Sacerdote v. New York University ( 2021 )


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  • 18-2707-cv
    Sacerdote v. New York University
    In the
    United States Court of Appeals
    For the Second Circuit
    ________
    AUGUST TERM, 2020
    ARGUED: OCTOBER 14, 2020
    DECIDED: AUGUST 16, 2021
    No. 18-2707-cv
    DR. ALAN SACERDOTE, DR. HERBERT SAMUELS, MARK CRISPIN MILLER,
    MARIE E. MONACO, DR. SHULAMITH LALA STRAUSSNER, DR. JAMES B.
    BROWN, individually and as representatives of a class of participants
    and beneficiaries on behalf of the NYU SCHOOL OF MEDICINE
    RETIREMENT PLAN FOR MEMBERS OF THE FACULTY, PROFESSIONAL
    RESEARCH STAFF AND ADMINISTRATION AND THE NEW YORK
    UNIVERSITY RETIREMENT PLAN FOR MEMBERS OF THE FACULTY,
    PROFESSIONAL RESEARCH STAFF AND ADMINISTRATION,
    Plaintiffs-Appellants,
    v.
    NEW YORK UNIVERSITY,
    Defendant-Appellee,
    THE TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK,
    Intervenor.*
    ________
    *The Clerk of Court is respectfully directed to amend the caption as set
    forth above.
    2                                                                    18-2707-cv
    Appeal from the United States District Court
    for the Southern District of New York.
    ________
    Before: NEWMAN **, WALKER, and MENASHI, Circuit Judges.
    ________
    The plaintiff-appellant class participates in retirement plans
    administered by New York University (NYU) and the NYU School of
    Medicine. Plaintiffs brought this suit against NYU in its capacity as
    the fiduciary of plaintiffs’ retirement plans, alleging a number of
    breaches of NYU’s fiduciary duties under the Employment
    Retirement Income Savings Act (ERISA). Following a bench trial in
    the United States District Court for the Southern District of New York
    (Katherine B. Forrest, J.) and post-trial motions (Analisa Torres, J.),
    they appeal from the entry of judgment in defendant-appellee NYU’s
    favor and the denial of post-trial motions. On appeal, plaintiffs
    challenge: (1) the dismissal of their claim that NYU breached its duty
    of prudence by offering particular share classes of mutual funds in
    the retirement plans, (2) the denial of leave to amend their complaint
    to name additional defendants, (3) the striking of their demand for a
    jury trial, (4) the use of written declarations rather than live
    examination for direct testimony in the bench trial, (5) some of the
    district court’s findings in NYU’s favor after the bench trial, and
    (6) the denial of their motion for a new trial, which argued that the
    judge presiding over the trial (Forrest, J.) should have been
    disqualified. We find merit in the first two of these challenges, but
    **Circuit Judge Ralph K. Winter, originally a member of this panel, died on
    December 8, 2020. Circuit Judge Jon O. Newman has replaced Judge Winter on
    the panel for this appeal. See 2d Cir. IOP E(b).
    3                                                               18-2707-cv
    none in the remainder. Accordingly, we AFFIRM in part, VACATE
    in part, and REMAND for further proceedings consistent with this
    opinion.
    Judge Menashi dissents in part in a separate opinion.
    ________
    JEROME J. SCHLICHTER (Sean E. Soyars, on the brief),
    Schlichter Bogard & Denton, LLP, St. Louis, MO,
    for Plaintiffs-Appellants Sacerdote, et al.
    SETH P. WAXMAN (David M. Lehn, Amy C.
    Lishinski, on the brief), Wilmer Cutler Pickering
    Hale and Dorr, LLP, Washington, DC; Alan
    Schoenfeld, Ryan M. Chabot, on the brief, Wilmer
    Cutler Pickering Hale and Dorr, LLP, New York,
    NY; Mark Muedeking, Ian C. Taylor, on the brief,
    DLA Piper LLP, Washington, DC; Brian Kaplan, on
    the brief, DLA Piper LLP, New York, NY; for
    Defendant-Appellee NYU.
    Todd M. Schneider, James A. Bloom, on the brief,
    Schneider Wallace Cottrell Konecky Wotkyns LLP,
    Emeryville, CA; Todd S. Collins, Eric Lechtzin, on
    the brief, Berger Montague PC, Philadelphia, PA;
    for Amici Curiae Law Professors in Support of
    Plaintiffs-Appellants Sacerdote, et al.
    Nancy G. Ross, on the brief, Mayer Brown LLP,
    Chicago, IL; Brian D. Netter, on the brief, Mayer
    4                                                           18-2707-cv
    Brown LLP, Washington, DC; for Amici Curiae
    American Council on Education and Other Higher
    Education Associations in Support of Defendant-
    Appellee NYU.
    ________
    JOHN M. WALKER, JR., Circuit Judge:
    The plaintiff-appellant class participates in retirement plans
    administered by New York University (NYU) and the NYU School of
    Medicine. Plaintiffs brought this suit against NYU in its capacity as
    the fiduciary of plaintiffs’ retirement plans, alleging a number of
    breaches of NYU’s fiduciary duties under the Employment
    Retirement Income Savings Act (ERISA). Following a bench trial in
    the United States District Court for the Southern District of New York
    (Katherine B. Forrest, J.) and post-trial motions (Analisa Torres, J.),
    they appeal from the entry of judgment in defendant-appellee NYU’s
    favor and the denial of post-trial motions. On appeal, plaintiffs
    challenge: (1) the dismissal of their claim that NYU breached its duty
    of prudence by offering particular share classes of mutual funds in
    the retirement plans, (2) the denial of leave to amend their complaint
    to name additional defendants, (3) the striking of their demand for a
    jury trial, (4) the use of written declarations rather than live
    examination for direct testimony in the bench trial, (5) some of the
    district court’s findings in NYU’s favor after the bench trial, and
    (6) the denial of their motion for a new trial, which argued that the
    judge presiding over the trial (Forrest, J.) should have been
    disqualified. We find merit in the first two of these challenges, but
    none in the remainder. Accordingly, we AFFIRM in part, VACATE
    5                                                           18-2707-cv
    in part, and REMAND for further proceedings consistent with this
    opinion.
    BACKGROUND
    The plaintiffs represent a class of NYU and NYU School of
    Medicine employees who are suing the University for breach of
    fiduciary duty in its administration of their retirement plans under
    ERISA. Plaintiffs participate in either the NYU Retirement Plan for
    Members     of   the   Faculty,   Professional   Research   Staff,   and
    Administration (the Faculty Plan) or the NYU School of Medicine
    Retirement Plan for Members of the Faculty, Professional Research
    Staff, and Administration (the Medical Plan). The Faculty Plan covers
    most of NYU’s faculty, research staff, and administrative staff, while
    the Medical Plan serves employees of the School of Medicine.
    The NYU Retirement Plan Committee (the Committee) is the
    nine-member fiduciary entity responsible for administering both
    plans, having been designated as the Plan Administrator by NYU’s
    Board of Trustees. The Committee is made up of senior University
    and Medical Center administrators, including NYU’s Chief
    Investment Officer, the Senior Vice Presidents of Finance of NYU and
    the Medical Center, the Medical Center’s Controller, the Vice
    Presidents of Human Resources of NYU and the Medical Center, the
    Directors of Benefits of NYU and the Medical Center, and NYU’s
    Provost (or its designee).
    Both the Faculty Plan and Medical Plan (the Plans) are defined
    contribution plans, as set forth in 
    29 U.S.C. § 1002
    (34), and are tax-
    6                                                                  18-2707-cv
    qualified under 
    26 U.S.C. § 403
    (b). Defined contribution plans are
    retirement plans in which the employee contributes directly to her
    individual account, and the benefits that will ultimately accrue to the
    employee are a function of the amount she contributes to investments
    in the plan and the market performance of those investments, minus
    the expenses of plan administration. 1 Plans that operate under §
    403(b)’s beneficial tax scheme are retirement plans administered by
    certain qualifying non-profits, including universities, that offer
    mutual fund and annuity investment options to participants. 2
    Participants in NYU’s Plans had a range of investment options
    offered by either TIAA-CREF or the Vanguard Group, the two
    retirement investment firms under contract with NYU. The Faculty
    Plan offered 103 investment options (25 from TIAA-CREF; 78 from
    Vanguard) to plan participants during the class period. The Medical
    Plan offered 84 options (11 from TIAA-CREF; 73 from Vanguard).
    Both Plans offered investment options that included fixed annuity
    contracts (meaning the investment returns at a contractually specified
    minimum interest rate), variable annuities (returns at a variable
    interest rate), and mutual funds. Participants could also choose from
    both actively and passively managed index funds, with actively
    managed funds charging higher fees for that service.
    TIAA-CREF and Vanguard are referred to in the industry as the
    Plans’ “recordkeepers.” They provide investment and administrative
    services, for which they charge investment fees and recordkeeping
    1 
    29 U.S.C. § 1002
    (34). Defined contributions plans stand in contrast to
    defined benefit plans, in which the benefits ultimately accruing to the employee
    are fixed rather than dependent on market performance.
    2   
    26 U.S.C. § 403
    (b).
    7                                                                     18-2707-cv
    fees, respectively. For mutual funds, the investment fees are charged
    as a percentage of each fund’s assets (the “expense ratio”). The fees
    can differ depending on the share class of the fund: a “retail” share
    (the share class that is marketed to individuals with small amounts to
    invest) typically has a higher expense ratio than an “institutional”
    share (the share class that is available to institutional investors,
    including large retirement plans, with large amounts to invest) of the
    same fund. These fees are measured in “basis points,” with each basis
    point equaling 0.01% of the fund’s assets.                 The administrative
    (recordkeeping) fees are charged either (1) as a flat fee, in which case
    each fund participant pays a set amount, or (2) by revenue sharing.
    Under the revenue-sharing model, a fund pays the recordkeeper a set
    portion of the fund’s expense ratio.
    In 2016, plaintiffs brought this suit under 
    29 U.S.C. § 1132
    (a)(2), 3 alleging that NYU breached its fiduciary duties of loyalty
    and prudence and engaged in prohibited transactions, which caused
    the Plans to incur excessive costs and unreasonable performance
    losses. The breach allegedly occurred because the defendants:
    permitted TIAA-CREF to mandate inclusion of specific proprietary
    accounts, requiring use of TIAA-CREF as the recordkeeper, in the
    Plans (Counts I and II); incurred unreasonable recordkeeping fees
    (Counts III and IV); incurred unreasonable investment fees,
    unnecessary marketing and distribution fees and mortality and
    3 Section 1132(a)(2) empowers plan participants and beneficiaries, among
    others, to sue plan fiduciaries for relief under 
    29 U.S.C. § 1109
    . Section 1109(a)
    makes fiduciaries who breach their fiduciary duties personally liable for resulting
    losses to the plan and the return of profits that flowed to the fiduciaries, and
    subject to equitable relief.
    8                                                                 18-2707-cv
    expense risk fees, and thus caused unreasonable performance losses
    (Counts V and VI); and failed to monitor the investments (Count VII).
    On August 25, 2017, the district court granted in part and
    denied in part NYU’s motion to dismiss, dismissing Counts I, II, IV,
    VI, and VII in their entirety and Counts III and V in part. 4 The district
    court’s order dismissed all claims alleging that NYU breached its duty
    of loyalty under § 404(a)(1)(A); that NYU engaged in prohibited
    transactions under § 406(a)(1)(A), (C), and (D); and that NYU failed
    to monitor the investments. 5 The order also dismissed some of the
    plaintiffs’ claims alleging a breach of the duty of prudence under
    § 404(a)(1)(B). First, the court dismissed the imprudence claim under
    Count I, which alleged that NYU mandated inclusion of specific
    accounts and required the use of TIAA-CREF as recordkeeper. 6
    Second, the court dismissed in part the imprudence claims under
    Count V to the extent they arose from allegations that NYU offered
    more expensive retail class shares rather than the lower-cost
    institutional class shares of the same mutual funds (the share-class
    claim), or incurred unnecessary and unreasonable layers of fees. 7
    The only claims that survived dismissal were the imprudence
    claims in Count III and one of the imprudence claims in Count V.
    Specifically, Count III survived dismissal on the grounds of
    imprudence regarding incurring excessive recordkeeping costs (the
    4 Sacerdote v. NYU, No. 16-cv-6284 (KBF), 
    2017 WL 3701482
     (S.D.N.Y. Aug.
    25, 2017).
    5   
    Id. at *15
    .
    6   
    Id. at *8
    .
    7   
    Id. at *11
    .
    9                                                             18-2707-cv
    recordkeeping claim); employing a revenue-sharing method to pay
    recordkeepers (the revenue-sharing claim); and failing to consolidate
    to a single recordkeeper for each Plan (the recordkeeper-
    consolidation claim). 8       Count V survived on the ground of
    imprudence in continuing to include the underperforming CREF
    Stock Account and TIAA Real Estate Account as investment options
    (the investment-retention claim). 9 Thus, those portions of Counts III
    and V were permitted to proceed to trial.
    On September 8, 2017, plaintiffs moved both (1) for
    reconsideration of the district court’s dismissal of the share-class and
    failure to monitor claims and (2) for leave to amend the complaint to
    add seventeen individuals who were Committee members during the
    class period as named defendants and to replead the dismissed
    claims. On October 17, the district court denied the motion for leave
    to amend and deferred consideration of the request to replead the
    dismissed claims until resolution of the pending motion for
    reconsideration.         The district court denied the motion for
    reconsideration two days later, relying on different reasoning from
    that supporting the dismissal of the share-class claim. 10
    As the parties were preparing for trial, NYU successfully
    moved to strike plaintiffs’ jury demand.        The district court also
    established trial management rules that specified that all direct
    testimony would be taken by written declarations (the court’s
    8   
    Id.
     at *8–9.
    9   
    Id. at *10
    .
    10  Sacerdote v. NYU, No. 16-cv-6284 (KBF), 
    2017 WL 4736740
    , at *1–4
    (S.D.N.Y. Oct. 19, 2017).
    10                                                                        18-2707-cv
    standing practice for bench trials) and that each side would have 25
    hours of trial time to present its case.
    The district court held a bench trial on the surviving claims
    from April 16–26, 2018. On July 31, 2018, the district court issued its
    written decision finding in favor of NYU on all remaining claims. 11
    On August 14, 2018, plaintiffs filed a motion for amended or
    additional trial findings under Federal Rule of Civil Procedure 52(b)
    and to alter or amend the judgment under Rule 59(e), seeking findings
    that individual Committee members had failed to adequately
    perform their fiduciary duties and removal of those individual
    Committee members as fiduciaries, despite the overall judgment for
    NYU. Plaintiffs also appealed to this court on September 11, 2018, but
    we held the appeal in abeyance pending the district court’s resolution
    of the post-trial motions.
    Meanwhile, by mid-July 2018, it had become public knowledge
    that Judge Forrest would be leaving the bench. She resigned from the
    bench effective September 11, 2018, and returned to her prior firm,
    Cravath, Swaine & Moore LLP, the following day. On October 1,
    2018, plaintiffs moved for a new trial pursuant to Rule 60(b) on the
    ground that Judge Forrest should have been disqualified from the
    case based on a connection to NYU through a colleague at Cravath.
    On July 1, 2019, Judge Torres, to whom the case had eventually been
    reassigned, denied plaintiffs’ various post-trial motions. 12
    11   Sacerdote v. NYU, 
    328 F. Supp. 3d 273
    , 317 (S.D.N.Y. 2018).
    12 Sacerdote v. NYU, No. 16-cv-6284 (AT), 
    2019 WL 2763922
    , at *7 (S.D.N.Y.
    July 1, 2019).
    11                                                                      18-2707-cv
    DISCUSSION
    On appeal, plaintiffs argue that: (1) the district court erred in
    dismissing the share-class claim; (2) the district court erred in denying
    the motion to amend the complaint to add individual Committee
    members as defendants, an error that later prejudiced two of their
    post-trial motions; 13 (3) they were entitled to a jury trial under the
    Seventh Amendment; (4) the use of written declarations for all direct
    testimony violated the Federal Rules of Civil Procedure and denied
    them a fair trial; (5) the district court’s trial findings in NYU’s favor
    on the recordkeeper-consolidation claim and the investment-
    retention claim were clearly erroneous; and (6) Judge Forrest should
    have been disqualified from presiding over this case.
    We agree with respect to the first two challenges, and
    accordingly vacate the dismissal of the share-class claim, vacate the
    denial of leave to amend, and vacate the denial of the prejudiced post-
    trial motions. We otherwise affirm.
    I.        Dismissal of the share-class claim was error
    Although the district court granted NYU’s motion to dismiss a
    number of claims for failure to state a claim under Rule 12(b)(6), the
    only such claim relevant on appeal is plaintiffs’ allegation in Count V
    Plaintiffs appeal the denial of their post-trial Rule 52(b) and 59(e) motions
    13
    separately from their appeal of the denial of leave to amend. For the reasons
    explained in Part II, infra, we decline to review the denial of plaintiffs’ post-trial
    motions because we find antecedent error in the district court’s denial of leave to
    amend, which prejudiced the review of those motions.
    12                                                                18-2707-cv
    that the Plans’ fiduciary breached its duty of prudence by offering
    retail-class shares of certain mutual funds rather than lower-cost
    institutional-class shares of the same funds (i.e., the share-class claim).
    Plaintiffs allege that “the only difference between the various
    share classes is fees,” 14 and that large investors like the Plans “can
    obtain [institutional] share classes with far lower costs than retail
    mutual fund shares.” 15 They allege that “[e]ven if a jumbo plan does
    not meet the minimum investment thresholds for an institutional
    share class, fund companies will routinely waive those minimums for
    billion dollar plans if merely requested.” 16 Supported by a lengthy
    and detailed chart, plaintiffs make specific allegations regarding the
    basis point differences in costs between retail and institutional shares
    of each of dozens of mutual funds offered in the Faculty and/or
    Medical Plans. They allege that fiduciaries can readily obtain this
    data on cost-differentials from the prospectus for each fund.
    In granting the motion to dismiss, the district court found that
    “prudent fiduciaries may very well choose to offer retail class shares
    over institutional class shares . . . because retail class shares
    necessarily offer higher liquidity than institutional investment
    vehicles.” 17 It also found that plaintiffs’ allegations of imprudence in
    this respect were insufficient because “the fees offered for the sixty-
    three identified retail funds included in NYU’s Options ranged from
    14Sacerdote v. NYU, No. 16-cv-6284, ECF No. 39, ¶ 139 (S.D.N.Y. Nov. 9,
    2016) (amended complaint).
    15   
    Id. ¶ 141
    .
    16   
    Id. ¶ 142
    .
    17   Sacerdote, 
    2017 WL 3701482
     at *11.
    13                                                                           18-2707-cv
    4-77 basis points—a lower range than that permitted by the Third,
    Seventh, and Ninth Circuits.” 18
    In responding to plaintiffs’ motion for reconsideration of the
    share-class claim, the district court changed its reasoning for
    dismissing the claim. 19 It affirmed the dismissal on the basis that “the
    ‘prudence of each investment is not assessed in isolation but, rather,
    as the investment relates to the portfolio as a whole,’” 20 and therefore “it
    must consider the mix rather than the prudence of any individual
    option when assessing a prudence claim.” 21 It found the allegations
    to be deficient, noting that “plaintiffs do not allege that, taken as a
    whole, the mixes of options in the Plans were imprudent because of
    the inclusion of these retail class shares.” 22 To withstand dismissal,
    the district court stated that “[t]he retail class shares would have to be
    so prevalent that an entire Plan was tainted.” 23 It found that, in this
    case, plaintiffs’ allegations that the Plans offered retail rather than
    institutional shares in 63 funds—out of 103 offered by the Faculty Plan
    18Id. (citing Tibble v. Edison Int’l, 
    729 F.3d 1110
    , 1135 (9th Cir. 2013), vacated,
    
    575 U.S. 523
     (2015); Renfro v. Unisys Corp., 
    671 F.3d 314
    , 319 (3d Cir. 2011); Loomis
    v. Exelon Corp., 
    658 F.3d 667
    , 669 (7th Cir. 2011); Hecker v. Deere & Co., 
    556 F.3d 575
    ,
    586 (7th Cir. 2009)).
    19   Sacerdote, 
    2017 WL 4736740
     at *1–3.
    
    Id. at *1
     (emphasis in original) (quoting Pension Benefit Guar. Corp. v.
    20
    Morgan Stanley Inv. Mgmt. Inc., 
    712 F.3d 705
    , 717 (2d Cir. 2013) (hereinafter
    “PBGC”)).
    21   
    Id. at *3
    .
    22   
    Id.
     (emphasis in original).
    23   
    Id.
    14                                                                      18-2707-cv
    and 84 offered by the Medical Plan—were insufficient to meet that
    standard as a matter of law. 24
    On appeal, plaintiffs argue that their allegations are sufficient
    to generate a plausible inference of imprudence, and that the district
    court misconstrued our precedent in finding otherwise. 25                    NYU
    disagrees on the merits, but it argues principally that, even if
    dismissal was error, the claim should not be reinstated because the
    district court’s later trial findings rendered the dismissal harmless.26
    For the reasons we now explain, we find that the share-class
    claim was adequately pled and that we cannot conclude, on the
    present record, that its dismissal was harmless.
    A. Standard of review
    We review the grant of a motion to dismiss a claim under Rule
    12(b)(6) de novo. 27 We apply the well-established pleading standard
    articulated in Bell Atlantic Corp. v. Twombly 28 and Ashcroft v. Iqbal 29:
    “To survive a motion to dismiss, a complaint must contain sufficient
    factual matter, accepted as true, to ‘state a claim to relief that is
    plausible on its face.’” 30 In assessing the complaint, we must construe
    it liberally, accepting all factual allegations therein as true and
    24   
    Id.
    25   Pls.-Appellants’ Br. at 30.
    26   Def.-Appellee’s Br. at 43.
    27   Palin v. N.Y. Times Co., 
    940 F.3d 804
    , 809 (2d Cir. 2019).
    28   
    550 U.S. 544
     (2007).
    29   
    556 U.S. 662
     (2009).
    30   
    Id. at 678
     (quoting Twombly, 
    550 U.S. at 570
    ).
    15                                                                       18-2707-cv
    drawing all reasonable inferences in the plaintiffs’ favor. 31 However,
    we disregard conclusory allegations, such as “formulaic recitation[s]
    of the elements of a cause of action.” 32
    We have cautioned that “the nature of . . . allegations under
    ERISA calls for particular care in applying this . . . inquiry in order to
    ensure that the . . . [c]omplaint alleges nonconclusory factual content
    raising a plausible inference of misconduct and does not rely on the
    vantage point of hindsight.” 33 On the other hand, we are cognizant
    that “ERISA plaintiffs generally lack the inside information necessary
    to make out their claims in detail unless and until discovery
    commences.” 34 So, as is true in many contexts, a claim under ERISA
    may withstand a motion to dismiss based on sufficient circumstantial
    factual allegations to support the claim, even if it lacks direct
    allegations of misconduct. 35
    31   Palin, 940 F.3d at 809.
    32   Twombly, 
    550 U.S. at 555
    ; see also Iqbal, 
    556 U.S. at 678
    .
    33 PBGC, 712 F.3d at 718 (emphases in original) (internal quotation marks
    and citation omitted).
    34   Id. (internal quotation marks and citation omitted).
    35 See id. (discussing that when an ERISA complaint “contains no factual
    allegations referring directly to [the defendant’s] knowledge, methods, or
    investigations at the relevant times,” the claim “may still survive a motion to
    dismiss if the court, based on circumstantial factual allegations, may reasonably
    infer” that the defendant acted unlawfully (emphasis in original) (internal
    quotation marks and citation omitted)).
    16                                                                      18-2707-cv
    B. The share-class claim for breach of the fiduciary duty of
    prudence was adequately pled
    ERISA imposes a “prudent man standard of care” on
    retirement plan fiduciaries in order “to protect beneficiaries of
    employee benefits plans.” 36 As relevant to the share-class claim,
    fiduciaries must “discharge [their] duties . . . 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 aims.” 37
    The prudence of a fiduciary “is measured according to the
    objective prudent person standard developed in the common law of
    trusts.” 38 ERISA instructs us to assess a fiduciary’s prudence “under
    the circumstances then prevailing,” so we must “judge a fiduciary’s
    actions based upon information available to the fiduciary at the time
    of each investment decision and not from the vantage point of
    hindsight.” 39 “[T]his standard focuses on a fiduciary’s conduct in
    arriving at an investment decision, not on its results, and asks
    36 Id. at 715 (internal quotation marks and citation omitted); see also 
    29 U.S.C. § 1104
    (a)(1).
    37   
    29 U.S.C. § 1104
    (a)(1)(B).
    38 Katsaros v. Cody, 
    744 F.2d 270
    , 279 (2d Cir. 1984) (internal quotation marks
    and citation omitted); see also Tibble, 575 U.S. at 528 (“We have often noted that an
    ERISA fiduciary’s duty is ‘derived from the common law of trusts.’” (quoting
    Cent. States, Se. & Sw. Areas Pension Fund v. Cent. Transp., Inc., 
    472 U.S. 559
    , 570
    (1985))).
    39   PBGC, 712 F.3d at 716 (internal quotation marks and citation omitted).
    17                                                                         18-2707-cv
    whether a fiduciary employed the appropriate methods to investigate
    and determine the merits of a particular investment.” 40
    A claim for breach of the duty of prudence will “survive a
    motion to dismiss if the court, based on circumstantial factual
    allegations, may reasonably infer from what is alleged that the
    process was flawed” or “that an adequate investigation would have
    revealed to a reasonable fiduciary that the investment at issue was
    improvident.” 41 That is the situation here.
    The complaint sets forth cost differentials of specified basis
    points for the dozens of mutual funds as to each of which, they claim,
    NYU should have offered lower-cost institutional shares instead of
    higher-cost retail shares. Plaintiffs allege that this information was
    included in fund prospectuses and would have been available to
    inquiring fiduciaries when the fiduciaries decided to offer the funds
    in the Plans.         In sum, plaintiffs have alleged “that a superior
    alternative investment was readily apparent such that an adequate
    investigation”—simply reviewing the prospectus of the fund under
    consideration—“would have uncovered that alternative.” 42                         On
    review of a motion to dismiss, we must draw reasonable inferences
    40   Id. (internal quotation marks, citation, and alterations omitted).
    41   Id. at 718 (internal quotation marks and citations omitted).
    42  Id. at 719 (describing allegations that would be sufficient to raise a
    plausible inference of imprudence and withstand a motion to dismiss); see also
    Sweda v. Univ. of Pa., 
    923 F.3d 320
    , 331 (3d Cir. 2019), cert. denied, 
    140 S. Ct. 2565
    (2020) (reversing dismissal of claim alleging “that despite the availability of low-
    cost institutional class shares, [the fiduciary] selected and retained identically
    managed but higher cost retail class shares,” where the complaint included “a
    table comparing options in the Plan with the readily available cheaper
    alternatives”).
    18                                                                         18-2707-cv
    from the complaint in plaintiffs’ favor. 43 Upon doing so, with respect
    to the share-class allegations, we believe that plaintiffs have
    sufficiently alleged that NYU acted imprudently in offering the
    number of retail-class shares identified in the complaint.
    Although the district court abandoned its initial rationale for
    dismissing this claim, we note two problems in its order. First, the
    notion that “prudent fiduciaries may very well choose to offer retail
    class shares over institutional class shares” because retail shares offer
    greater liquidity provides no basis to dismiss pleadings that
    otherwise generate plausible inferences of the claimed misconduct.
    Such an argument “goes to the merits and is misplaced at this early
    stage.” 44 While the plausibility standard requires that facts be pled
    “permit[ting] the court to infer more than the mere possibility of
    misconduct,” 45 we do not require an ERISA plaintiff “to rule out every
    possible lawful explanation for the conduct he challenges.” 46 To do
    so “would invert the principle that the complaint is construed most
    favorably to the nonmoving party” on a motion to dismiss. 47
    Second, we caution against overreliance on cost ranges from
    other ERISA cases as benchmarks. While such comparisons may
    43   Palin, 940 F.3d at 809.
    44   Sweda, 923 F.3d at 333.
    45   PBGC, 712 F.3d at 718 (internal quotation marks and citation omitted).
    46   Braden v. Wal-Mart Stores, Inc., 
    588 F.3d 585
    , 597 (8th Cir. 2009).
    47 
    Id.
     (internal quotation marks and citation omitted); see also Sweda, 923
    F.3d at 326 (rejecting application of Twombly’s heightened antitrust pleading
    standard to ERISA complaints and noting that, on a motion to dismiss, a district
    court may not “require[] [an ERISA plaintiff] to rule out lawful explanations for
    [the defendant’s] conduct”).
    19                                                                   18-2707-cv
    sometimes be instructive, their utility is limited because the
    assessment of any particular complaint is a “context-specific task.” 48
    We cannot rule out the possibility that a fiduciary has acted
    imprudently by including a particular fund even if, for example, the
    fees that fund charged are lower than a fee found not imprudent in
    another case.
    The       district   court’s   order    denying      the   motion      for
    reconsideration similarly offers no compelling ground for affirmance.
    In it, the court faulted plaintiffs for not alleging (1) that “the mixes of
    options in the Plans were imprudent,” or (2) that the Plans were
    tainted in their entirety because the retail shares were included.
    Neither ground for dismissal is persuasive.
    As for the “mix” of funds, we agree with the general principle
    that “the prudence of each investment is not assessed in isolation but,
    rather, as the investment relates to the portfolio as a whole.” 49 But
    this principle alone cannot support the district court’s dismissal of the
    share-class claim in this case. As we have suggested previously,
    allegations concerning the mix of investments are more centrally
    relevant to claims of imprudence based on the riskiness of funds or
    the risk-profile of a portfolio as a whole. 50 Here, with respect to the
    48   PBGC, 712 F.3d at 718.
    49 Id. at 717; see also Sweda, 923 F.3d at 331 (“employ[ing] a holistic
    approach” to evaluate ERISA complaint); Braden, 
    588 F.3d at 598
     (noting that
    ERISA’s “remedial scheme . . . counsel[s] careful and holistic evaluation of an
    ERISA complaint’s factual allegations before concluding that they do not support
    a plausible inference that the plaintiff is entitled to relief”).
    50See, e.g., PBGC, 712 F.3d at 721 (discussing adequacy of allegations that
    fiduciary “exposed the [p]lan to excessive risk due to an egregious over-
    concentration in high-risk mortgage securities”).
    20                                                                     18-2707-cv
    share-class claim, the alleged imprudent choice has nothing to do
    with the funds’ risk profiles; the choice was simply between higher-
    or lower-cost shares of the same fund. In some cases where the ‘mix’
    analysis is appropriate, there is uncertainty as to what investment
    option would have been included if the questioned investment option
    had not been included. Here, however, there was a binary choice
    between the retail shares and the institutional shares; had the funds
    not included the former, they would have included the latter, to some
    extent. Even if this were not the case, the principle that a portfolio
    should be assessed holistically does not preclude critical assessment
    of individual funds. 51 Fiduciaries cannot shield themselves from
    liability—much        less   discovery—simply          because      the    alleged
    imprudence inheres in fewer than all of the fund options. If the
    prudence of a particular investment offering will become clear only
    in the context of the portfolio as a whole, that argument cannot
    resolve a motion on the pleadings; it goes to the merits.
    As to whether the Plans were tainted in their entirety, we do
    not suggest that a holistic assessment of the Plans is irrelevant to the
    share-class claim—we simply think that plaintiffs have pled enough
    on that claim to withstand dismissal at the pleading stage. They
    allege that 63 of the funds included in the 103-fund and 84-fund Plans
    charged excessive (retail share) fees, each of which plaintiffs set forth
    with specificity. The district court appears to have faulted plaintiffs
    for failing to calculate what 63/104 or 63/84 would be as a percentage
    51 See Sweda, 923 F.3d at 330 (“We did not hold . . . that a meaningful mix
    and range of investment options insulates plan fiduciaries from liability for breach
    of fiduciary duty. Such a standard would allow a fiduciary to avoid liability by
    stocking a plan with hundreds of options, even if the majority were overpriced or
    underperforming.”).
    21                                                           18-2707-cv
    of each plan, and then to allege that those percentages were high
    enough to taint each plan as a whole. But plaintiffs’ non-conclusory
    allegations plainly pointed the way to these obvious inferences in
    plaintiffs’ favor.
    Drawing all reasonable inferences in their favor, plaintiffs have
    plausibly alleged that offering these retail shares rather than
    institutional shares was imprudent. This claim should have been, and
    now must be, litigated on the merits.
    C.     The share-class claim’s dismissal was not harmless
    NYU urges us to decline to reinstate the share-class claim on
    the basis that any error in dismissing it was harmless because of two
    findings the district court made at trial. The first finding was that
    plaintiffs failed to prove a breach of fiduciary duty in using revenue
    sharing to fund recordkeeping costs. The second finding was that
    plaintiffs failed to prove loss resulting from either of the revenue-
    sharing or recordkeeping claims. NYU’s reliance on these findings is
    premised on its argument that selecting higher-cost retail shares was
    necessary to pay recordkeeping fees through revenue sharing. For
    the reasons that follow, however, we are not persuaded that these
    findings compel the conclusion that dismissal of the share-class claim
    on the pleadings was harmless.
    i.     The district court’s revenue-sharing finding
    We first address NYU’s argument that because the use of
    revenue sharing was found not imprudent at trial, and because the
    difference in costs between retail and institutional shares supplies the
    funds for the revenue-sharing arrangement to pay the recordkeepers,
    22                                                          18-2707-cv
    the dismissal of the share-class claim on the pleadings was harmless.
    We think NYU’s argument takes the district court’s trial findings too
    far.
    The revenue-sharing claim presented at trial was not concerned
    with the specific expense ratios of each fund that generated revenue
    for the recordkeepers. Rather, the district court was asked to focus on
    two other issues: (1) whether it was imprudent not to cap the per-
    participant cost of revenue sharing, and (2) whether it was imprudent
    to use revenue sharing at all instead of employing a flat fee billed to
    each participant. 52 The court’s rejection of this claim relied only on
    evidence pertaining to these general questions in relation to the Plans
    as a whole. 53
    We cannot be sure what would have happened at trial (or on
    summary judgment) had the share-class claim survived dismissal.
    Importantly, the district court’s rejection of the revenue-sharing claim
    was specific to plaintiffs’ claim that the cost should have been capped
    per-participant; the district court did not explicitly find that the
    revenue-sharing costs themselves were prudent. When pressed at
    argument to direct us to such a finding in the district court opinion,
    NYU’s counsel could point only to the district court’s brief rejection
    of plaintiffs’ separate recordkeeping claim.      But in rejecting the
    recordkeeping claim, the district court simply rejected the plaintiffs’
    52   Sacerdote, 328 F. Supp. 3d at 305.
    53   Id. at 305–06.
    23                                                               18-2707-cv
    expert opinion on what would have been a reasonable per-participant
    amount to charge for recordkeeping services. 54
    We decline to foreclose the reinstatement of a wrongly
    dismissed claim on the basis of a record that was developed with
    respect to a different question and that is underdeveloped in the
    context of the harmlessness argument that defendants now press. For
    example, there is a set of Committee meeting minutes in the record,
    upon which the dissent heavily relies, that appears relevant to the
    relationship between retail-share costs and revenue sharing. 55 But the
    document is unaccompanied by any testimony, is lacking in
    specificity, and does not compel the dissent’s conclusion that the
    erroneous dismissal of the share-class claim was necessarily harmless.
    The fact that one document purports to memorialize a discussion
    about whether or not to offer retail shares does not establish the
    prudence of that discussion or its results as a matter of law.
    The dissent states that “if revenue sharing is prudent, so too is
    offering retail shares.” 56 We have no quarrel with the general concept
    of using retail shares to fund revenue sharing. But, there was no trial
    finding that the use here of all 63 retail shares to achieve that goal was
    not imprudent.              Simply concluding that revenue sharing is
    appropriate does not speak to how the revenue sharing is
    implemented in a particular case. We do not know, for example,
    54   Id. at 306.
    55 See App’x at 959–62 (NYU Retirement Committee Meeting Minutes, Jan.
    10, 2011); see also Dissent at 7–8.
    56   Dissent at 4.
    24                                                             18-2707-cv
    whether revenue sharing could prudently be achieved with fewer
    retail shares.
    The dissent also insists that this “numerical claim” is
    nonetheless foreclosed by the findings at trial because NYU arrived
    at this number through “a deliberative process for adopting the
    revenue-sharing model.” 57 We cannot agree. While the absence of a
    deliberative process may be enough to demonstrate imprudence, the
    presence of a deliberative process does not, contrary to the dissent’s
    suggestion, suffice in every case to demonstrate prudence.
    Deliberative processes can vary in quality or can be followed in bad
    faith. In assessing whether a fiduciary fulfilled her duty of prudence,
    we ask “whether a fiduciary employed the appropriate methods to
    investigate and determine the merits of a particular investment,” not
    merely whether there were any methods whatsoever. 58
    Of course, because this claim has not been litigated on the
    merits, we offer no opinion on the precise deliberations at issue here.
    Discovery should take place—and it may turn out to be minimal—
    before the claim is dispensed with. At the same time, any incentive
    to future parties to seek discovery as to dismissed claims will be
    avoided.
    ii.   The district court’s no-loss findings
    NYU’s second argument in favor of harmlessness is that the
    district court’s findings that plaintiffs failed to prove loss on two of
    the tried claims—the revenue-sharing and recordkeeping claims—
    57   Id. at 1.
    58   PBGC, 712 F.3d at 716 (emphasis added).
    25                                                                  18-2707-cv
    foreclose a showing of loss on the share-class claim.                  We are
    unpersuaded.
    First, regarding the revenue-sharing claim, the district court’s
    no-loss finding was at most implied; the court made no explicit
    findings about why plaintiffs had failed to prove loss on that claim.
    In contrast to the district court’s detailed discussion of the evidence
    supporting the finding that NYU had not breached its fiduciary duty
    by using revenue sharing, the district court’s only statement
    regarding plaintiffs’ failure to show loss relevant to the revenue-
    sharing claim is a blanket statement in a footnote rejecting their efforts
    to show loss generally. 59 That the district court did not discuss loss in
    the specific context of the revenue-sharing claim is understandable—
    it separately concluded there was no breach of fiduciary duty.
    However, that absence of reasoning leaves us with no way to assess
    whether the share-class claim is foreclosed in the way NYU argues.
    Second, as to the recordkeeping claim, the district court’s
    discussion of its no-loss finding was unpersuasive. The full extent of
    the district court’s findings on this front was a brief rejection of
    plaintiffs’ proposed alternative range for recordkeeping fees. 60 This
    finding that plaintiffs had not come up with a credible alternative is
    distant from saying that the fees charged affirmatively resulted in no
    loss, and a further distance still from saying that each of the retail-
    59  See Sacerdote, 328 F. Supp. 3d at 285 n.25 (explaining that because
    plaintiffs had not proven loss, the district court would not determine whether to
    shift the burden to NYU to disprove damages).
    60   Id. at 306.
    26                                                                      18-2707-cv
    class shares selected was necessary to pay the recordkeeping costs
    and none of them resulted in lost opportunity costs.
    Moreover, we are hard-pressed to rely on the discussion of loss
    that the district court did undertake because the discussion was
    somewhat unclear in several respects. It conflated loss with damages,
    appeared to answer a question the court claimed to leave undecided,
    and effectively misallocated the burden of proof on damages.
    The first thing that perplexes us is the district court’s conflation
    of “loss” with “damages.” The court stated expressly that, because it
    found that plaintiffs had not shown loss, it had no occasion to
    confront the subsequent question of damages. 61 However, the court
    then proceeded to describe the evidence exclusively in terms of
    damages,        crediting         NYU’s   “damages    rebuttal     expert” 62   and
    concluding that plaintiffs “ha[d] not met their burden of proof as to
    damages for excessive recordkeeping fees.” 63 To be clear, these terms
    are not interchangeable. Loss is measured in this context by “a
    comparison of what the [p]lan actually earned on the . . . investment
    with what the [p]lan would have earned had the funds been available
    for other [p]lan purposes. If the latter amount is greater than the
    former, the loss is the difference between the two.” 64 The question of
    how much money should be awarded to the plaintiffs in damages is
    distinct from, and subsequent to, whether they have shown a loss.
    61   See id. at 285 n.25.
    62   Id. at 306 n.76 (emphasis added).
    63   Id. at 307 (emphasis added).
    64   Donovan v. Bierwirth, 
    754 F.2d 1049
    , 1056 (2d Cir. 1985).
    27                                                                         18-2707-cv
    The district court’s conflation of the two concepts saps our confidence
    in its analysis on this subject.
    We are further puzzled because, in stating that it had no need
    to address damages, the district court explicitly declined to resolve
    which party would bear the burden of proof during a damages
    analysis 65—but nevertheless it went on to resolve that exact question,
    and did so incorrectly. It stated that “plaintiffs fail to demonstrate by
    a preponderance of the evidence that their proposed fee ranges were
    the only plausible or prudent ones,” and so “[p]laintiffs thus have not
    met their burden of proof as to damages for excessive recordkeeping
    fees.” 66 These statements indicate that the district court believed the
    plaintiffs would, in addition to proving loss, bear the burden of
    proving the amount of damages. That allocation of the burden was
    erroneous.
    Although plaintiffs bear the burden of proving a loss, 67 the
    burden under ERISA shifts to the defendants to disprove any portion
    of potential damages by showing that the loss was not caused by the
    breach of fiduciary duty.68 This approach is aligned with the Supreme
    65   Sacerdote, 328 F. Supp. 3d at 285 n.25.
    66   Id. at 307.
    
    6729 U.S.C. § 1109
    (a); see also Silverman v. Mut. Benefit Life Ins. Co., 
    138 F.3d 98
    , 104 (2d Cir. 1998).
    68N.Y. State Teamsters Council Health & Hosp. Fund v. Estate of DePerno, 
    18 F.3d 179
    , 183 (2d Cir. 1994); see also Donovan, 
    754 F.2d at 1056
     (“[T]he court should
    presume that the funds would have been used in the most profitable” prudent
    fashion, and “[t]he 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.”). But see
    Silverman, 
    138 F.3d at 105
     (Jacobs, J., and Meskill, J., concurring) (“Causation of
    28                                                                           18-2707-cv
    Court’s instruction to “look to the law of trusts” for guidance in
    ERISA cases. 69 Trust law acknowledges the need in certain instances
    to shift the burden to the trustee, who commonly possesses superior
    access to information. 70 Even in the context of the share-class claim,
    where plaintiffs have alleged the known cost-differentials between
    retail and institutional shares, “it makes little sense to have the
    plaintiff hazard a guess as to what the fiduciary would have done had
    it not breached its duty in selecting investment vehicles, only to be
    told [to] guess again.” 71 In considering the potential opportunity cost
    to the plaintiff of the investment, “[i]t makes much more sense for the
    fiduciary to say what it claims it would have done and for the plaintiff
    to then respond to that.” 72
    damages is therefore an element of the claim, and the plaintiff bears the burden of
    proving it.”).
    69Tibble, 575 U.S. at 529; see also LaRue v. DeWolff, Boberg & Assocs., Inc., 
    552 U.S. 248
    , 253 n.4 (2008) (“[T]he common law of trusts . . . informs our interpretation
    of ERISA’s fiduciary duties . . . .”).
    70 Restatement (Third) of Trusts, § 100 cmt. f (“When a plaintiff brings suit
    against a trustee for breach of trust, the plaintiff generally bears the burden of
    proof. This general rule, however, is moderated in order to take account of the
    trustee’s . . . superior (often, unique) access to information about the trust and its
    activities . . . .”).
    71 Brotherston v. Putnam Invs., LLC, 
    907 F.3d 17
    , 38 (1st Cir. 2018), cert. denied,
    
    140 S. Ct. 911
     (2020) (internal quotation marks omitted); see also 
    id. at 39
     (joining
    the Fourth, Fifth, and Eighth circuits in “hold[ing] that once an ERISA plaintiff has
    shown a breach of fiduciary duty and loss to the plan, the burden shifts to the
    fiduciary to prove that such loss was not caused by its breach, that is, to prove that
    the resulting investment decision was objectively prudent”) (citing Tatum v. RJR
    Pension Inv. Comm., 
    761 F.3d 346
    , 363 (4th Cir. 2014); McDonald v. Provident Indem.
    Life Ins. Co., 
    60 F.3d 234
    , 237 (5th Cir. 1995); Martin v. Feilen, 
    965 F.2d 660
    , 671 (8th
    Cir. 1992)).
    72   Id. at 38.
    29                                                                      18-2707-cv
    By requiring the plaintiffs here to prove that the alternative fee
    ranges proposed by their expert were “the only plausible or prudent
    ones,” 73 the district court failed to shift the burden onto the defendant.
    Had plaintiffs been able to prove that the charged fees were
    imprudent, and had the plaintiffs shown a prudent alternative, the
    burden would have shifted to the defendant to disprove that the
    entire amount of loss should be awarded as damages. Put differently,
    if a plaintiff proved that it was imprudent to pay $100 for something
    but that it would have been prudent to pay $10, it is not the plaintiff’s
    burden to prove that it would also have been imprudent to pay every
    price between $11 and $99. It is on the defendant to prove that there
    is some price higher than $10 that it would have been prudent to
    pay. 74
    Against this backdrop, we decline to foreclose the share-class
    claim on the basis of the district court’s loss findings. Accordingly,
    we vacate dismissal of that claim in Count V and order its
    reinstatement for further proceedings.
    II.         Leave to amend was denied under the wrong legal
    standard, and denial was not harmless
    Plaintiffs argue that the district court erred when it denied their
    motion to amend the complaint to add the Committee members as
    named defendants. We agree, because the district court denied the
    73   Sacerdote, 328 F. Supp. 3d at 307 (emphasis added).
    Cf. LaScala v. Scrufari, 
    479 F.3d 213
    , 221 & n.4 (2d Cir. 2007) (noting, in a
    74
    case where a fiduciary breached his fiduciary duty by giving his son salary raises
    without trustee approval, that it would be his burden to disprove damages from
    the salary raises by demonstrating that his son’s services were reasonably
    necessary and the value of those services equaled the sums paid).
    30                                                                18-2707-cv
    motion to amend with reference to the wrong legal standard. We
    therefore vacate the denial of leave to amend and remand for
    consideration under the correct legal standard. Plaintiffs further
    argue that this first error led to another, when the district court
    refused to order the removal of two of the members as fiduciaries. We
    agree that the outcome of the motion to amend may have affected the
    outcome of plaintiffs’ post-trial motions for removal of specific
    Committee members, and therefore we also vacate the relevant
    rulings on those post-trial motions.
    The district court, on December 5, 2016, entered a scheduling
    order in which the dates seem to have been proposed by the parties
    that provided, in relevant part: “Amended pleadings may not be filed,
    and no party may be joined, without leave of Court more than 10 days
    after the filing of this Order or the filing of a responsive pleading,
    whichever occurs first.” 75 Nine months later, on September 8, 2017,
    shortly after resolution of the motion to dismiss and nearly three
    months before fact discovery closed, plaintiffs sought leave of court
    to amend the complaint to add the individual Committee members as
    named defendants.
    The district court denied the motion with citations to Federal
    Rule of Civil Procedure 16(b) and the scheduling order. Specifically,
    it found that “[t]he time for amending the complaint as of right has
    passed” and so “without [plaintiffs] demonstrating good cause, the
    Court may dismiss this untimely motion.                Plaintiffs have not
    75 Sacerdote v. NYU, No. 16-cv-6284 (KBF), ECF No. 43 (S.D.N.Y. Dec. 5,
    2016) (scheduling order).
    31                                                                            18-2707-cv
    demonstrated good cause for their failure to include the defendants
    whom they now propose to add.” 76
    We review denial of leave to amend for abuse of discretion, 77
    and will find it when the district court’s “decision rests on an error of
    law (such as the application of the wrong legal principle).” 78 The
    district court here applied the wrong Federal Rule of Civil Procedure
    to the motion to amend, so we must vacate the ruling.
    The ability of a plaintiff to amend the complaint is governed by
    Rules 15 and 16 of the Federal Rules of Civil Procedure which, when
    read together, set forth three standards for amending pleadings that
    depend on when the amendment is sought. At the outset of the
    litigation, a plaintiff may freely amend her pleadings pursuant to Rule
    15(a)(1) as of right without court permission. 79 After that period
    ends—either upon expiration of a specified period in a scheduling
    order or upon expiration of the default period set forth in Rule
    15(a)(1)(A)—the plaintiff must move the court for leave to amend, but
    the court should grant such leave “freely . . . when justice so requires”
    pursuant to Rule 15(a)(2).              This is a “liberal” and “permissive”
    standard, and the only “grounds on which denial of leave to amend
    has long been held proper” are upon a showing of “undue delay, bad
    76 Sacerdote v. NYU, No. 16-cv-6284 (KBF), ECF No. 100 (S.D.N.Y. Oct. 17,
    2017) (order denying motion to amend) (citations omitted).
    77   Shimon v. Equifax Info. Servs. LLC, 
    994 F.3d 88
    , 91 (2d Cir. 2021).
    78   Zervos v. Verizon N.Y., Inc., 
    252 F.3d 163
    , 169 (2d Cir. 2001).
    79   Fed. R. Civ. P. 15(a)(1).
    32                                                                            18-2707-cv
    faith, dilatory motive, [or] futility.” 80               The period of “liberal”
    amendment ends if the district court issues a scheduling order setting
    a date after which no amendment will permitted. It is still possible
    for the plaintiff to amend the complaint after such a deadline, but the
    plaintiff may do so only up a showing of the “good cause” that is
    required to modify a scheduling order under Rule 16(b)(4). 81
    The language of the scheduling order in this case set the
    deadline (ten days) for amending without leave of court. It set no
    expiration date after which all amendments were prohibited, which
    would have triggered the stricter Rule 16(b)(4) “good cause” standard
    thereafter.        Thus, if plaintiffs wanted to amend after the stated
    deadline, they only needed the court’s leave—under Rule 15(a)(2)—
    which they sought by filing their motion for leave to amend. By
    considering plaintiffs’ motion to amend under Rule 16, the district
    court here committed legal error and thus abused its discretion.
    The dissent, to find grounds for affirmance on this point, looks
    beyond the plain language of the order and speculates that what the
    district court really intended when it set the deadline to amend
    “without leave of Court” was to also set a deadline after which even
    amendments with leave of Court would not be permitted. 82 But
    80Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 
    797 F.3d 160
    , 190 (2d
    Cir. 2015) (internal quotation marks and citation omitted).
    81   Parker v. Columbia Pictures, 
    204 F.3d 326
    , 340 (2d Cir. 2000).
    82   Dissent at 10–11.
    33                                                                     18-2707-cv
    litigants are entitled to rely on the meaning suggested by the plain
    language of a court order, as these plaintiffs did here.
    The dissent also suggests that the scheduling order at issue was
    a “pro forma” order, and that our analysis should therefore be
    affected by the possibility that similar orders were entered in other
    cases. 83 Based purely on the formatting of the document, we do not
    necessarily disagree that it originated as a form: there appear to have
    been blank spaces in which the parties filled in their proposed dates
    for the various scheduling deadlines. 84 But we are unpersuaded to
    change our legal analysis as a result.
    First of all, we have found nothing defective in the order itself,
    only in the district court’s ensuing ruling on the motion for leave to
    amend, which applied the wrong legal standard. Other district courts
    that have issued an identical scheduling order, and evaluated a
    motion for leave to amend under that order pursuant to Rule 15(a)(2),
    would have no cause for concern. District courts wishing to evaluate
    motions for leave to amend under Rule 16 after a particular date need
    only write their scheduling orders consistent with that intent, and
    state that no amendment will be permitted after that date in order to
    trigger the Rule 16 standard. And secondly, even if the dissent’s
    speculation that other district courts may have committed similar
    interpretive missteps is true, that provides no reason for us to review
    this decision more deferentially. The efficacy of our appellate review
    83   Id. at 12.
    84We note, however, that there is no evidence in the record about other
    scheduling orders entered in cases before this district court that would inform this
    speculation.
    34                                                                     18-2707-cv
    should not be affected by the possible existence of other similarly
    worded scheduling orders in other cases.
    We cannot find this error harmless because the resulting denial
    of leave to amend may have later affected plaintiffs’ post-trial
    motions. In the district court’s trial findings, it had harshly criticized
    as incompetent the performance of two Committee members—
    Margaret Meagher and Nancy Sanchez—who were among the
    fiduciaries that plaintiffs had sought (through their motion to amend)
    to name as defendants. 85 Thereafter, in their proper role of policing
    85 Meagher was the Committee co-chair who served as the Senior Director
    of Benefits for NYU and later the Senior Director of Benefits for the Medical Center.
    The district court described her testimony as “concerning” and found “that
    Meagher does not have the depth of knowledge appropriate to oversee a plan the
    size of the NYU Faculty and Medical Plans.” Meagher’s testimony “made it clear
    that she viewed her role as primarily concerned with scheduling, paper
    movement, and logistics,” and “she displayed a surprising lack of in-depth
    knowledge concerning the financial aspects of managing a multi-billion dollar
    pension portfolio and a lack of true appreciation for the significance of her role as
    a fiduciary.” The court further noted that Meagher “appeared to believe it was
    sufficient for her to have relied rather blindly on [a retained investment advisor
    firm]’s expertise.” See Sacerdote, 328 F. Supp. 3d at 291 & nn. 35–37.
    Sanchez was Meagher’s supervisor and the Senior Vice President and Vice
    Dean for Human Resources and Organizational Development and Learning at the
    Medical Center. The district court found that Sanchez “was similarly unfamiliar
    with basic concepts relating to the Plans” and “d[id] not view herself as having
    adequate time to serve effectively on the Committee.” In one notable portion of
    testimony, when she was asked to identify the plan administrator, Sanchez
    responded, “I don’t review the plan documents. That’s what I have staff for.”
    Sanchez said that she relied upon Meagher to review the materials for her but, of
    course, Sanchez has her own full vote on the Committee. See id. at 291 & n.37.
    35                                                                         18-2707-cv
    the Plans’ fiduciaries, plaintiffs pressed for Meagher and Sanchez’s
    removal. 86
    Plaintiffs’ effort was thwarted, in major part, because Meagher
    and Sanchez had not been named as defendants. Judge Torres denied
    plaintiffs’ post-trial motions on the ground that Judge Forrest had
    previously considered and rejected ordering their removal from the
    Committee. 87 However, we see no such ruling by Judge Forrest, even
    implicitly, in the trial findings. The only question put to the district
    court was the Committee’s performance as a whole because the
    Committee, in NYU’s shoes, was the only defendant. 88 In answering
    that question, the district court found that although “the level of
    involvement and seriousness with which several Committee
    members treated their fiduciary duty [was] troubling, [the court] does
    not find that this rose to a level of failure to fulfill fiduciary
    obligations. Between [the investment advisor firm’s] advice and the
    guidance of the more well-equipped Committee members . . . , the
    Court is persuaded that the Committee performed its role
    adequately.” 89 In our view, this passage means only that, while
    86Such equitable relief is available under 
    29 U.S.C. § 1109
    (a), which
    provides that “[a]ny person who is a fiduciary with respect to a plan who breaches
    any of the responsibilities, obligations, or duties imposed upon fiduciaries” by
    ERISA “shall be subject to . . . equitable or remedial relief as the court may deem
    appropriate, including removal of such fiduciary.” See also Katsaros, 
    744 F.2d at 281
     (“Since the trustees here acted imprudently . . . , it was not an abuse of
    discretion for the court to remove the trustees pursuant to its equitable power.”).
    87   Sacerdote, 
    2019 WL 2763922
     at *3.
    88 See, e.g., Sacerdote, 328 F. Supp. 3d at 279 (describing the issue at trial as
    plaintiffs’ “claim that NYU, through its Retirement Plan Committee . . . failed to
    fulfill certain of its fiduciary obligations under ERISA).
    89   Id. at 293.
    36                                                              18-2707-cv
    certain constituent members of the Committee were incompetent,
    their colleagues’ diligence saved the Committee itself from failing to
    fulfill its fiduciary obligations.
    Accordingly, although the decision of whether to order
    removal of ERISA fiduciaries would be a matter committed to the
    discretion of the trial court, 90 here, there is no such exercise of
    discretion to which we must defer. Had Meagher and Sanchez been
    named in the complaint as defendants, the district court would have
    had to enter judgments specific to each of them after trial, finding
    whether each had breached her fiduciary duty as an individual
    member of the Committee.                  Given the district court’s harsh
    assessment of Meagher and Sanchez’s performance as fiduciaries, it
    is hardly inevitable that the district court would have found in their
    favor and declined to remove them as fiduciaries had it been required
    to enter those judgments.
    We therefore vacate the denial of leave to amend and remand
    for consideration under the correct legal standard. We also vacate the
    denial of plaintiffs’ Rule 52(b) and 59(e) post-trial motions; those
    motions sought findings specific to Meagher and Sanchez, and so,
    depending on how the motion to amend is disposed of on remand,
    those motions may require further consideration as well.
    III.     Plaintiffs waived their jury demand
    Plaintiffs argue that they had a Seventh Amendment right to a
    trial by jury, and therefore that the district court erred in striking their
    jury demand. We disagree. The record of proceedings before the
    90   Katsaros, 
    744 F.2d at 281
    .
    37                                                                       18-2707-cv
    district court makes clear that plaintiffs waived their jury demand.91
    Accordingly, we need not address the substance of their Seventh
    Amendment argument.
    On December 4, 2017, NYU moved to strike plaintiffs’ jury
    demand. Under the Southern District of New York’s local rules,
    plaintiffs’ opposition to NYU’s motion was due within fourteen
    days. 92 On December 19, one day after the deadline for plaintiffs to
    file a response had expired, the district court granted NYU’s motion
    to strike. Plaintiffs now argue that we should excuse their failure to
    respond to NYU’s motion as “inadvertent[].” 93 But they offer no
    justification for their admitted inadvertence—let alone a sympathetic
    one—and no explanation for their failure to subsequently raise this
    issue before the district court.
    Plaintiffs did not, upon being alerted by the district court’s
    December 19 order, move for reconsideration of the order denying a
    jury trial. 94 Nor did they object at the pretrial conference, at which the
    91 See Royal Am. Managers, Inc. v. IRC Holding Corp., 
    885 F.2d 1011
    , 1018 (2d
    Cir. 1989) (“[T]he right to jury trial may be waived by conduct of the parties.”).
    92See    S.D.N.Y.     Local      Rule        6.1(b)(2),     available         at
    https://www.nysd.uscourts.gov/sites/default/files/local_rules/rules-2018-10-
    29.pdf.
    93   Pls.-Appellants’ Br. at 46.
    94 Although “[t]he standard for granting such a motion is strict, and
    reconsideration will generally be denied unless the moving party can point to
    controlling decisions or data that the court overlooked,” Shrader v. CSX Transp.,
    Inc., 
    70 F.3d 255
    , 257 (2d Cir. 1995), plaintiffs could have filed such a motion to
    litigate their claimed constitutional right in good faith. Indeed, we have
    recognized that motions for reconsideration are appropriate vehicles to “correct a
    clear error or prevent manifest injustice.” Kolel Beth Yechiel Mechil of Tartikov, Inc.
    38                                                                        18-2707-cv
    parties and court turned their attention to the forthcoming bench trial.
    And finally, the plaintiffs thereafter “participat[ed] in a bench trial
    without objection[, which alone] constitutes waiver of the jury trial
    right.” 95 Under these circumstances, “[i]t would be patently unfair
    and, in effect, an ambush of the trial judge on appeal if appellant were
    allowed to lodge an early demand for a jury, participate in a bench
    trial without objection, and then assign as error the failure to honor
    the jury demand.” 96
    IV.     The district court’s use of written direct testimony was not
    an abuse of discretion
    The district court followed its bench-trial practice of taking
    direct testimony by written submissions, followed by live cross-
    examination and live redirect.              Plaintiffs argue that this practice
    violated the Federal Rules of Civil Procedure and denied plaintiffs a
    fair trial. These arguments lack merit.
    Plaintiffs claim to have lodged this objection with the district
    court, but the letter they point to as evidence of that objection contains
    no such argument. 97 In that letter, they argued only that they needed
    more trial time for oral cross-examination of witnesses in light of the
    court’s practice of taking direct testimony by written declaration.
    v. YLL Irrevocable Tr., 
    729 F.3d 99
    , 104 (2d Cir. 2013) (internal quotation marks and
    citation omitted).
    95   Royal Am. Managers, 
    885 F.2d at 1018
    .
    96   
    Id.
     (internal quotation marks, citation, and alterations omitted).
    97   Pls.-Appellants’ Reply Br. at 24.
    39                                                                           18-2707-cv
    Having acknowledged the practice without objection, they effectively
    consented to it.
    It is a “well-established general rule that a court of appeals will
    not consider an issue raised for the first time on appeal.” 98 In any
    event, we have approved of the practice of taking direct testimony by
    written submissions in bench trials. 99 While in certain cases this
    practice might exceed a district court’s discretion, there is nothing in
    this record indicating that the district court abused its discretion to
    manage trials efficiently. 100
    V.          The district court did not err in ruling for NYU on the tried
    claims
    Plaintiffs appeal the district court’s entry of judgment for NYU
    after trial, and specifically make arguments that the trial court erred
    with respect to: (A) the recordkeeper-consolidation claim, and (B) the
    investment-retention claim. 101 We reject these arguments.
    98   Otal Invs. Ltd. v. M/V CLARY, 
    673 F.3d 108
    , 120 (2d Cir. 2012) (per curiam).
    See Ball v. Interoceanica Corp., 
    71 F.3d 73
    , 77 (2d Cir. 1995) (per curiam)
    99
    (“[W]e approve the procedure allowing the parties to produce direct evidence
    from their witnesses in writing while permitting subsequent oral cross-
    examination—particularly when the parties agree to that procedure in advance.”).
    See United States v. Yakobowicz, 
    427 F.3d 144
    , 150 (2d Cir. 2005) (reviewing
    100
    “trial management issue . . . for abuse of discretion”); Manley v. AmBase Corp., 
    337 F.3d 237
    , 249 (2d Cir. 2003) (“District courts have considerable discretion in the
    management of trials . . . .”).
    Because we find no error in the district court’s determinations after trial
    101
    that NYU did not breach its fiduciary duties, we have no occasion to consider
    plaintiffs’ argument about the district court’s loss analysis in the context of their
    appeal from the trial findings.
    40                                                                      18-2707-cv
    “We review the district court’s findings of fact after a bench
    trial for clear error and its conclusions of law de novo.” 102 The clear
    error standard permits us to set aside a district court’s factual findings
    only if we are “left with the definite and firm conviction that a mistake
    has been committed.” 103 The district court’s determination as to
    whether NYU breached its fiduciary duty rests on an “application of
    those facts to draw conclusions of law, including a finding of liability,
    [and so] is subject to de novo review.” 104 Because we discern no clear
    error in the district court’s factual findings, we have little difficulty
    agreeing that NYU did not breach its fiduciary duties in the ways
    argued by plaintiffs at trial.
    Turning         first   to   the    recordkeeper-consolidation         claim:
    plaintiffs argued that it was imprudent for NYU to use multiple
    recordkeepers for the Plans rather than consolidating to one
    102 L.I. Head Start Child Dev. Servs., Inc. v. Econ. Opportunity Comm'n of
    Nassau Cnty., Inc., 
    710 F.3d 57
    , 65 (2d Cir. 2013); see also Fed. R. Civ. P. 52(a)(6)
    (providing that, in an action tried without a jury, “[f]indings of fact, whether based
    on oral or other evidence, must not be set aside unless clearly erroneous, and the
    reviewing court must give due regard to the trial court’s opportunity to judge the
    witnesses’ credibility”).
    103   United States v. U.S. Gypsum, 
    333 U.S. 364
    , 396 (1948).
    104 F.D.I.C. v. Providence Coll., 
    115 F.3d 136
    , 140 (2d Cir. 1997) (internal
    quotation marks and citation omitted); see also L.I. Head Start, 710 F.3d at 69–71
    (noting that the district court’s factual finding was not clearly erroneous and then
    finding, as a matter of de novo review on appeal, “that the Administrators
    breached their fiduciary duties with respect to the . . . [c]laim”); cf. LoPresti v.
    Terwilliger, 
    126 F.3d 34
    , 39 (2d Cir. 1997) (holding that a legal conclusion that a
    particular individual qualifies as a fiduciary under ERISA is subject to de novo
    review). To the extent language in Katsaros suggests that the applicable standard
    of review on this question might be clear error, see 
    744 F.2d at 279
    , it plainly has
    not survived our subsequent precedent.
    41                                                          18-2707-cv
    recordkeeper.             The Medical Plan contracted with TIAA-CREF,
    Vanguard, and Prudential as recordkeepers until 2013, when it
    consolidated with TIAA-CREF, while the Faculty Plan contracted
    with both TIAA-CREF and Vanguard throughout the class period. 105
    The district court found that, while plaintiffs were correct that
    “[c]onsolidation may lead to lower recordkeeping fees[,] . . . [t]he
    evidence at trial support[ed] defendant’s contention that technical
    and other requirements prevented immediate consolidation.” 106
    Specifically, the district court credited testimony from several
    Committee members to the effect that a lengthy and resource-
    intensive change of the computer systems used for payroll, finance,
    student records, and human resources at the Washington Square
    campus (where Faculty Plan members work) precluded the
    Committee from consolidating recordkeepers during that time.107
    The court credited NYU’s belief that “any recordkeeper switch could
    not be completed without risk of significant errors or additional
    changes prior to completion of this global update of NYU’s systems
    and technology.” 108 The switchover of the University’s IT systems
    created this hurdle because “[a] change in recordkeepers would entail
    significant coordination with and changes to the new systems being
    implemented,” due to the fact that the recordkeepers’ systems must
    105   Sacerdote, 328 F. Supp. 3d at 293–94.
    106   Id. at 294.
    107   Id. at 295–98.
    108   Id. at 298.
    42                                                                          18-2707-cv
    interface with NYU’s systems in order to allow participants to access
    their account information. 109
    Plaintiffs argue on appeal, as they did before the district court,
    that the IT justification for not consolidating recordkeepers sooner is
    not credible because the contemporaneous Committee meeting
    minutes lack references to these technical difficulties. 110 But “clear
    error review mandates that we defer to the district court’s factual
    findings, particularly those involving credibility determinations.” 111
    In light of the district court’s extensive discussion of witness
    testimony that persuaded it to credit the IT justification, we find no
    clear error in the factual findings forming basis of the court’s rejection
    of the recordkeeper-consolidation claim.
    Having accepted the district court’s factual findings, we agree
    that NYU did not breach its fiduciary duty of prudence by failing to
    consolidate recordkeepers any faster than it did. In light of the
    technical challenges NYU was facing, including the risk that
    participants would suffer disrupted account access, we cannot
    conclude that a hypothetical prudent fiduciary would have acted any
    differently.
    Turning next to the investment-retention claim: plaintiffs argue
    that NYU breached its duty of prudence by retaining two particular
    funds—the CREF Stock Account and the TIAA Real Estate Account—
    109   Id. & n.50.
    110   Pls.-Appellants’ Br. at 71; Sacerdote, 328 F. Supp. 3d at 296 n.47.
    111Phx. Glob. Ventures, LLC v. Phx. Hotel Assocs., Ltd., 
    422 F.3d 72
    , 76 (2d Cir.
    2005) (per curiam).
    43                                                           18-2707-cv
    in the Plans beyond when it should have because NYU was using
    inadequate benchmarks to decide which funds to retain.
    The district court found after detailed analysis, however, that
    the benchmarks used by the Committee to evaluate these two funds
    were appropriate in light of these funds’ unique and complex
    characteristics and that the retention of these funds was valuable in
    diversifying the plans. 112 The district court found that the fact the
    Committee changed the benchmarks employed to monitor the TIAA
    Real Estate Account during the relevant period demonstrated careful
    attention to the fund’s performance. 113 Similarly, the district court
    found that the Committee “focused on the difficulties with
    benchmarking that the CREF Stock Account presented,” held
    “specialized discussions” about it, and was “actively engaged” with
    monitoring this fund’s benchmarks. 114 With respect to its evaluation
    of the funds’ performance, the district court found that these funds
    were performing as well as could be expected from contemporaneous
    assessments. 115 The district court specifically discredited plaintiffs’
    expert testimony regarding these funds’ performance. 116 We see no
    clear error in these factual findings.
    Based on the foregoing findings, we also agree that NYU did
    not breach its duty of prudence by failing to remove the CREF Stock
    Account and TIAA Real Estate Account from the Plans. The facts
    112   Sacerdote, 328 F. Supp. 3d at 310–16.
    113   Id. at 311.
    114   Id. at 314 (internal quotation marks omitted).
    115   Id. at 311, 314–15.
    116   Id. at 311 & n.110, 314–16.
    44                                                                       18-2707-cv
    found at trial demonstrated that the Committee paid special attention
    to these funds and retained them on the strength of their performance
    against legitimate benchmarks. We agree with the district court that
    a hypothetical prudent fiduciary would have made similar choices if
    presented with these circumstances.
    VI.      Judge Forrest’s attenuated connection to NYU did not
    require disqualification
    Plaintiffs argue, as they did before Judge Torres, that Judge
    Forrest was disqualified from presiding over this case due to her
    connection to one of NYU’s board members, and that Judge Torres
    erred by denying plaintiffs’ motion for a new trial on that ground
    following Judge Forrest’s resignation from the bench. We review the
    district court’s denial of a motion for new trial for abuse of
    discretion. 117
    Federal law provides that: “Any justice, judge, or magistrate
    judge of the United States shall disqualify himself in any proceeding
    in which his impartiality might reasonably be questioned.” 118 And
    we     have      said:    “[P]hrased    differently,     would      an    objective,
    disinterested observer fully informed of the underlying facts,
    entertain significant doubt that justice would be done absent
    117Gomez v. City of New York, 
    805 F.3d 419
    , 423 (2d Cir. 2015) (per curiam).
    We note that, had plaintiffs moved before Judge Forrest for her recusal, rather than
    moving before Judge Torres for a new trial after Judge Forrest’s resignation, we
    would similarly be reviewing Judge Forrest’s decision to preside for abuse of
    discretion. S.E.C. v. Razmilovic, 
    738 F.3d 14
    , 30 (2d Cir. 2013), as amended (Nov. 26,
    2013).
    118   
    28 U.S.C. § 455
    (a).
    45                                                                         18-2707-cv
    recusal?” 119 Here, we think not. Judge Forrest’s connection to NYU
    is the sort of “remote, contingent, or speculative” relationship that “is
    not the kind of interest which reasonably brings into question a
    judge’s impartiality.” 120
    Plaintiffs argue that Judge Forrest was disqualified because of
    her employment, both before taking the bench and after leaving the
    bench, at Cravath, Swaine & Moore LLP. They assert that because
    Judge Forrest left the bench for Cravath six weeks after issuing her
    trial findings, and because Cravath’s chairman Evan Chesler, who
    was a mentor to Judge Forrest before she took the bench and would
    be a close colleague after she left, serves on the NYU Board of
    Trustees, she had a “prospective financial relationship” with NYU
    that called her impartiality into question. 121 Upon a close look, this
    argument does not hold water.
    Chesler was one of NYU’s sixty-one voting Board members,
    and he was one of more than eighty partners at Cravath. Chesler had
    no personal financial interest in this case, and his conduct is not at
    issue. Significantly, he did not sit on the NYU Board’s Retirement
    Committee. Nonetheless, plaintiffs claim that because Chesler had a
    “personal strong charitable interest in raising money for NYU’s
    endowment,” there is an appearance of bias on Judge Forrest’s part. 122
    Their theory is that Judge Forrest would want to enter judgment in
    NYU’s favor in order to protect “donor confidence in NYU’s
    119   United States v. Lovaglia, 
    954 F.2d 811
    , 815 (2d Cir. 1992).
    120   In re Drexel Burnham Lambert Inc., 
    861 F.2d 1307
    , 1313 (2d Cir. 1988).
    121   Pls.-Appellants’ Br. at 49.
    122   Id. at 53.
    46                                                          18-2707-cv
    treatment of employees and retirees” and therefore benefit Chesler’s
    personal charitable interest. 123   Plaintiffs also theorize that, as a
    personal matter, Judge Forrest “would be reluctant to strain [her]
    relationship” with Chesler “by condemning an institution to which
    Mr. Chesler has major ties and holds deep affection.” 124
    We believe that plaintiffs’ theories of impropriety are too far-
    fetched to reasonably call Judge Forrest’s impartiality into question.
    Her prospective financial relationship was with Cravath, not Chesler
    individually. Cravath was never involved in this case, and Chesler’s
    involvement is limited to his membership on a large Board of Trustees
    in his personal capacity.
    Although we agree with plaintiffs that the appearance of
    judicial impartiality is of the utmost importance, parties who dislike
    court rulings cannot later rely upon first-time assertions of tenuous,
    preexisting alleged conflicts of interest to avoid those rulings.
    Plaintiffs had similar arguments before Judge Forrest ruled against
    them, but never made those arguments. Even though plaintiffs did
    not know that Judge Forrest would leave the bench for Cravath until
    she did so, the knowledge that she had come to the bench from
    Cravath and had previously been close to Chesler at the firm was
    readily ascertainable at all stages of the litigation.       Chesler’s
    attendance at Judge Forrest’s Senate confirmation hearing was a
    matter of public record—a fact plaintiffs themselves rely upon in
    123   Id.
    124   Id.
    47                                                                        18-2707-cv
    arguing for her disqualification on appeal. 125 And yet, they made no
    attempt to move for Judge Forrest’s disqualification “at the earliest
    possible moment,” 126 as they are required to do.
    Under these circumstances, we discern no reasonable questions
    about the appearance of Judge Forrest’s impartiality. Judge Torres’s
    denial of plaintiffs’ motion for a new trial was not an abuse of
    discretion.
    *       *       *
    In sum, we hold that plaintiffs adequately pled a breach of the
    fiduciary duty of prudence in Count V’s share-class claim, and we
    cannot find the district court’s dismissal of this claim harmless on the
    present record. We therefore vacate its dismissal and reinstate the
    claim for further proceedings. We also find that the district court
    erred in denying plaintiffs’ motion to amend to name individual
    Committee members as defendants. We therefore vacate denial of
    leave to amend and vacate denial of the ensuing Rule 52(b) and 59(e)
    motions for post-trial findings concerning two of those individuals.
    125Pls.-Appellants’ Br. at 55 (citing Confirmation Hearing on Federal
    Appointments Before the S. Comm. on the Judiciary, 112th Cong. 127 (2011) (statement
    of Katherine B. Forrest, Nominee to the U.S. District Court for the Southern District
    of New York)).
    126Apple v. Jewish Hosp. & Med. Ctr., 
    829 F.2d 326
    , 333 (2d Cir. 1987); see also
    
    id. at 334
     (“[T]wo concerns prompt this rule. First, judicial resources should not
    be wasted; and, second, a movant may not hold back and wait, hedging its bets
    against the eventual outcome.”).
    48                                                        18-2707-cv
    We reject the remainder of plaintiffs’ arguments on appeal, affirming
    the trial of their claims without a jury, the use of written direct
    testimony at that trial, the entry of judgment for NYU on the tried
    claims, and the denial of their Rule 60 motion for a new trial based
    upon Judge Forrest’s alleged disqualification. We remand for further
    proceedings consistent with this opinion.
    CONCLUSION
    For the foregoing reasons, we AFFIRM in part, VACATE in
    part, and REMAND for further proceedings consistent with this
    opinion.
    18-2707
    Sacerdote v. NYU
    MENASHI, Circuit Judge, dissenting in part:
    I join the opinion of the court insofar as it affirms the judgment
    of the district court, and I dissent insofar as the court vacates and
    remands that judgment. I would not remand for further proceedings
    on the share-class claim, and I do not believe the district court abused
    its discretion in denying leave to amend the complaint.
    I
    The court appears to entertain two versions of the share-class
    claim: a categorical version (that NYU acted imprudently by
    including any retail shares) and a numerical version (that NYU acted
    imprudently by including too many retail shares). Neither version of
    the claim can prevail based on the trial record. The categorical claim
    is foreclosed by the district court’s decision that the revenue-sharing
    model was prudent—a judgment that the plaintiffs do not even
    appeal. Because retail shares enable revenue sharing, if revenue
    sharing is not imprudent, then neither is the inclusion of retail shares.
    The numerical claim is foreclosed by the uncontested determination
    that NYU followed a deliberative process for adopting the revenue-
    sharing model that includes the retail shares. ERISA requires
    prudence, meaning that an employer must follow a deliberative
    process in making its decisions, even if the decisions are imperfect.
    Here, NYU followed a deliberative process for deciding which retail
    shares to offer; therefore, NYU acted prudently even if the plaintiffs
    or the court could imagine a better ultimate decision. For these
    reasons, both versions of the share-class claim are foreclosed by the
    district court’s judgment after trial, and therefore the district court’s
    purportedly erroneous dismissal of the share-class claim was
    harmless.
    A
    Like all retirement plans, NYU’s retirement plans require the
    service of recordkeepers. Recordkeepers calculate and track account
    balances and investment performance and prepare and deliver
    enrollment materials, notices, and other materials to plan
    participants. For these services, recordkeepers must be paid. There
    are two ways to pay recordkeepers: based on the number of
    participants in the plan (a flat per-participant fee) or based on the
    assets under management (an asset-based fee).
    NYU chose the latter. NYU paid the recordkeeping fees
    through a method called “revenue sharing,” in which NYU would
    offer retail shares—rather than institutional shares—of investment
    products as investment options for the plan participants. Many of the
    investment options NYU offered are available in two classes of shares:
    retail shares and institutional shares. The only difference between the
    two classes of shares is the cost; the underlying asset is the same.
    Retail shares have higher expense ratios. 1 Institutional shares have
    lower expense ratios. Just as sellers in other industries offer wholesale
    prices to large purchasers, investment managers offer lower-priced
    “institutional” shares to large clients. As one of the largest defined-
    contribution plans in the country, NYU could obtain institutional
    shares for its plan participants.
    1 An expense ratio is the amount that an investment company charges
    investors to manage an investment portfolio.
    2
    Yet for sixty-three funds, NYU offered participants the higher-
    priced retail shares rather than the lower-priced but otherwise
    identical institutional shares. The court suggests that, based on the
    pleadings, the “reasonable inference[]” is that the inclusion of retail
    shares was due to NYU’s neglect and therefore its imprudence. Ante
    at 17. The court says that an “adequate investigation,” consisting of
    “simply reviewing the prospectus of the fund under consideration,”
    would have “uncovered” the “superior alternative investment” of
    institutional shares—and that the plaintiffs have plausibly alleged
    that NYU failed to conduct that adequate investigation. 
    Id.
    But the trial record reveals that NYU in fact investigated its
    alternatives and made a considered decision to offer retail shares
    rather than institutional shares. NYU did so for a perfectly reasonable
    reason: the excess cost of the retail shares paid for the recordkeeping
    fees under NYU’s revenue-sharing model. Under revenue sharing,
    administrative fees are not charged separately—as a flat per-
    participant fee would be—but are covered by the higher expense
    ratios of the retail-share offerings. Plan participants who buy the retail
    shares pay more, and the investment manager then transfers a portion
    of the excess expense ratios to the recordkeeper. The revenue-sharing
    model and the retail-share offerings cannot be viewed in isolation
    because the latter enables the former: revenue sharing works by
    offering higher-priced retail shares. 2
    2 The plaintiffs recognized this interdependency in their argument before
    the district court. Though the plaintiffs argue on appeal that retail shares
    might be imprudent even if revenue-sharing is prudent and permissible, the
    plaintiffs’ complaint alleged that offering retail shares was imprudent
    precisely because it enabled revenue-sharing. See, e.g., App’x 109-10
    3
    Consequently, if revenue sharing is prudent, so too is offering
    retail shares. The district court concluded that the revenue-sharing
    plan was prudent. It found that revenue-sharing arrangements were
    “common” and that NYU had “du[ly] consider[ed] … the appropriate
    pros and cons” in rejecting the plaintiffs’ favored alternative—“a flat
    per-participant model”—because the flat fee would not be “fair” to
    participants with “relatively small account balance[s]” and because
    “flat dollar fees cannot be assessed against the TIAA and CREF
    annuity account balances in the Plans.” Sacerdote v. New York Univ.,
    
    328 F. Supp. 3d 273
    , 305-06 (S.D.N.Y. 2018). The plaintiffs do not
    challenge this ruling on appeal. Therefore, because the inclusion of
    retail shares is the mechanism by which revenue sharing operates, the
    district court’s determination that the revenue-sharing model was
    prudent forecloses the categorical version of the share-class claim: if
    revenue sharing is prudent, the inclusion of retail shares must also be
    prudent.
    B
    The court rejects this justification for including retail shares—
    that “the difference in costs between retail and institutional shares
    supplies the funds for the revenue-sharing arrangement to pay the
    recordkeepers”—by suggesting that NYU violated ERISA’s standard
    of prudence because it could have bargained for a better deal on “the
    specific expense ratios of each fund that generated revenue for the
    recordkeepers.” Ante at 22. The court thus shifts its argument from
    the categorical version of the share-class claim, according to which
    (Complaint ¶ 223) (“[T]he use of these funds was tainted by the
    recordkeepers’ financial interest in including these funds in the Plans,
    which Defendant failed to consider.”).
    4
    NYU failed to investigate the possibility of institutional shares, 3 and
    defends the numerical version instead. According to the numerical
    version of the share-class claim, even if the inclusion of some number
    of retail shares would not be imprudent, sixty-three retail shares was
    too many.
    The numerical claim is also foreclosed by the district court’s
    findings at trial. NYU did not act imprudently by including sixty-
    three retail shares in its retirement plan because NYU arrived at that
    number through a deliberative process—the deliberative process
    through which it adopted the revenue-sharing model. A deliberative
    process is what ERISA requires.
    The court implies that an employer might be imprudent under
    ERISA if it makes a considered decision but fails to get the best deal
    possible. See ante at 25-26 (describing the standard for the share-class
    claim as requiring a showing that “each of the retail-class shares
    selected was necessary to pay the recordkeeping costs and none of
    them resulted in lost opportunity costs”). But ERISA’s standard of
    prudence requires the fiduciary to follow an appropriate process
    leading to its decision, not to make a perfect decision. See Pension Ben.
    Guar. Corp. (PBGC) v. Morgan Stanley Inv. Mgmt. Inc., 
    712 F.3d 705
    , 718
    (2d Cir. 2013) (noting that a claim for breach of fiduciary duty under
    ERISA depends on showing that “the process was flawed” such that
    the fiduciaries failed to conduct “an adequate investigation” and that
    it is not “necessarily sufficient to show that better investment
    3 See ante at 17 (arguing that the “plaintiffs have alleged ‘that a superior
    alternative investment was readily apparent such that an adequate
    investigation’—simply reviewing the prospectus of the fund under
    consideration—‘would have uncovered that alternative’”).
    5
    opportunities were available at the time of the relevant decisions”).
    The court itself even recognizes that ERISA’s “standard focuses on a
    fiduciary’s conduct in arriving at an investment decision, not on its
    results, and asks whether a fiduciary employed the appropriate
    methods to investigate and determine the merits of a particular
    investment.” Ante at 16-17 (quoting PBGC, 712 F.3d at 716). ERISA
    does not require an employer to obtain the best possible result as long
    as the employer acts prudently by following a deliberative process.
    A fiduciary acts imprudently when it fails to follow a
    deliberative process or fails to conduct an adequate investigation at
    all. 4 A district court case, Tibble v. Edison Int’l, No. 07-CV-5359, 
    2010 WL 2757153
     (C.D. Cal. July 8, 2010), is instructive. In Tibble, the district
    court concluded that the employer was imprudent in the selection of
    retail shares because the employer did not consider the relative
    benefits of institutional shares at all. In other words, the fiduciary
    acted imprudently because it undertook no process to investigate its
    options:
    4 The plaintiffs recognized this standard when they filed their suit. Their
    new argument on appeal—that offering sixty-three retail shares is
    imprudent even though some lesser number might not be—is not reflected
    in their complaint. In the complaint, Count V alleged that offering any retail
    shares was imprudent because no prudent fiduciary would have included
    retail shares after following a proper process: “The failure to select far
    lower-cost share classes for the Plans’ mutual fund options that are identical
    in all respects … except for cost, demonstrates that Defendant failed to
    consider the size and purchasing power of the Plans when selecting share
    classes and failed to engage in a prudent process for the selection, monitoring,
    and retention of those mutual funds.” App’x 71 (Complaint ¶ 147)
    (emphasis added). In this way, the complaint applied the correct standard
    by alleging a wholesale failure to investigate the option of institutional
    shares. But the plaintiffs could not prove those allegations at trial.
    6
    The Investments Staff simply recommended adding the
    retail share classes of these three funds without any
    consideration of whether the institutional share classes
    offered greater benefits to the Plan participants. Thus, the
    Plan fiduciaries responsible for selecting the mutual
    funds (the Investment Committees) were not informed
    about the institutional share classes and did not conduct
    a thorough investigation.
    
    Id. at *25
    . Moreover, “[i]n the one instance in which the Plan
    fiduciaries actually reviewed the different share classes of one of these
    three funds, the fiduciaries realized that it would be prudent to invest
    in the institutional share class rather than the retail share class,”
    indicating that the presence of retail shares was not the result of a
    deliberative process. 
    Id. at *26
    .
    By contrast, the trial evidence in this case shows that NYU
    followed a deliberative process through which it made a considered
    decision to offer the sixty-three retail shares to finance its
    recordkeeping fees through revenue-sharing. As an initial matter, the
    presence of institutional shares in the plan offerings in this case shows
    that, unlike the employer in Tibble, NYU was not ignorant of the
    existence of institutional shares—and it is not plausible that NYU
    failed to “simply review[] the prospectus” to “uncover[] that
    alternative.” Ante at 17. To the contrary, NYU made a considered
    decision to maintain a revenue-sharing model that required the sixty-
    three retail-share offerings. Among other things, the minutes of the
    Retirement Committee’s meeting of January 10, 2011, illustrate the
    deliberative process by which the offerings were determined:
    The Committee next discussed the availability of lower
    cost share classes as communicated to NYU by
    Vanguard, and the possibility of implementing a lower
    7
    share class in the NYU program. CLC [Cammack
    LaRhette Consulting, an outside investment adviser]
    noted that although the share class reduction seems to be
    an offer of a fee reduction, it actually offers plan sponsors
    the opportunity to decide how to structure the fees of the
    plan. That is, Vanguard would allow the plan to utilize
    the lower share classes as long as Vanguard continues to
    receive the required revenue necessary to administer the
    program. A plan sponsor could choose to use a lower
    cost share class for the program, but, because Vanguard
    would still require a certain amount of revenue for its
    services to NYU, Vanguard would require that any
    revenue lost from the lower cost share class be made up
    by either a per participant fee or direct payments from
    NYU.
    The Committee sought additional clarification as to
    whether NYU could utilize the lower share classes in its
    program. CLC confirmed that NYU could choose to
    utilize the lower share class. However, because the lower
    share class funds do not return any recordkeeping
    revenue to Vanguard, they would need to make up this
    revenue, either by issuing a per participant fee or by the
    plan sponsor paying to offset the cost. The existing share
    class in the NYU program provides 13 [basis points] of
    recordkeeping revenue to Vanguard; this would need to
    be made up by NYU or plan participants if the switch is
    made to the lower cost share class.
    The Committee agreed that since a change in share
    classes would not result in an actual fee reduction for
    plan participants, it did not make sense to change share
    classes at this time.
    App’x 959-62 (NYU Retirement Committee Meeting Minutes, Jan. 10,
    2011). When the employer weighs the relevant variables and arrives
    8
    at a considered decision—as NYU did here—the employer has not
    violated its fiduciary duty of prudence even if, in hindsight, the
    decision could have been better. See Katsaros v. Cody, 
    744 F.2d 270
    , 279
    (2d Cir. 1984) (noting that the decision must be evaluated “from the
    perspective of the ‘time of the [challenged] decision’ rather than from
    the ‘vantage point of hindsight’”). Because NYU made a considered
    decision by following a deliberative process, the plaintiffs cannot
    prevail on remand. 5
    In short, the plaintiffs have already received a trial on whether
    NYU acted prudently when it implemented the revenue-sharing
    model by offering sixty-three retail shares to plan participants. That
    trial showed that NYU followed a deliberative process that
    demonstrates prudence. Therefore, even if the district court erred in
    dismissing the share-class claim, that error was harmless because the
    trial effectively disposed of the claim. For that reason, I would not
    remand. See, e.g., Wilson v. Hanrahan, 804 F. App’x 58, 61 (2d Cir. 2020)
    (affirming dismissal of a claim because, even if the dismissal were an
    5 The court writes that “the presence of a deliberative process does not …
    suffice in every case to demonstrate prudence” because the process might
    have been “followed in bad faith” or “vary in quality.” Ante at 24. Yet there
    has been a trial about the process NYU followed to adopt the revenue-
    sharing model, and “the trial record here reflects due consideration of the
    appropriate pros and cons,” showing that “the Committee’s choice to
    employ [revenue-sharing] was [not] imprudent.” Sacerdote, 328 F. Supp. 3d
    at 306. The trial record reflects a deliberative process, not one “followed in
    bad faith” or of poor “quality.” Ante at 24.
    9
    error, “that error was harmless” because the subsequent verdict
    meant that the claim “would necessarily have failed”). 6
    II
    The court also vacates the district court’s denial of leave to
    amend the complaint because the district court relied on Rule 16(b)’s
    “good cause” standard instead of Rule 15(a)’s liberal standard. Ante
    at 29-34. That is incorrect. The district court referenced the correct
    standard when it denied leave to amend.
    The court acknowledges that “[t]he period of ‘liberal’
    amendment ends if the district court issues a scheduling order setting
    a date after which no amendment will permitted.” Id. at 32. The
    district court issued a pro forma scheduling order setting a date after
    which it would not entertain amendments without leave:
    Amended pleadings may not be filed, and no party may
    be joined, without leave of Court more than 10 days after
    the filing of this Order or the filing of a responsive
    pleading, whichever occurs first.
    6 In addition, while the district court’s findings might not strictly foreclose
    a showing of loss on remand, the district court’s findings make such a
    showing highly unlikely. The district court concluded that the plaintiffs
    failed to establish that NYU paid “excessive recordkeeping fees.” Sacerdote,
    328 F. Supp. 3d at 306-07 & n.76. Perhaps, on remand, the plaintiffs will
    offer testimony showing that NYU’s fees are higher than other institutions
    using revenue-sharing. But the plaintiffs could have introduced such
    evidence at trial to support their challenge to the revenue-sharing model.
    They did not—and do not now—indicate that they have such evidence.
    Thus, the plaintiffs have effectively obtained a trial on the issue of excessive
    fees, and there is no good reason to re-run the trial looking for the same
    evidence.
    10
    Special App’x 147. The obvious implication of this order is that the
    district court would not liberally grant leave to amend after the date
    it set.
    Today’s opinion, however, refuses to acknowledge this
    obvious implication. Instead of adhering to the ordinary meaning of
    the order, the court insists that the district court set no deadline to
    seek leave to amend with leave of court after the ten-day period. 7
    According to the court, therefore, the district court intended to cut off
    amendment as of right but for some reason still intended to liberally
    and freely grant leave to amend.
    We should not read district court orders so tendentiously. Cf.
    Kanter v. Barr, 
    919 F.3d 437
    , 454 (7th Cir. 2019) (Barrett, J., dissenting)
    (“[J]udicial opinions are not statutes, and we don’t dissect them word-
    by-word as if they were.”). The meaning of the scheduling order is
    plain. It indicates that in the normal course, no pleadings may be
    amended; however, where there is good cause, pleadings may be
    amended if the court grants leave. We have said that the “lenient
    standard of Rule 15(a)” does not apply when a party seeks to amend
    after the deadline set in a scheduling order; under those
    circumstances, a party must show “good cause” under Rule 16(b).
    Parker v. Columbia Pictures Indus., 
    204 F.3d 326
    , 340 (2d Cir. 2000). The
    language of the scheduling order effectively communicates that the
    7  Ante at 32 (“The language of the scheduling order in this case set the
    deadline (ten days) for amending without leave of court. It set no expiration
    date after which all amendments were prohibited, which would have
    triggered the stricter Rule 16(b)(4) ‘good cause’ standard thereafter.”); see
    also Reply Br. 12 (“The qualifier ‘without leave of Court’ necessarily means
    that amendments ‘with leave of Court’ were not subject to the same
    deadline.”).
    11
    district court intended to invoke that restriction. 8 “[W]ithout leave of
    the court” does not indicate that anything goes with leave of the court.
    Special App’x 147.
    This reasonable understanding of the scheduling order accords
    with the structure of Rules 15(a) and 16(b). Rule 15(a) does not
    mention scheduling orders. Scheduling orders are issued pursuant to
    Rule 16(b), which sets out the requirements for issuing scheduling
    orders. For this reason, Rule 15(a) applies in the absence of a
    scheduling order, but when a scheduling order is issued, Rule 16(b)
    8  The court misconstrues this dissent as “look[ing] beyond the plain
    language of the order.” Ante at 32. To the contrary, I think the meaning of
    the scheduling order is straightforward and I follow its plain language. The
    court, by contrast, reads the order in a highly technical fashion divorced
    from ordinary meaning. The ordinary meaning of a text includes not only
    its semantic content—that is, “the meaning of the words and phrases as
    combined by the rules of syntax and grammar”—but also its “pragmatic
    enrichment,” or “the contribution that context makes to meaning.”
    Lawrence B. Solum, Communicative Content and Legal Content, 89 NOTRE
    DAME L. REV. 479, 488 (2013). Thus, the “full communicative content”
    results from both the semantic and the pragmatic meaning. 
    Id.
     As a
    pragmatic matter, sometimes “what is said implicitly includes something
    else that is closely related. For example, if I say ‘Jack and Jill are married,’
    this frequently communicates some additional information, which could
    have been stated explicitly as follows: ‘Jack and Jill are married [to each
    other].’” Lawrence B. Solum, Contractual Communication, 133 HARV. L. REV.
    F. 23, 28 (2019) (describing “impliciture”). Here, the district court’s order—
    dictating that amended pleadings may not be filed without leave after ten
    days—communicates that the district court does not intend to liberally
    grant leave to amend after that deadline. The court improperly seizes on
    the order’s literal semantic meaning to the exclusion of its pragmatic
    meaning. But see Amy Coney Barrett, Assorted Canards of Contemporary Legal
    Analysis: Redux, 70 CASE W. RES. L. REV. 855, 859 (2020) (“[T]extualism isn’t
    a mechanical exercise, but rather one involving a sophisticated
    understanding of language as it’s actually used in context.”).
    12
    applies. We have explained that “the Rule 16(b) ‘good cause’
    standard, rather than the more liberal standard of Rule 15(a), governs
    a motion to amend filed after the deadline a district court has set for
    amending the pleadings” because, “if we considered only Rule 15(a)
    without regard to Rule 16(b), we would render scheduling orders
    meaningless and effectively would read Rule 16(b) and its good cause
    requirement out of the Federal Rules of Civil Procedure.” Parker, 
    204 F.3d at 340
     (alteration omitted). Here, the district court issued a Rule
    16(b) scheduling order, and this court finds “nothing defective in the
    order itself.” Ante at 33. Yet the court holds that even though the
    district court properly issued a scheduling order pursuant to Rule
    16(b), it nevertheless abused its discretion by following the “good
    cause” standard of Rule 16(b) rather than the liberal standard of Rule
    15(a). In doing so, the court renders the scheduling order
    meaningless; in its view, the district court was obliged to freely permit
    amendment despite its issuance of a Rule 16(b) scheduling order. I
    would instead adhere to the rule that “a district court does not abuse
    its discretion in denying leave to amend the pleadings after the
    deadline set in the scheduling order where the moving party has
    failed to establish good cause.” Parker, 
    204 F.3d at 340
    .
    The    court’s   decision    today    could    have    unexpected
    consequences. The scheduling order in question was one of Judge
    Forrest’s pro forma scheduling orders. She appears to have used it
    regularly, and perhaps other judges have used the same or similar
    language. Are all those orders now defective? In light of today’s
    opinion, district judges must beware. Instead of reading the
    scheduling order in the stilted fashion on which the court insists, I
    would read it reasonably and affirm the judgment. Cf. Lombardo v. City
    of St. Louis, 
    141 S. Ct. 2239
    , 2242 (2021) (Alito, J., dissenting) (“If we
    13
    expect the lower courts to respect our decisions, we should not twist
    their opinions to make our job easier.”).
    ***
    The share-class claim is foreclosed by the district court’s
    judgment after trial. The categorical version of the claim necessarily
    fails because if revenue sharing is not imprudent, neither is the
    inclusion of retail shares. The numerical version of the claim
    necessarily fails because the deliberative process by which NYU
    adopted its revenue-sharing model satisfies ERISA’s duty of
    prudence. I therefore would not remand the case because the
    dismissal of the share-class claim, even if erroneous, was harmless.
    The district court also did not abuse its discretion in denying leave to
    amend. Accordingly, I dissent in part.
    14
    

Document Info

Docket Number: 18-2707-cv

Filed Date: 8/16/2021

Precedential Status: Precedential

Modified Date: 8/16/2021

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