a claim for vested benefits.
Under Harzewski, then, Morrison and Arguello would unquestionably be deemed to be
participants for purposes of 1132(a)(2) and (3). The fact that, in LaRue, the Supreme Court
similarly held that a cashed-out plaintiff was a participant and expressly relied on
Harzewski would seem to dispose of MoneyGrams contention that Morrison and Arguello
lack standing.
MoneyGram argues, though, that LaRue did not really hold that former employees who
have cashed out of a defined-contribution plan have a colorable claim for benefits. Instead,
MoneyGram argues, the Supreme Courts footnote was ambiguous about whether the plaintiff in
LaRue remained a participant in the plan. Because the Supreme Court did not resolve the issue,
MoneyGram argues, this Court is bound to follow the Eighth Circuits decisions in Adamson v.
Armco, Inc., 44 F.3d 650 (8th Cir. 1995) and Gilquist v. Becklin, 675 F. Supp. 1168 (D. Minn.
1987), affd, 871 F.2d 1093 (8th Cir. 1988) (unpublished table decision), which, according to
MoneyGram, together establish that cashed-out former employees lack standing to seek relief on
5Adamson does not, in fact, establish that a cashed-out former employee can never be a
participant in a plan for purposes of ERISA. In Adamson, the Eighth Circuit held that former
employees who had allowed their claims for benefits to become time-barred were no longer
participants and therefore lacked standing to bring claims for breach of fiduciary duty under
1132(a)(2) and (3). Adamson, 44 F.3d at 654. That holding is unremarkable, given that an
employee whose claim for benefits is time-barred no longer has a colorable claim for vested
benefits and thus no longer is a participant. But the claims of Morrison and Arguello are not
time-barred. Thus, although Adamson establishes the proposition that a plaintiff must have a
colorable claim for benefits to be a participant capable of bringing claims under 1132(a)(2)
and (3), Adamson does not answer the question whether Morrison and Arguello have such a
Gilquist is much closer to the mark. In Gilquist, which was summarily affirmed by the
Eighth Circuit (and is not really precedential, see Roth v. Sawyer-Cleator Lumber Co., 61 F.3d
599, 603 (8th Cir. 1995)), the district court held that plaintiffs who had received lump-sum
distributions of benefits from an employee stock ownership plan were no longer participants in
the plan. Gilquist, 675 F. Supp. at 1171. The district court based its decision on its
determination that, if the plaintiffs prevailed in proving a breach of fiduciary duty, any recovery
they obtained would be damages rather than benefits under the plan. Id. As explained
above, though, Harzewski explicitly (and, in this Courts view, convincingly) rejected this
distinction between benefits and damages, and LaRue relied on Harzewskis analysis to find
that the plaintiffs claims were not moot. To the extent that Gilquist is inconsistent with LaRue,
therefore, it has been overruled.
behalf of a plan.5 Some courts have agreed with MoneyGrams interpretation of LaRue. See,
e.g., Vaughn v. Bay Envtl. Mgmt., Inc., 544 F.3d 1008, 1014 n.9 (9th Cir. 2008) (LaRue does
not control the outcome of this case because it did not address the meaning of participant or the
distinction between benefits and damages); Gipson v. Wells Fargo & Co., No. 08-4546, 2009
WL 702004, at *3 (D. Minn. Mar. 13, 2009) (This Court is not convinced that the LaRue
footnote means that all former plan participants have standing to bring claims for a breach of
fiduciary duty under ERISA.).
The Court respectfully disagrees with these courts and holds that, under LaRue, the
plaintiffs in this case have standing. The defendants motion to dismiss in LaRue rested on the
argument that, after cashing out, the plaintiff had no legally cognizable interest in the outcome
of the case. Motion to Dismiss the Writ at 2, LaRue v. DeWolff, Boberg & Assocs., Inc., 128 S.
Ct. 1020 (2008) (No. 06-856), 2007 WL 3231419. The defendants were necessarily arguing that
the plaintiff did not have a colorable claim for vested benefits, because a plaintiff with a
colorable claim for vested benefits obviously has a legally cognizable interest in the outcome of
the case. And because the plaintiff did not have a colorable claim for benefits, the defendants
argued, the plaintiff was no longer a participant entitled to maintain a claim . . . . Id. at 4.
The Supreme Court rejected this argument, unambiguously holding that the case is not
moot. LaRue, 128 S. Ct. at 1026 n.6. The Court explained its holding in two sentences: A
plan participant, as defined by 3(7) of ERISA, 29 U.S.C. 1002(7), may include a former
employee with a colorable claim for benefits. See, e.g., Harzewski v. Guidant Corp., 489 F.3d
799 (C.A.7 2007). LaRue, 128 S. Ct. at 1026 n.6. Plainly, then, the Court held that the case
was not moot because, as a former employee with a colorable claim for benefits, the plaintiff in
LaRue did indeed have a legally cognizable interest in the outcome of the case, and was indeed a
plan participant for purposes of ERISA.
In light of what the defendants argued in asking that LaRue be dismissed as moot, in light
of the Supreme Courts unambiguous holding that the case is not moot, in light of the Supreme
Courts explanation of its holding, and in light of the Supreme Courts citation of Harzewski (and
only Harzewski) in support of its holding, this Court cannot agree with MoneyGram that LaRue
somehow left open the question of whether the cashed-out plaintiff was a participant for
purposes of 1132(a)(2) and (3).
MoneyGram also suggests that LaRue turned on the fact that, at the time the plaintiff filed
suit, he had not yet cashed out of his retirement plan. But LaRue did not even mention that fact.
Moreover, LaRue cited Harzewski, in which the Seventh Circuit pointedly declined to rely on the
fact that the plaintiffs had not cashed out until after filing their initial complaint. More
importantly, the fact that the plaintiff in LaRue had standing at the time his suit was filed does
not, as MoneyGram implies, suggest that his case could not later be dismissed as moot. The
latter in no way follows from the former.
The bottom line is that the defendants in LaRue argued that, at the moment the plaintiff
cashed out, the plaintiff no longer had a colorable claim for benefits or any other legally
cognizable interest in the outcome of the case. The Supreme Court rejected the argument,
holding that, because the plaintiff continued to have a colorable claim for benefits even after
cashing out, the case was not moot, and the plaintiff was a participant for purposes of
1132(a)(2) and (3). That holding controls the outcome in this case and compels a conclusion
that, like the plaintiffs in LaRue and Harzewski, Morrison and Arguello are participants with
colorable claims to vested benefits.
In a final effort to get out from under LaRue, MoneyGram contends that a Supreme Court
decision on a motion to dismiss as moot is extraneous to the issues that the Supreme Court
accepted for review and therefore is not binding on lower courts. Not surprisingly, MoneyGram
cites no authority that supports its contention that a holding of the Supreme Court regarding
mootness binds the lower federal courts only if the Supreme Court issued a writ of certiorari to
address the issue of mootness. In Thompson v. Paasche, 950 F.2d 306 (6th Cir. 1991) a case
cited by MoneyGram the Sixth Circuit declined to give precedential weight to City of
Springfield v. Kibbe, 480 U.S. 257 (1987). In City of Springfield, the Supreme Court dismissed a
writ of certiorari as improvidently granted because the petitioner had failed to preserve an issue.
Putting aside the fact that neither City of Springfield nor Thompson had anything to do with
mootness, a decision to D.I.G. a case that is, to dismiss the writ of certiorari as
improvidently granted is a decision not to render a decision. The fact that Thompson chose
not to give precedential weight to a decision not to decide in no way suggests that a lower court
is free to avoid giving precedential weight to a decision on mootness or any other issue.
The other case that MoneyGram cites Martinez v. City of Oxnard, 270 F.3d 852 (9th
Cir. 2001), revd sub nom. Chavez v. Martinez, 538 U.S. 760 (2003) merely states that lower
courts are not bound by dicta in Supreme Court opinions. Id. at 857 n.3. But what the Court said
about mootness in LaRue was not dicta. It was necessary to the Courts decision on the merits,
because if the case had been moot, the Court would not have had the power to reach the merits.
Iron Arrow Honor Socy v. Heckler, 464 U.S. 67, 70 (1983) (per curiam) (Federal courts lack
jurisdiction to decide moot cases because their constitutional authority extends only to actual
cases or controversies.). Thus the Supreme Courts decision about mootness was a holding a
holding that lower federal courts are not free to ignore. See Seminole Tribe of Fla. v. Florida,
517 U.S. 44, 67 (1996) (When an opinion issues for the Court, it is not only the result but also
those portions of the opinion necessary to that result by which we are bound.).
In sum, this Court holds that, under LaRue, Morrison and Arguello both have a colorable
claim for vested benefits and therefore are participants in the Plan with the right to bring suit
against MoneyGram under 1132(a)(2) and (3). MoneyGrams motion to dismiss for lack of
subject-matter jurisdiction is denied.
B. Rule 12(b)(6)
MoneyGram argues that, even if plaintiffs have the right to sue under 1132(a)(2) and
(3), their claims must be dismissed on the merits under Fed. R. Civ. P. 12(b)(6). In reviewing a
Rule 12(b)(6) motion, a court accepts as true all factual allegations in the complaint and draws all
reasonable inferences in the plaintiffs favor. Aten v. Scottsdale Ins. Co., 511 F.3d 818, 820 (8th
Cir. 2008); Maki v. Allete, Inc., 383 F.3d 740, 742 (8th Cir. 2004); Mattes v. ABC Plastics, Inc.,
323 F.3d 695, 697 (8th Cir. 2003). Although the factual allegations in the complaint need not be
detailed, they must be sufficient to raise a right to relief above the speculative level . . . . Bell
Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007).
Ordinarily, if the parties present, and the court considers, matters outside of the pleadings,
a Rule 12(b)(6) motion must be treated as a motion for summary judgment. Fed. R. Civ.
P. 12(d). But the court may consider materials that are necessarily embraced by the complaint
(such as the Plan, the SPD, and the Trust), as well as any exhibits attached to the complaint,
without converting the motion into one for summary judgment. Mattes, 323 F.3d at 697 n.4.
1. The Scope of a Fiduciarys Duties under ERISA
The fiduciaries of an ERISA plan have responsibilities to the participants and
beneficiaries of the plan that are similar to the responsibilities imposed on fiduciaries under the
common law of trusts. See Pegram v. Herdrich, 530 U.S. 211, 224 (2000). But ERISA differs
from trust law in one important respect: Unlike the common law of trusts, ERISA permits
fiduciaries to take actions adverse to beneficiaries, as long as the fiduciary is not acting in his
capacity as a fiduciary when he takes adverse action. Id. at 225-26; see also 1002(21)(A)
(providing that a person is a fiduciary to the extent that he exercises certain types of authority
or control over the plan or its assets). To establish that a particular action was a breach of
fiduciary duty, then, it is not sufficient to prove that the person who took the action was a plan
fiduciary. The plaintiff must also prove that, at the time that the person took the action, he was
acting as a plan fiduciary. Pegram, 530 U.S. at 226; see also Hughes Aircraft Co. v. Jacobson,
525 U.S. 432, 444-45 (1999) (a plan sponsors decision to amend a plan is not a fiduciary act and
so cannot constitute a breach of fiduciary duty); Lockheed Corp. v. Spink, 517 U.S. 882, 890
(1996) (same).
Under ERISA, a plan fiduciarys responsibilities include the following:
(1) Subject to sections 1103(c) and (d), 1342, and 1344 of this title,
a fiduciary shall discharge his duties with respect to a plan solely in
the interest of the participants and beneficiaries and
(A) for the exclusive purpose of:
(i) providing benefits to participants and their
beneficiaries; and
(ii) defraying reasonable expenses of administering
the plan;
(B) with the care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent man acting in
a like capacity and familiar with such matters would use in
the conduct of an enterprise of a like character and with like
(C) by diversifying the investments of the plan so as to
minimize the risk of large losses, unless under the
circumstances it is clearly prudent not to do so; and
(D) in accordance with the documents and instruments
governing the plan insofar as such documents and
instruments are consistent with the provisions of this
subchapter and subchapter III of this chapter.
1104(a)(1). The duties set forth in 1104(a) are commonly referred to as the duty of prudence,
the duty of loyalty, the duty to diversify, and the duty to follow the terms of the plan. See Brown
v. Am. Life Holdings, Inc., 190 F.3d 856, 859 (8th Cir. 1999); Craig C. Martin et al., Whats Up
on Stock-Drops? Moench Revisited, 39 J. Marshall L. Rev. 605, 608-09 (2006).
Not all of these duties are imposed on every benefit plan governed by ERISA. In
particular, a defined-contribution plan known as an eligible individual account plan (or
EIAP) such as the Plan that is the subject of this litigation is exempt from several of the
requirements that ERISA generally imposes on benefit plans. See 1107(d)(3) (defining EIAPs).
For example, EIAPs are not subject to the 10% cap on investments in employer stock,
1107(b)(1), and ERISAs prohibitions against dealing with a party in interest and self-dealing
do not apply to an EIAPs acquisition or sale of employer stock, 1108(e). In addition and
critically for purposes of this case an EIAPs acquisition or holding of employer stock cannot
be the basis of a claim that a fiduciary has violated the duty to diversify: In the case of an
eligible individual account plan . . . the diversification requirement of paragraph (1)(C) and the
prudence requirement (only to the extent that it requires diversification) of paragraph (1)(B) is
not violated by acquisition or holding of qualifying employer real property or qualifying
employer securities . . . . 1104(a)(2). These exemptions are necessary to enable EIAPs to
fulfill one of their recognized purposes: to foster employee investment in employer securities.
See Edgar v. Avaya, Inc., 503 F.3d 340, 347 (3d Cir. 2007). These exemptions also pose
formidable challenges to anyone who seeks to challenge the decision of the fiduciaries of an
EIAP to invest in employer stock.
The counts in the amended complaint 6 contain overlapping claims. For example, in
addition to alleging that MoneyGram breached its duties by investing Plan assets in MoneyGram
stock, Count I also alleges that MoneyGram breached its duties by failing to disclose material
information, and Count I alleges co-fiduciary liability. But plaintiffs have pleaded separate
claims of misrepresentation, failure to disclose, and co-fiduciary liability that mirror portions of
Count I. For simplicitys sake, the Court will discuss each type of claim separately in connection
with the count in which it is mainly alleged.
The Court notes that plaintiffs allege in Count I that MoneyGrams investment of Plan
assets in MoneyGram stock breached the duty of loyalty as well as the duty of prudence. But
plaintiffs breach-of-loyalty claim boils down to an allegation that defendants made imprudent
investments. As the allegation of breach of the duty of loyalty adds nothing of substance to the
allegation of breach of the duty of prudence, the Court will discuss only the latter allegation.
2. Count I
In Count I of the amended complaint, plaintiffs allege that defendants breached their duty
of prudence by investing Plan assets in MoneyGram stock, which plaintiffs allege was an
imprudent investment.6 MoneyGram argues that Count I fails to state a claim because, pursuant
to the documents governing the Plan, MoneyGram was legally obligated to invest all employer
contributions in MoneyGram stock. According to MoneyGram, that fact alone requires the
dismissal of Count I. Even if it does not, MoneyGram argues that defendants are at least entitled
to a presumption that the investments in MoneyGram stock were prudent, and plaintiffs cannot
overcome this presumption and thus cannot state a claim unless they allege facts
demonstrating that MoneyGrams continued viability as a company was in jeopardy. Because
plaintiffs have failed to allege such facts, MoneyGram contends, Count I must be dismissed.
a. Whether the Plan Requires Investment in the Employer Stock Fund
The first question that must be resolved is whether, as MoneyGram alleges, it simply had
no choice but to invest its employer contributions in MoneyGram stock. MoneyGram points to
Article 7 of the Plan, which states, in relevant part:
7.2 Employee Selected Investment Options, Investment Funds.
(a) Each Participant shall designate the Investment Fund(s),
established pursuant to paragraph (b) below, to which
amounts allocated to the Participants Accounts, (including
his or her MoneyGram Match Account, Prior Company
Match Account and Profit Sharing Account) are to be
(b) The Committee shall direct the Trustee to establish three
(3) or more Investment Funds. The Committee also may
direct the Trustee to change the number and type of
Investment Funds made available under the Plan from time
to time, without the necessity of Board action or Plan
(c) Three of the Investment Funds under the Plan are the
FINOVA Stock Fund, the Viad Stock Fund, and the
Employer Stock Fund consisting, respectively, of FINOVA
Stock, Viad Stock, and Employer Stock. . . .
7.3 Investment Elections for Future Contributions.
(a) . . . . Amounts allocated to a Participants
MoneyGram Match Account and Profit
Sharing Account are initially invested in the
Employer Stock Fund. Such amounts
remain invested in the Employer Stock Fund
until a Participant transfers all or a portion
(in no less than one percent (1%)
increments) of his MoneyGram Match
Account and Profit Sharing Account to any
of the then available Investment Funds.
MoneyGram argues that the language of 7.3(a) plainly requires that employer contributions be
invested in the Employer Stock Fund, which, MoneyGram points out, must consist solely of
MoneyGram common stock. See Plan 2.1(dd), (ee) (defining Employer Stock to mean
MoneyGram common stock and Employer Stock Fund to mean the Investment Fund
established pursuant to section 7.2 which invests in Employer Stock); Plan 2.1(rr), (ss)
(defining MoneyGram Match to mean an employer contribution made pursuant to 4.1(b) of
the Plan and MoneyGram Match Account to be the account maintained to record a
participants share of MoneyGram Match); Plan 2.1(ddd), (eee) (defining Profit Sharing
Contribution to mean an employer contribution made pursuant to 4.1(c) of the Plan and a
Profit Sharing Account to be the account maintained to record a participants share of Profit
Sharing Contributions).
MoneyGram is correct that, when read in isolation, 7.3(a) does indeed seem to require
that employer contributions be invested in the Employer Stock Fund. But when 7.3(a) is read
in the context of the Plan as a whole, its meaning is less clear. Under 7.2(b), [t]he
Committee . . . may direct the Trustee to change the number and type of Investment Funds made
available under the Plan from time to time, without the necessity of Board action or Plan
Amendment. Plan 7.2(b). Given that the Employer Stock Fund referenced in 7.3(a) is
defined as an Investment Fund under 7.2(c), the Committee arguably had the authority to
discontinue the Employer Stock Fund altogether under 7.2(b).
Indeed, as plaintiffs point out, there is evidence that MoneyGram thought that the
language of 7.2(b) granted exactly that power to the Committee. In January 2008, MoneyGram
amended 7.2(c) of the Plan to read, in relevant part:
Notwithstanding the Committees authority under section 7.2(b) to
establish, change or remove Investment Funds, the Plan shall
maintain one Investment Fund that is invested exclusively in
Employer Stock (the Employer Stock Fund) . . . .
Second Swanson Decl. Ex. E 1. MoneyGram would not have amended 7.2(c) to forbid the
Committee from discontinuing the Employer Stock Fund unless MoneyGram believed that the
Committee had the authority to discontinue the Employer Stock Fund or at least that 7.2(b)
was ambiguous on the question.
The fact that MoneyGram apparently believed that the pre-amendment version of the Plan
granted the Committee the power to discontinue the Employer Stock Fund is particularly
significant because the Plan grants the Committee the power to interpret the Plan and resolve any
ambiguities in it. See Plan 8.10(b), 8.12. This provision is apparently a delegation of
MoneyGrams discretion to interpret the Plan. See SPD at 1. At the very least, the preamendment
version of 7 of the Plan which was the version in effect during the time period
relevant to this case was ambiguous with respect to the extent of the Committees power to
discontinue the Employer Stock Fund. This ambiguity cannot be resolved on a motion to
dismiss, especially given that determining the meaning of the Plan language may rest in part on
how the Committee (acting on behalf of MoneyGram) interpreted the Plan. Cf. Moench v.
Robertson, 62 F.3d 553, 566-67 (3d Cir. 1995) (applying the five-factor test articulated in Finley
v. Special Agents Mutual Benefit Association, Inc., 957 F.2d 617 (8th Cir. 1992) to review a plan
committees claim that the plan was required to invest exclusively in employer stock).
Aside from the ambiguity in 7 of the Plan, there is language in another section of the
Plan that supports plaintiffs argument that employer contributions were not required to be
invested in the Employer Stock Fund. Under 8.10(o) of the Plan, the Committee has the
discretion [t]emporarily to delay, suspend, or prohibit . . . Investment Elections, changes in
Investment Elections, transfer of assets, or any other transaction under the Plan for any purpose
that the Committee, in its sole discretion, deems lawful (e.g. a fiduciary concern . . .). Plan
8.10(o) (emphasis added). This broad language can easily be read to permit the Committee to
suspend or prohibit further investments in the Employer Stock Fund.
Finally, plaintiffs point to language in the Trust which is incorporated into the Plan,
see Plan 1.1 that imposes on MoneyGram the duty of [d]etermining the suitability of and
selecting every investment offered as an option under the Plan, including but not limited to
Qualifying Employer Securities . . . . Trust 4.1(g). MoneyGram argues that the purpose of
4.1(g) is to make clear the division of authority between MoneyGram and the Trustee.
Specifically, the provision makes clear that the Trustee has no hand in selecting the investments
offered in the Plan. Rather, that function belongs to MoneyGram acting in its capacity as the
Plan sponsor, and not in its capacity as a Plan fiduciary.
MoneyGrams interpretation, however, is undermined by the beginning of 4.1, which
states that the duties defined in 4.1 may be carried out by MoneyGram acting through the
named fiduciary. The fact that MoneyGram could delegate its responsibility for determining the
suitability of Plan investments to a fiduciary suggests that this function may have been a
fiduciary one. Cf. DiFelice v. U.S. Airways, Inc., 497 F.3d 410, 418 n.3 (4th Cir. 2007)
([L]imiting or designating investment options which are intended to constitute all or part of the
investment universe of an ERISA 404(c) plan is a fiduciary function . . . . [A]lthough
section 404(c) does limit a fiduciarys liability for losses that occur when participants make poor
choices . . . it does not insulate a fiduciary from liability for assembling an imprudent menu in the
first instance. (citations and quotations omitted)).
Contrary to MoneyGrams contentions, then, the Plan did not clearly require MoneyGram
to invest all employer contributions in the Employer Stock Fund. In fact, the provisions of the
7At the same time, if MoneyGram ultimately prevails on this issue, plaintiffs will not be
permitted to argue that MoneyGram had a fiduciary duty to amend the Plan. The law is quite
clear that the decision to amend an ERISA plan is not a fiduciary one, even if the plan is one to
which employees contribute. Hughes Aircraft Co., 525 U.S. at 444-45.
Plan identified above point to the opposite conclusion. The Plan is ambiguous, making it
impossible for the Court to determine the meaning of the Plan in response to a Rule 12(b)(6)
motion. Thus, insofar as MoneyGrams motion to dismiss relies on the contention that it had no
alternative but to invest employer contributions in the Employer Stock Fund, MoneyGrams
motion is denied.
To be clear: The Court is holding only that the Plan is ambiguous. It is possible that,
after discovery is concluded, MoneyGram will be able to persuade the Court on motion for
summary judgment or at trial that MoneyGram was indeed required to invest all employer
contributions in the Employer Stock Fund. If MoneyGram ultimately prevails on that issue,
though, MoneyGram will not necessarily escape liability under Count I.7 ERISA requires
fiduciaries to comply with the terms of plan documents, as MoneyGram stresses. But this duty is
not unqualified; it applies only insofar as such documents and instruments are consistent with
the provisions of subchapters I and III of ERISA, which include the other fiduciary duties
imposed under 1104. See 1104(a)(1)(D); In re Ford Motor Co. ERISA Litig., 590 F. Supp. 2d
883, 889-90 (E.D. Mich. 2008). The Court leaves this issue for another day.
b. The Presumption of Prudence
The parties next dispute whether MoneyGrams decision to continue investing employer
contributions in the Employer Stock Fund is entitled to a presumption of prudence and, assuming
that such a presumption applies, whether plaintiffs allegations are sufficient to overcome it.
A presumption of prudence was first applied to a fiduciarys decision to continue
investing in employer stock in the landmark case of Moench v. Robertson, 62 F.3d 553 (3d Cir.
1995). In Moench, a former participant in an employee stock ownership plan (ESOP) sued the
plans fiduciaries over their decision to keep the plans assets invested almost entirely in
employer stock during a period in which that stock lost nearly 99% of its value. Id. at 557, 559-
60. Moench recognized that ESOPs are, by definition, designed to invest primarily in employer
stock. Id. at 568. At the same time, ESOP fiduciaries must act in accordance with the duties of
prudence and loyalty. Id. at 569. To balance these potentially competing considerations, Moench
applied a presumption of prudence to the fiduciaries decision to remain invested in employer
stock. Id. at 571. To overcome the presumption, a plaintiff must show that the fiduciary abused
its discretion. Id.
Plaintiffs argue that Moench is inapplicable because it concerned an ESOP, whereas the
plan at issue in this case is an EIAP. See In re Westar Energy, Inc. ERISA Litig., No. 03-4032,
2005 WL 2403832, at *18-19 (D. Kan. Sept. 29, 2005) (declining to apply a presumption of
prudence to a non-ESOP EIAP). But an ESOP is just one type of EIAP, and all EIAPs are
designed to foster investment in employer stock. Many of the distinguishing features of ESOPs
on which Moench relied such as the exemption from the duty to diversify, the exemption from
the 10% cap on investments in employer stock, and the limited exemption from the prohibition
on self-dealing and dealing with parties in interest apply to all EIAPs, not just ESOPs. For
that reason, the Third Circuit recently extended the Moench presumption to all EIAPs. See
Edgar v. Avaya, Inc., 503 F.3d 340, 347 (3d Cir. 2007).
8Moench, and a number of cases following it, suggest that fiduciaries of EIAPs may be
required to diversify if that is in the best interest of plan participants. Moench, 62 F.3d at 569-70,
571; see also Summers v. State Street Bank & Trust Co., 453 F.3d 404, 410-11 (7th Cir. 2006);
Steinman v. Hicks, 352 F.3d 1101, 1106 (7th Cir. 2003); Kuper v. Iovenko, 66 F.3d 1447, 1457-
59 (6th Cir. 1995). But this position appears inconsistent with the exemption from the duty to
diversify in 1104(a)(2). How can fiduciaries of EIAPs be held liable for failing to diversify
that is, for investing too much in employer stock, and not enough in other assets when ERISA
explicitly provides that they do not have a duty to diversify?
It is true that ESOPs, unlike EIAPs in general, are designed to invest primarily in
employer stock. 1107(d)(6)(A). But it is difficult to know why that would justify applying the
Moench presumption to ESOPs, but not to other EIAPs. ERISA expressly exempts all EIAPs
ESOPs and non-ESOPs alike from the duty to diversify. In other words, a plaintiff cannot
seek to hold a fiduciary liable for the extent to which any EIAP invests in employer stock. Such a
claim would challenge the mix of assets held by an EIAP, and thus would be tantamount to a
claim that the fiduciary did not diversify or diversify sufficiently. To get around
MoneyGrams exemption from the duty to diversify, plaintiffs must allege that MoneyGram
stock was such an imprudent investment that no Plan assets not one cent should have been
invested in it.8 Such an allegation that is, an allegation that a fiduciary ought to have divested
an EIAP of all employer stock strikes at the policy considerations underlying the creation of
an EIAP, whether the EIAP is an ESOP or not. The Court therefore agrees with the Third Circuit
that the Moench presumption should extend to all EIAPs, including the Plan.
The next question, then, is what type of allegations are necessary to overcome the
Moench presumption. MoneyGram argues that, to overcome the presumption of prudence, a
plaintiff must allege that the employer was on the verge of collapse. Plaintiffs have a threefold
response: first, plaintiffs argue that the presumption is not applicable at the pleading stage;
second, plaintiffs argue that they need not allege that the employer is on the verge of collapse, but
only that a prudent fiduciary would have made a different investment decision; and finally,
plaintiffs argue that they have met the burden of alleging that MoneyGram was on the verge of
Plaintiffs first argument is easily overcome. Under Bell Atlantic, plaintiffs must allege
facts sufficient to raise a right to relief above the speculative level . . . . 127 S. Ct. at 1964-65.
The presumption of prudence is a legal presumption that limits the circumstances under which a
fiduciary of an EIAP can be found liable. In other words, the presumption defines the elements
of a plaintiffs substantive cause of action. To say that the presumption of prudence applies at
the pleading stage is just another way of saying that plaintiffs must allege sufficient facts to
demonstrate that they have a non-speculative claim that the fiduciary abused its discretion (or
otherwise acted in a manner that would overcome the Moench presumption). If plaintiffs plead
facts demonstrating that there was no abuse of discretion, or if they fail to plead facts that would
tend to establish an abuse of discretion, then dismissal under Rule 12(b)(6) is warranted. Cf.
Edgar, 503 F.3d at 342 (applying the presumption on appeal from the grant of a motion to
As for plaintiffs second contention that the presumption can be overcome merely by
showing that a prudent fiduciary would have made a different investment decision such a
standard would render the presumption meaningless. Cf. Moench, 62 F.3d at 570 (noting that
subjecting a fiduciarys decision to invest in employer stock to strict judicial scrutiny would risk
transforming ESOPs into ordinary pension benefit plans). Under plaintiffs standard, fiduciaries
would be expected to maximize the EIAPs investment returns without regard to the special
9Moench mistakenly cites comment g, which does not contain any of the quoted language.
Comment w to 227 includes all of the quoted language, including the bracketed insertion.
purposes of EIAPs, yet at the same time would be subject to the risk of liability for deviating
from the terms of the EIAP. Moench created the presumption of prudence to avoid this very
dilemma. Under Moench, it is not enough to show that a prudent fiduciary would have made a
different investment decision. Instead, plaintiffs must introduce evidence that owing to
circumstances not known to the settlor and not anticipated by him [the making of such
investment] would defeat or substantially impair the accomplishment of the purposes of the
trust. Moench, 62 F.3d at 571 (quoting Restatement (Second) of Trusts 227 cmt. w (1959))9;
see also Kirschbaum v. Reliant Energy, Inc., 526 F.3d 243, 256 (5th Cir. 2008) (there ought to
be persuasive and analytically rigorous facts demonstrating that reasonable fiduciaries would
have considered themselves bound to divest).
Whether plaintiffs must allege that the employer was on the verge of collapse to
overcome the Moench presumption is a closer question. Although there is language in some
cases suggesting that such an allegation is necessary, recent decisions have stopped short of
requiring it. In other words, although everyone agrees that proving that the employer was on the
verge of collapse is one way to overcome the presumption, most courts seem to hold that it is not
the only way. See, e.g., Kirschbaum, 526 F.3d at 256 (We do not hold that the Moench
presumption applies only in the case of investments in stock of a company that is about to
collapse.); Edgar, 503 F.3d at 349 n.13 (We do not interpret Moench as requiring a company to
be on the brink of bankruptcy before a fiduciary is required to divest a plan of employer
securities.). But see DiFelice, 497 F.3d at 420-21, 425 (stating that the Employees cannot
succeed in this lawsuit simply by demonstrating that U.S. Airways offered the Company Fund
during a time of grave uncertainty for the company and affirming judgment in favor of the
fiduciaries on the basis of the district courts finding that the fiduciaries reasonably believed that
the company would be able to avoid bankruptcy).
At the same time, it is clear that the Moench presumption is not overcome simply by
pleading and proving that the price of the employers stock dropped steeply, even when the drop
was based on the disclosure of some type of misconduct. See Kirschbaum, 526 F.3d at 255 (40%
drop in stock price after disclosure of improper round-trip energy trading was insufficient to
overcome presumption); Pugh v. Tribune Co., 521 F.3d 686, 701-02 (7th Cir. 2008) (suggesting
that disclosure of circulation fraud, which ultimately caused a charge against earnings of less than
2% of employers yearly revenues, was insufficient to state a claim); Wright v. Oregon
Metallurgical Corp., 360 F.3d 1090, 1096, 1098-99 (9th Cir. 2004) (72% drop in stock price
after merger was insufficient to state a claim in light of the fact that the employer was profitable
and paying substantial dividends).
The case law is thus helpful in defining what is always sufficient to overcome the Moench
presumption (an employer on the verge of collapse) and what is never sufficient, at least by itself,
to overcome the presumption (a drop in the price of the employer stock). But, between these
two extremes, what exactly must a plaintiff plead and prove to overcome the Moench
There may not be a good answer to this question, but this Court finds persuasive the
recent opinion of Judge Stephen Murphy in In re Ford Motor Co. ERISA Litigation, 590
F. Supp. 2d 883 (E.D. Mich. 2008). Judge Murphy wrote:
. . . ERISA excuses [EIAP] fiduciaries from the prudence
requirement (only to the extent that it requires diversification).
29 U.S.C. 1104(a)(2). This is necessary because, as many courts
have noted, it is almost always imprudently risky to invest most or
all of a funds assets in a single stock.
But the statutory language plainly retains the duty of
prudence except insofar as it would dictate diversification. As a
result, this Court finds that the [Moench] presumption of prudence
means that 29 U.S.C. 1104(a)(1)-(2) requires fiduciaries to divest
their plans of company stock when holding it becomes so risky
that is, so imprudent that the problem could not be fixed by
diversifying into other assets. In other words, with respect to
EIAPs, an abuse of discretion under [Moench] begins (and the
presumption of prudence ends) at the point at which company
stock becomes so risky that no prudent fiduciary, reasonably aware
of the needs and risk tolerance of the plans beneficiaries, would
invest any plan assets in it, regardless of what other stocks were
also in that plans portfolio.
Id. at 892-93 (footnote and citations omitted).
As Judge Murphy explained, this excessive-risk standard comports with the statutory
exemption from the diversification requirement. The Moench presumption may not be overcome
by proof that the EIAP fiduciary invested too heavily in employer stock, but only by proof that
the fiduciary should not have invested at all in employer stock. At the same time, this standard
gives effect to the regulations implementing ERISA, which require a fiduciary to tak[e] into
consideration the risk of loss and the opportunity for gain (or other return) associated with the
investment or investment course of action. Id. at 891 (quoting 29 C.F.R. 2550.404a-
1(b)(2)(i)). As Judge Murphy conceded, the excessive-risk standard does not provide a brightline
rule for fiduciaries, but given that the statutory prudence standard itself provides no brightline
rules, it would be inconsistent with ERISA to create one. Id. at 892. Alleging that the
employer was on the verge of collapse is certainly one way to show that the employers stock was
excessively risky, but it would be inconsistent with ERISA to hold, as a matter of law, that such
an allegation is the only way to state a claim. Id. at 891-92.
The Court finds this analysis persuasive. Applying the excessive-risk standard as
described in Ford Motor Co., the Court holds that plaintiffs have pleaded sufficient facts to
survive a motion to dismiss. Plaintiffs allege that MoneyGram was suffering enormous
investment losses throughout the class period approximately .6 billion, at last count.
Plaintiffs further allege that these losses were due to MoneyGrams pursuit of an extraordinarily
speculative and unnecessary investment strategy that involved borrowing money and investing it
in risky mortgage-backed securities. This strategy, plaintiffs allege, put at least two-thirds of
MoneyGrams investment portfolio at risk and was already beginning to fail at the inception of
the Plan, but it was not disclosed to the market until years later. Under these conditions,
plaintiffs allege, MoneyGrams stock price was poised to collapse, and ultimately, as of
March 2008, it had lost 92% of its value over the preceding year. After MoneyGrams enormous
losses were finally disclosed to the market, the SEC initiated an investigation into MoneyGrams
accounting practices, and MoneyGram was forced to seek a large infusion of outside capital.
In the Courts view, these allegations, taken as a whole, sufficiently allege that at some
point [MoneyGram] stock [became] so risky that no prudent fiduciary, reasonably aware of the
needs and risk tolerance of the plans beneficiaries, would [have] invest[ed] any plan assets in it,
regardless of what other stocks were also in th[e] plans portfolio. Ford Motor Co., 590
F. Supp.2d at 893. Indeed, these allegations are similar to those in Moench itself, in which the
employers stock lost 98% of its value over a period of two years, there were allegations of
serious mismanagement, regulatory authorities had expressed concerns about the health of the
employers subsidiaries, and the employer ultimately went out of business. Moench, 62 F.3d at
557. Although plaintiffs allegations do not present quite as dire a picture as did the facts in
Moench, the Court believes they are sufficient to overcome the Moench presumption and allow
plaintiffs to pursue a claim for breach of the duty of prudence. MoneyGrams motion to dismiss
is therefore denied as to Count I.
3. Count II
The duty of loyalty includes the obligation to deal fairly and honestly with all plan
members and requires an ERISA fiduciary to communicate any material facts which could
adversely affect a plan members interests. Shea v. Esensten, 107 F.3d 625, 628 (8th Cir. 1997).
In Count II, plaintiffs allege that MoneyGram breached its duty of loyalty by (1) disseminating to
Plan participants inaccurate information that was relevant to evaluating MoneyGrams financial
condition and (2) failing to disclose information about its business practices and investment
strategy that was necessary for Plan participants to make informed investment decisions.
MoneyGram makes a number of arguments in support of dismissal of Count II, which the Court
considers in turn.
a. Fiduciary Communications
As noted earlier, to prevail on a claim for a breach of fiduciary duty, a plaintiff must
prove not only that the challenged action was taken by a fiduciary, but that the fiduciary was
acting in his fiduciary capacity when he took the challenged action. Plaintiffs misrepresentation
claim is based largely on information contained in MoneyGrams SEC filings, which, plaintiffs
allege, were incorporated into Plan documents and disseminated to Plan participants.
MoneyGram argues that it never incorporated its SEC filings into any Plan documents and that
disclosures mandated by the securities laws are not fiduciary communications.
Although there are decisions on both sides of the issue, the Court agrees with the
decisions that have held that SEC filings are made in a companys corporate capacity and not
in its capacity as an ERISA fiduciary and therefore do not, without more, constitute fiduciary
communications. See, e.g., In re WorldCom, Inc., 263 F. Supp. 2d 745, 760 (S.D.N.Y. 2003)
(mere act of signing and filing SEC disclosures is not a fiduciary act). If the contrary were true,
any corporate officer who signed an SEC filing would become a fiduciary of the companys
ERISA plan (assuming that the plan invested in employer securities). Such an improbable result
seems at odds with the general rule that a persons status as a corporate officer does not, by itself,
transform that person into a fiduciary of the corporations ERISA plan. 29 C.F.R. 2509.75-8 at
This is not a securities-fraud action. If, at the end of the day, plaintiffs are able to prove
nothing more than that MoneyGrams SEC filings were inaccurate, and that the inaccurate
information was made available to plaintiffs in the same manner that it was made available to the
rest of the investing public, then the Court will likely dismiss the breach-of-loyalty claim.
But plaintiffs allege something more. Specifically, plaintiffs allege that MoneyGram
incorporated its SEC filings into the SPD and into Plan prospectuses, and then, acting in its
capacity as an ERISA fiduciary, MoneyGram distributed the SPD and Plan prospectuses to
participants. Am. Compl. 46. In other words, plaintiffs allege that MoneyGrams SEC filings
became fiduciary communications by virtue of being incorporated into the SPD and Plan
10The language to which plaintiffs point merely states that Plan participants will be given
information about the various investment funds available under the Plan. See, e.g., SPD at 8.
While this language may be relevant in proving that MoneyGram acted as a Plan fiduciary
whenever it disseminated information about the investment funds to Plan participants, this
language does not itself incorporate any information into the SPD. Similarly, plaintiffs highlight
language in the Plan that requires MoneyGram to comply with any applicable securities laws, but
that language also does not incorporate securities filings or anything else into the Plan.
There is little in the SPD to support plaintiffs claim,10 but this matter is before the Court
on a Rule 12(b)(6) motion. Such a motion tests the sufficiency of allegations, not the sufficiency
of evidence, and plaintiffs have alleged that MoneyGram distributed SEC filings to Plan
participants in its capacity as an ERISA fiduciary. That allegation is sufficient to state a claim.
Cf. Varity Corp. v. Howe, 516 U.S. 489, 505 (1996) (company acted as a fiduciary when it
intentionally connected statements about a subsidiarys financial health to statements about the
future of benefits to be paid by that subsidiary); In re WorldCom, 263 F. Supp. 2d at 765-67
(although mere act of signing and filing SEC-disclosures was not a fiduciary act, plaintiffs stated
a claim by alleging that defendants disseminated such disclosures to plan participants in
MoneyGram argues that, because the Employer Stock Fund was closed to all but
employer contributions, MoneyGram had no legal duty to disseminate prospectuses or similar
SEC-mandated disclosures to Plan participants. That may be true, but the fact that MoneyGram
was not required to disseminate such documents to Plan participants does not mean that
MoneyGram did not voluntarily do so, as plaintiffs have alleged.
Obviously, the Court does not mean to suggest that plaintiffs will recover on their breachof-
loyalty claim if they prove only that, at some point, MoneyGram distributed a prospectus to
11It is not clear whether a claim of negligent misrepresentation is sufficient to state a
claim for breach of the duty of loyalty. See Christensen v. Qwest Pension Plan, 462 F.3d 913,
917 (8th Cir. 2006) (affirming judgment in favor of plan administrators because there was no
evidence that Plan administrators . . . knowingly provided false or materially overstated estimates
of his pension benefit). MoneyGram does not argue, however, that an allegation of negligent
misrepresentation by a fiduciary is insufficient to state a claim for breach of the duty of loyalty
(although MoneyGram argues that it has no affirmative duty to disclose information about its
investment portfolio unless it had knowledge of some underlying fraud, see Reply 9-10 [Docket
No. 25]). Moreover, as discussed below, the Eighth Circuit has said that a fiduciary has a duty to
disclose when it knows or should know that the beneficiary is laboring under a material
misunderstanding of plan benefits. Kalda v. Sioux Valley Physician Partners, Inc., 481 F.3d
639, 644 (8th Cir. 2007) (emphasis added). This suggests that fiduciaries are charged with the
knowledge they should have acquired in the exercise of their duty of prudence.
them. Plaintiffs have a number of hurdles to overcome. At this point, however, plaintiffs have
sufficiently alleged a breach-of-loyalty claim.
b. Rule 9(b)
MoneyGram next argues that Count II fails to meet the standards of Fed. R. Civ. P. 9(b),
which requires parties to allege with particularity the circumstances constituting fraud or
mistake. But plaintiffs claims rest solely on negligence, and Rule 9(b) does not apply to
negligence claims.11 Cf. In re NationsMart Corp. Sec. Litig., 130 F.3d 309, 314-15 (8th Cir.
1997) (particularity requirement of Rule 9(b) does not apply to allegations of innocent or
negligent misrepresentation that are at the heart of a claim under 15 U.S.C. 77k(a), and so
long as the plaintiff intends only to plead such a claim, any insufficient averments of fraud are
mere surplusage).
c. Reliance and Causation
Plaintiffs allege both that reliance is presumed in an ERISA breach of fiduciary duty
case and, alternatively, that they in fact relied to their detriment on the misstatements and
omissions [and] on the inaccurate and incomplete information that Defendants made to Plan
Participants. Am. Compl. 212. Seizing on the former allegation and ignoring the latter,
MoneyGram argues that plaintiffs have conceded that they did not rely on any misstatement or
omission. MoneyGram is obviously incorrect.
MoneyGram also argues that plaintiffs cannot prove a causal connection between any loss
to the Plan and the alleged misrepresentations and omissions because, had MoneyGram made the
disclosures that plaintiffs now contend should have been made, the value of MoneyGram stock
would have dropped, and the Plan would have been damaged. This seems logical, and most of
what plaintiffs say in response is unavailing. For example, plaintiffs cite Roth v. Sawyer-Cleator
Lumber Co., 61 F.3d 599 (8th Cir. 1995), for the proposition that [i]f a breach of fiduciary duty
caused the Plan to purchase Company stock which declined in value, the causal link between the
breach and the loss is established, even if the Company stock would have inevitably declined in
value. Id. at 605. But defendants who caused the Plan to purchase Company stock
obviously did not fool themselves; in other words, defendants did not breach a fiduciary duty by
failing to disclose to themselves what they already knew. And plaintiffs did not have the ability
to cause the Plan to purchase Company stock, meaning that there is no causal connection
between any misrepresentation to plaintiffs and the Plans acquisition of MoneyGram stock.
The only way in which plaintiffs could have used the information that they claim they
were denied would have been to sell their MoneyGram stock at an earlier time. But plaintiffs did
not have the right to trade on the basis of inside information that is, information that had not
been disclosed to the market as a whole. And once MoneyGram disclosed the information to
plaintiffs and the rest of the market, the stock price would have dropped, and plaintiffs would
have suffered the same damages.
Some courts have dismissed misrepresentation and failure-to-disclose claims on this
basis, see Edgar, 503 F.3d at 350, and this Court is tempted to follow suit. But plaintiffs argue
that they should have the chance to conduct discovery and obtain an expert analysis to show how
a full and timely disclosure would have affected the Plan. The Court recognizes that this matter
is before it on a Rule 12(b)(6) motion which, again, tests the sufficiency of allegations, not
proof. The Court will be in a better position to assess plaintiffs arguments after the development
of the record. The Court will therefore deny MoneyGrams motion to dismiss to the extent that it
is based on the argument that plaintiffs cannot prove causation. Needless to say, though,
MoneyGram is free to renew its argument on motion for summary judgment.
d. Failure to Disclose
Finally, MoneyGram argues that, whatever its obligation to ensure that its
communications with Plan participants are truthful and accurate, it has no affirmative obligation
to disclose information about the companys investment portfolio or any other adverse business
developments that may affect the price of MoneyGram stock. It is not clear to what extent the
Court needs to address this argument. Plaintiffs do not appear to be making a pure failure-todisclose
claim that is, a claim that defendants breached the duty of loyalty by failing to
disclose information that was not necessary to correct earlier misleading disclosures. And a pure
failure-to-disclose claim would likely be unsuccessful, although Eighth Circuit case law is far
from clear on the issue.
The Eighth Circuit has interpreted the duty of loyalty quite broadly. In Shea, the Eighth
Circuit noted that, although the Supreme Courts decision in Varity declined to reach the issue of
whether ERISA fiduciaries ever have an affirmative duty to disclose, see Varity, 516 U.S. at 506,
the Eighth Circuits underlying decision in Varity made clear that the duty of loyalty requires an
ERISA fiduciary to communicate any material facts which could adversely affect a plan
members interests. Shea, 107 F.3d at 628. The Shea court went on to say that [t]he duty to
disclose material information is the core of a fiduciarys responsibility, animating the common
law of trusts long before the enactment of ERISA. Id. (quoting Eddy v. Colonial Life Ins. Co.
of Am., 919 F.2d 747, 750 (D.C. Cir. 1990)).
At the same time, Shea involved an entirely different set of facts an HMOs failure to
disclose that its doctors had a financial incentive to deny care and this Court would be
surprised if the broad language of Shea were interpreted to impose a duty of continuous
disclosure about corporate developments to employees who participate in an EIAP. In another
context, the Eighth Circuit has said that [e]mployer fiduciaries are not required to provide
general business information to potential plan participants . . . . Wilson, 55 F.3d at 406
(rejecting claim that an employer should have disclosed its general business condition to
plaintiffs, who could then have assessed whether another, more favorable severance package
might be offered at a later date).
At a minimum, however, it is clear that a fiduciary has an affirmative duty to disclose
when the fiduciary has reason to know that an earlier disclosure was misleading. See Kalda v.
Sioux Valley Physician Partners, Inc., 481 F.3d 639, 644 (8th Cir. 2007) (a fiduciary . . . cannot
remain silent if it knows or should know that the beneficiary is laboring under a material
misunderstanding of plan benefits). Plaintiffs have alleged just such misleading
misrepresentations, see, e.g., Am. Compl. 46, 84, 93-95, and thus their allegations are
sufficient to withstand a Rule 12(b)(6) motion.
4. Count III
A fiduciary who has the power to appoint other fiduciaries has a duty to monitor the
performance of his appointees. See Pedraza v. Coca-Cola Co., 456 F. Supp. 2d 1262, 1277
(N.D. Ga. 2006) (citing 29 C.F.R. 2509.75-8). In Count III, plaintiffs allege that MoneyGram,
and all the individual defendants, had such power and a corresponding duty to monitor their
appointees (which are alleged to include each other as well as the trustee). According to
plaintiffs, the duty to monitor other fiduciaries includes the duty to give them information
necessary for them to carry out their fiduciary functions. Plaintiffs allege that MoneyGram
breached this duty by failing to ensure that their appointees were given adequate information
about MoneyGrams high-risk investment portfolio. Essentially, this claim mirrors plaintiffs
nondisclosure claim, except that the persons to whom plaintiffs allege the disclosures should
have been made are the appointed fiduciaries rather than plaintiffs and other members of the
putative class.
MoneyGram first argues that this claim should be dismissed because there can be no
liability for failure to monitor without an underlying breach of fiduciary duty by the appointed
fiduciary. But the Court has held that plaintiffs have pleaded viable claims for breach of
fiduciary duty against the appointed fiduciaries, and thus the Court cannot dismiss the monitoring
claim on this basis.
MoneyGram also argues that, because there is no affirmative duty to notify Plan
participants about adverse business developments, there can be no duty to inform appointed
fiduciaries about them either. But as discussed above, there is a duty to disclose information to
participants when the fiduciary knows or has reason to know that its earlier disclosures were
misleading. MoneyGram does not explain why, if such a duty exists as to participants, it would
not also exist as to appointed fiduciaries.
The Court will therefore deny MoneyGrams motion to dismiss Count III. To be clear,
the Court is not adopting plaintiffs conception of the scope of the duty to monitor. Indeed, the
Court has its doubts about plaintiffs theory. At this point, the Court holds merely that the
reasons advanced by MoneyGram do not justify dismissal of Count III.
5. Count IV
In Count IV, plaintiffs allege that MoneyGram breached the duty of loyalty by failing to
engage independent fiduciaries who could make independent judgments about the Plans
investment in MoneyGram stock; failing to notify appropriate federal agencies, including the
SEC, of the facts that made MoneyGram stock an unsuitable investment; failing to take other
necessary steps to ensure that participants interests were loyally and prudently served; and
placing its own interests above those of the participants. Plaintiffs also make passing reference
to the November 2007 offer from Euronet Worldwide, Inc. to purchase MoneyGram, and to the
fact that certain defendants sold MoneyGram stock during the class period.
The Court agrees with MoneyGram that these allegations do not state a claim for relief
under ERISA. ERISA fiduciaries are permitted to have interests adverse to those of plan
participants. See Pegram, 530 U.S. at 225. As a general matter, the fact that a fiduciarys
interests were adverse to those of plan participants may be relevant in determining whether the
fiduciary acted prudently under the circumstances. See Moench, 62 F.3d at 572 (the more
uncertain the loyalties of the fiduciary, the less discretion it has to act). But the mere fact that a
fiduciary had an adverse interest does not by itself state a claim for relief. DiFelice, 497 F.3d at
The remainder of plaintiffs allegations in Count IV seek to hold defendants accountable
for non-fiduciary acts. The Court again reminds plaintiffs that this is an ERISA action, not a
securities-fraud action. The Court has already rejected the argument that filing a disclosure with
the SEC is a fiduciary act. Similarly, a corporate officers sale of company stock is not the act of
an ERISA fiduciary, as such a sale has nothing to do with the management or administration of
the Plan or its assets. See 1002(21)(A). Finally, the allegation that MoneyGram refused a
favorable purchase offer likewise does not state a claim under ERISA. Whether to merge with
another company is a corporate decision, not a fiduciary one. Kalda, 481 F.3d at 646 (companys
alleged failure to adequately consider merger did not state a claim for breach of fiduciary duty).
The Court will therefore grant MoneyGrams motion to dismiss Count IV.
6. Remaining Claims
MoneyGrams only argument with respect to Counts V and VI is that, absent an
underlying breach of fiduciary duty, co-fiduciary liability does not exist. MoneyGram is correct,
but, as discussed above, plaintiffs have pleaded viable claims for breach of fiduciary duty, and
therefore they have pleaded viable claims for co-fiduciary liability.
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS
1. Defendants motion to dismiss [Docket No. 5] is GRANTED IN PART and
2. Defendants motion is GRANTED with respect to Count IV of plaintiffs
amended complaint [Docket No. 11], and Count IV is DISMISSED WITH
3. Defendants motion is DENIED in all other respects.
Dated: March 25, 2009 s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge


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