Dennis Hecker v. Deere & Company ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 07-3605 & 08-1224
D ENNIS H ECKER, et al.,
Plaintiffs-Appellants,
v.
D EERE & C OMPANY, F IDELITY M ANAGEMENT
T RUST C O ., and F IDELITY M ANAGEMENT
& R ESEARCH C O .,
Defendants-Appellees.
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 06-C-719-S—John C. Shabaz, Judge.
A RGUED S EPTEMBER 4, 2008—D ECIDED F EBRUARY 12, 2009
Before M ANION, W OOD , and T INDER, Circuit Judges.
W OOD , Circuit Judge. Even before the stock market
began its precipitous fall in early October 2008, litigation
over alleged mismanagement of defined contribution
pension plans was becoming common. This type of litiga-
tion received a boost when, in LaRue v. DeWolff, Boberg &
Associates, Inc., 128 S.Ct. 1020 (2008), the Supreme Court
2 Nos. 07-3605 & 08-1224
held that “a participant in a defined contribution pension
plan [may] sue a fiduciary whose alleged misconduct
impaired the value of plan assets in the participant’s
individual account.” 128 S.Ct. at 1022. Section 502(a)(2) of
the Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. § 1132(a), provides the basis for
such an action.
The present case requires us to look further into two
questions: first, how broadly does the concept of
actionable misconduct sweep, and second, does someone
who serves as the manager and investment advisor for a
401(k) plan, or for some of the plan’s investment options,
owe fiduciary duties to the sponsor’s employees. These
questions arise in a lawsuit brought by some employees
of Deere & Company, which sponsors two 401(k) plans
relevant to this case. Fidelity Management Trust
Company (“Fidelity Trust”) is the directed trustee and
recordkeeper for the Deere plans; it also manages two of
the investment vehicles available to plan participants.
Fidelity Management & Research Company (“Fidelity
Research”) is the investment advisor for the mutual
funds offered as investment options under Deere’s plans.
Named plaintiffs Dennis Hecker, Jonna Duane, and
Janice Riggins (“the Hecker group”), seeking to sue both
on their own behalf and for a class of plan participants,
asserted in their second amended complaint (“Complaint”)
that Deere violated its fiduciary duty under ERISA by
providing investment options that required the payment
of excessive fees and costs and by failing adequately to
disclose the fee structure to plan participants. The Hecker
group also sued Fidelity Trust and Fidelity Research on
Nos. 07-3605 & 08-1224 3
the theory that they were functional fiduciaries for the
class and thus they too were liable under § 1132(a). All
three defendants moved to dismiss for failure to state a
claim, see FED. R. C IV. P. 12(b)(6). The district court con-
cluded that the case could be resolved at that preliminary
stage, granted the motions to dismiss without resolving
the class certification motion, and entered judgment for
the defendants. Later, the court also denied plaintiffs’
motion under Rule 59(e). We conclude that the district
court correctly found that plaintiffs failed to state a
claim against any of the defendants, and we therefore
affirm the district court’s judgment.
I
A
In 1990, Deere engaged Fidelity Trust to serve as trustee
of two of the 401(k) plans (“the Plans”) it offers to its
employees. The Plans, everyone agrees, are subject to
ERISA, and the three named plaintiffs are participants
in them. Under its arrangement with Deere, Fidelity Trust
was required to advise Deere on what investments to
include in the Plans, to administer the participants’
accounts, and to keep records for the Plans.
Each Plan offered a generous choice of investment
options for Plan participants: the menu included 23
different Fidelity mutual funds, two investment funds
managed by Fidelity Trust, a fund devoted to
Deere’s stock, and a Fidelity-operated facility called
BrokerageLink, which gave participants access to some
4 Nos. 07-3605 & 08-1224
2,500 additional funds managed by different companies.
Fidelity Research advised the Fidelity mutual funds
offered by the Plans. Each plan participant decided for
herself where to put her 401(k) dollars; the only limita-
tion was that the investment vehicle had to be one
offered by the Plan. Each fund included within the
Plans charged a fee, calculated as a percentage of assets
the investor placed with it. The Hecker group alleges
that Fidelity Research shared its revenue, which it
earned from the mutual fund fees, with Fidelity Trust.
Fidelity Trust in turn compensated itself through those
shared fees, rather than through a direct charge to Deere
for its services as trustee. As the Hecker group sees it, this
led to a serious—in fact, impermissible—lack of transpar-
ency in the fee structure, because the mutual fund fees
were devoted not only to the (proper) cost of managing
the funds, but also to the (improper) cost of admin-
istering Deere’s 401(k) plans.
Distressed primarily by the fee levels, the Hecker
group filed this suit individually and on behalf of a class
against Deere, Fidelity Trust, and Fidelity Research,
asserting that all three defendants had breached their
duties under ERISA. The second amended complaint is
the version on which the district court based its ruling.
Paragraph 11 summarizes the plaintiffs’ theory as
follows: ”. . . the fees and expenses paid by the Plans, and
thus borne by Plan participants, were and are unrea-
sonable and excessive; not incurred solely for the benefit
of the Plans and the Plans’ participants; and undisclosed
to participants. By subjecting the Plans and the
participants to these excessive fees and expenses, and by
Nos. 07-3605 & 08-1224 5
other conduct set forth below, the Defendants violated
their fiduciary obligations under ERISA.”
As we have already noted, Deere appointed Fidelity
Trust to be trustee of the Plans. Fidelity Trust also per-
formed administrative tasks for the Plans and managed
two of the investment options available to the partic-
ipants. Deere and Fidelity Trust agreed that Deere would
limit the selections available to Deere’s employees to
Fidelity funds, with the exception of the Deere Common
Stock Fund and some other minor guaranteed investment
contracts. Fidelity Research served as the investment
advisor for 23 out of the 26 investment options in the
Plans. None of the Fidelity Research funds operated
exclusively for Deere employees; all were available on
the open market for the same fee. The Complaint alleges
that Fidelity Research “maintains an active Revenue
Sharing program, charging more for its services than it
expects to keep in order to have additional monies with
which to pay its affiliates and business partners.” Those
charges, plaintiffs allege, were excessive and unreason-
able. Deere, in their view, failed to monitor Fidelity
Trust’s actions properly and failed to keep the participants
properly informed.
A few more details about the Plans themselves are
helpful. One plan was called the Savings & Investment
Plan, or SIP, and the other was the Tax Deferred Savings
Plan, or TDS. For all practical purposes, they operated
the same way. Qualified employees could contribute up
to a certain amount of their pre-tax earnings, and Deere
would match those contributions in varying percentages
6 Nos. 07-3605 & 08-1224
up to 6%. Deere also made profit-sharing contributions
on behalf of some participants. All participants were
fully vested from the start with respect to their own
contributions and were vested after three years’ service
with respect to the Deere contribution. By the end of
2005, the SIP had more than $2 billion in assets; more
than $1.3 billion of that was held in Fidelity retail mutual
funds. The TDS had more than $500 million in assets
by that time, $244 million of which were held in Fidelity
retail mutual funds.
B
Almost twenty years ago, the Supreme Court observed
that “ERISA abounds with the language and terminology
of trust law.” Firestone Tire and Rubber Co. v. Bruch, 489
U.S. 101, 110 (1989). The Act’s fiduciary responsibility
provisions, found at 29 U.S.C. §§ 1101-14, are central
to the Hecker group’s case. Plaintiffs begin with
§ 1103(c)(1), which says that, except as provided in
certain other parts of the statute, “the assets of a plan
shall never inure to the benefit of any employer and
shall be held for the exclusive purposes of providing
benefits to participants in the plan and their beneficiaries
and defraying reasonable expenses of administering the
plan.” Plan fiduciaries must discharge their duties “solely
in the interest of the participants and beneficiaries.” 29
U.S.C. § 1104(a)(1). Section 1104 recognizes an exception
to that duty, however, for plans that delegate control over
assets directly to the participant or beneficiary. The key
language reads as follows:
Nos. 07-3605 & 08-1224 7
(c) Control over assets by participant or beneficiary
(1)(A) In the case of a pension plan which provides for
individual accounts and permits a participant or
beneficiary to exercise control over the assets in his
account, if a participant or beneficiary exercises
control over the assets in his account (as determined
under regulations of the Secretary)--
(i) such participant or beneficiary shall not be
deemed to be a fiduciary by reason of such exer-
cise, and
(ii) no person who is otherwise a fiduciary shall
be liable under this part for any loss, or by reason
of any breach, which results from such partici-
pant’s or beneficiary’s exercise of control, except
that this clause shall not apply in connection
with such participant or beneficiary for any black-
out period during which the ability of such par-
ticipant or beneficiary to direct the investment
of the assets in his or her account is suspended
by a plan sponsor or fiduciary.
29 U.S.C. § 1104(c)(1). Finally, the Hecker group relies on
29 U.S.C. § 1105(a), which provides that one fiduciary
may be liable for breaches of fiduciary duty committed
by another fiduciary under specified circumstances.
C
The district court disposed of the case on the pleadings,
as we noted above. In evaluating the case, the court had
8 Nos. 07-3605 & 08-1224
to decide whether the Complaint included “enough facts
to state a claim to relief that is plausible on its face.”
Khorrami v. Rolince, 539 F.3d 782, 788 (7th Cir. 2008) (quot-
ing Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007));
see Davis v. Indiana State Police, 541 F.3d 760, 763-64 (7th
Cir. 2008). Even after Twombly, courts must still approach
motions under Rule 12(b)(6) by “constru[ing] the com-
plaint in the light most favorable to the plaintiff, accepting
as true all well-pleaded facts alleged, and drawing all
possible inferences in her favor.” Tamayo v. Blagojevich, 526
F.3d 1074, 1081 (7th Cir. 2008).
Looking first at plaintiffs’ claims against Deere, the
district court found that the company had complied
with all applicable disclosure requirements found in
ERISA. It saw nothing in the statute or regulations that
required Deere to disclose the fact that Fidelity Research
was sharing part of the fees it received with its corporate
affiliate, Fidelity Trust. Materials furnished to plan par-
ticipants did disclose the expenses actually paid to the
fund managers, as plaintiffs implicitly conceded by
alleging that the same fees were charged to all retail fund
customers. The district court found it unremarkable that
those fees included some profit margin for Fidelity Re-
search. It also thought it “unlikely” that the fund sponsor
(Deere) would be able to control the way in which the
fund manager distributed its profits, particularly among
related corporations. The court also noted that there
were proposals to amend the regulations so that revenue
sharing arrangements would be disclosed. See Proposed
Rules, Department of Labor, Employee Benefits Security
Administration, 71 Fed. Reg. 41,392, 41,394 (July 21, 2006).
Nos. 07-3605 & 08-1224 9
This, it thought, made it apparent that the present rules
imposed no such obligation. Finally, the court rejected the
plaintiffs’ argument that disclosure was required as a
general matter of ERISA law.
The Hecker group also asserted that Deere and the
Fidelity companies breached their fiduciary obligations
by selecting for the Plans investment options with unrea-
sonably high fees. ERISA, the court acknowledged, re-
quires a fiduciary to discharge its 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.” 29 U.S.C. § 1104(a)(1)(B). But (as we already
have observed) the statute also provides a “safe harbor”
for plans that permit the participant to exercise control
over his or her own assets. 29 U.S.C. § 1104(c). Assuming
that the “safe harbor” provision establishes an
affirmative defense, the court held that the defendants
could take advantage of the defense only if the facts
asserted in the Complaint established all of its necessary
elements, as set forth in 29 C.F.R. § 2550.404c-1. It then
concluded that the defendants had met that burden,
explaining itself as follows:
Participants could choose to invest in twenty
primary mutual funds and more than 2500 others
through BrokerageLink. All of these funds were also
offered to investors in the general public so expense
ratios were necessarily set to attract investors in the
marketplace. The expense ratios among the twenty
10 Nos. 07-3605 & 08-1224
primary funds ranges from just over 1% to as low as
.07%. Unquestionably, participants were in a position
to consider and adjust their investment strategy
based in part on the relative cost of investing in these
funds. It is untenable to suggest that all of the more
than 2500 publicly available investment options
had excessive expense ratios. The only possible con-
clusion is that to the extent participants incurred
excessive expenses, those losses were the result of
participants exercising control over their investments
within the meaning of the safe harbor provision.
Last, the district court held that since plaintiffs had
failed to state a claim against Deere for breach of fiduciary
duty either for failure to disclose or for the selection
of investment options, Fidelity could not be held liable
either. Moreover, it added, neither Fidelity defendant
had fiduciary responsibilities with respect to either of the
tasks plaintiffs targeted. Under the trust agreements,
Deere had the sole responsibility for the selection of plan
investment funds. Thus, even if the Fidelity defendants
were fiduciaries for some purposes, they were not fidu-
ciaries for the purpose of making plan investment deci-
sions.
After the court dismissed their case, plaintiffs moved
for reconsideration under F ED. R. C IV. P. 59(e), asserting
that they had new evidence that would establish (1) the
defendants’ breach of duty in assessing fees and
choosing investment options, (2) the fact that the defen-
dants’ failure to provide information about revenue
sharing was an independent violation of ERISA, and (3) the
Nos. 07-3605 & 08-1224 11
impropriety of the court’s evaluating the “safe harbor”
defense on a motion to dismiss. Finding nothing new in
their arguments or evidence, the court denied the mo-
tion. Later, it awarded costs in the amount of $54,396.57 for
Deere and $163,814.43 for the two Fidelity defendants. This
appeal followed. In addition to briefs from the parties, the
court has had the benefit of amicus curiae briefs filed by the
Secretary of Labor (supporting plaintiffs) and by a consor-
tium composed of the ERISA Industry Committee, the
National Association of Manufacturers, and the American
Benefits Council (supporting defendants).
II
The Hecker group has offered numerous reasons for
sending this case back to the district court. For conve-
nience, we have organized the issues as follows: (1) did the
district court commit a procedural error warranting
reversal by considering documents outside the
pleadings; (2) were the Fidelity defendants “functional”
fiduciaries of the Plans with respect to the selection of
investment options, the structure of the fees, or the pro-
vision of information regarding the fee structure; (3) did
Deere or the Fidelity defendants breach any fiduciary
duties toward plaintiffs, and if so, are they protected by
the § 1104(c) affirmative defense; (4) did the district court
abuse its discretion in denying plaintiffs’ Rule 59(e)
motion; and (5) did the court err in its costs award to the
defendants, either by giving excessive costs or by in-
cluding items that are not authorized by 28 U.S.C. § 1920?
12 Nos. 07-3605 & 08-1224
1. Materials Outside Complaint
Deere’s motion to dismiss under Rule 12(b)(6) included
a number of attached documents: seven Summary Plan
Descriptions (“SPDs”), two SPD supplements, the Trust
Agreement between Fidelity Trust and Deere, and three
fund prospectuses that it had retrieved from Fidelity’s
website. According to plaintiffs, this amounted to some
900 pages of material. Fidelity’s motion added two more
trust agreements to the mix. Plaintiffs objected to the
introduction of these documents, arguing that they were
“matters outside the pleadings” within the meaning of
Rule 12(d), and thus that the court should have con-
verted the two motions into motions for summary judg-
ment. The district court, however, found that these were
all documents to which the Complaint had referred, that
the documents were concededly authentic, and that
they were central to the plaintiffs’ claim. See Tierney v.
Vahle, 304 F.3d 734, 738 (7th Cir. 2002). If the court erred
in this respect, we would be able to dispense with most of
the rest of this appeal, since it would be necessary to
remand on this basis alone.
This court has been relatively liberal in its approach to
the rule articulated in Tierney and other cases. See, e.g.,
Wright v. Associated Ins. Cos., 29 F.3d 1244, 1248 (7th Cir.
1994) (upholding consideration of an agreement quoted
in the complaint and central to the question whether a
property interest existed for purposes of 42 U.S.C. § 1983);
Venture Associates v. Zenith Data Sys., 987 F.2d 429, 431 (7th
Cir. 1992) (admitting letters, to which the complaint
referred, that established the parties’ contractual relation-
Nos. 07-3605 & 08-1224 13
ship); Ed Miniat, Inc. v. Globe Life Ins. Group, Inc., 805
F.2d 732, 739 (7th Cir. 1989) (permitting reference to a
welfare plan referred to in the complaint in order to
decide whether the plan qualifies under ERISA). Plaintiffs
see the case of Travel Over the World v. Kingdom of Saudi
Arabia, 73 F.3d 1423 (7th Cir. 1996), as a counterexample,
but we do not read it that way. In Travel Over the World,
the plaintiffs contested the authenticity of the document
that defendants wanted to use; here, they do not. Although
they argue that certain statements in the documents
are untrue (such as the representation that Deere pays
all administrative costs associated with the Plans),
the district court took plaintiffs’ point of view on all
such disputes. Deere and the two Fidelity defendants
offered the documents only to show what they disclosed
to plaintiffs; nothing plaintiffs have argued explains
why the documents could not be used in that limited way.
For the purpose to which they were put, the SPDs, the
SPD supplements, and the Trust Agreement fit within the
exception to Rule 12(d)’s general instruction. The Com-
plaint explicitly refers to the SPDs and the Trust Agree-
ment, and both are central to plaintiffs’ case: the SPDs
reveal the disclosures that Deere made to the Plan partici-
pants, and the Trust Agreement throws light on the
relationship between Fidelity Trust and Deere. The sup-
plements to the SPDs, while not mentioned separately in
the Complaint, serve much the same purpose as the orig-
inals. The Complaint did not mention the prospectuses,
but these were publicly available documents and
thus relevant to the question of disclosure. In a similar
situation, the Second Circuit held that a court could take
14 Nos. 07-3605 & 08-1224
notice of a prospectus in a securities fraud case. See
I. Meyer Pincus & Assocs., P.C. v. Oppenheimer & Co., 936
F.2d 759, 762 (2d Cir. 1991); see also Menominee Indian
Tribe of Wisc. v. Thompson, 161 F.3d 449, 456 (7th Cir. 1998)
(permitting consideration on a motion for judgment on
the pleadings under Rule 12(c) of historical papers re-
lating to negotiation of a treaty with Native American
Tribe). Taking into account the limited purpose to which
the prospectuses were put here, the district court acted
within its discretion when it chose not to convert the
defendants’ motion under Rule 12(b)(6) to a motion for
summary judgment.
2. Functional Fiduciaries
Before we delve into the question whether any of the
defendants breached a fiduciary duty, we must identify
who owed such duties to plaintiffs with respect to
the actions at issue here. Deere does not contest the fact
that it owed some fiduciary duties to the plan partic-
ipants; it argues instead that plaintiffs have too ex-
pansive a concept of its fiduciary responsibilities and, in
any event, that it did not breach any fiduciary duty.
Fidelity Trust and Fidelity Research, in contrast, argue
that they were not fiduciaries at all. The Hecker group
appears to concede that neither Fidelity entity was a
named fiduciary under the Trust Agreement. It argues,
however, that one or both of the Fidelity entities func-
tioned as a fiduciary under 29 U.S.C. § 1002(21)(A). In
order to find that they were “functional fiduciaries,” we
must look at whether either Fidelity Trust or Fidelity
Nos. 07-3605 & 08-1224 15
Research exercised discretionary authority or control over
the management of the Plans, the disposition of the
Plans’ assets, or the administration of the Plans.
The Hecker group first argues that Fidelity Trust exer-
cised the necessary control to confer fiduciary status by
its act of limiting Deere’s selection of funds through the
Trust Agreement to those managed by Fidelity Research.
But what if it did? Plaintiffs point to no authority that
holds that limiting funds to a sister company auto-
matically creates discretionary control sufficient for
fiduciary status. To the contrary, as Fidelity points out,
there are cases holding that a service provider does not
act as a fiduciary with respect to the terms in the service
agreement if it does not control the named fiduciary’s
negotiation and approval of those terms. Chi. Dist. Council
of Carpenters Welfare Fund v. Caremark, Inc., 474 F.3d 463(7th Cir. 2007); Shulist v. Blue Cross of Iowa, 717 F.2d 1127(7th Cir. 1983). In any event, the Trust Agreement gives
Deere, not Fidelity Trust, the final say on which invest-
ment options will be included. The fact that Deere may
have discussed this decision, or negotiated about it, with
Fidelity Trust does not mean that Fidelity Trust had
discretion to select the funds for the Plans.
Plaintiffs retort that, notwithstanding the language of
the Trust Agreement, Fidelity Trust exercised de facto
control over the selection of the funds and Deere rubber-
stamped its recommendations. That is not, however,
what the Complaint alleges. It asserts instead that
Fidelity Trust “played a role in the selection of investment
options,” Complaint ¶ 21, and it concedes that Deere had
16 Nos. 07-3605 & 08-1224
“final authority,” id. Merely “playing a role” or furnishing
professional advice is not enough to transform a com-
pany into a fiduciary. Pappas v. Buck Consultants, Inc., 923
F.2d 531, 535 (7th Cir. 1991); Farm King Supply, Inc. Inte-
grated Profit Sharing Plan & Trust v. Edward D. Jones & Co.,
884 F.2d 288, 292 (7th Cir. 1989). Many people help
develop and manage benefit plans—lawyers and accoun-
tants, to name two groups—but despite the influence of
these professionals we do not consider them to be Plan
fiduciaries. This is not a case like Johnson v. Georgia, 19
F.3d 1184, 1189 (7th Cir. 1994), on which plaintiffs
rely, because in that case the fiduciary both managed a
defined-benefits plan and had ultimate authority over
the selection of funds. Nor do we find plaintiffs’ reference
to the district court’s decision in Haddock v. Nationwide Fin.
Servs., 419 F.Supp. 2d 156 (D. Conn. 2006), helpful or
persuasive, since the service provider in that case had
the authority to delete and substitute mutual funds
from the plan without seeking approval from the named
fiduciary.
There is an important difference between an assertion
that a firm exercised “final authority” over the choice of
funds, on the one hand, and an assertion that a firm
simply “played a role” in the process, on the other hand.
The Complaint on which the Hecker group proceeded
made the latter allegation, not the former. It gave no
notice to the defendants that they would be required to
defend on the former basis. For that reason, we reject
plaintiffs’ tardy effort to present the de facto fiduciary
argument, and we make no comment on the possible
scope of the “functional fiduciary” concept.
Nos. 07-3605 & 08-1224 17
Plaintiffs also argue that Fidelity Research, and possibly
Fidelity Trust, exercised discretion over the disposition
of the Plans’ assets by determining how much revenue
Fidelity Research would share with Fidelity Trust. The
Fidelity defendants (with the support in this instance of
the Department of Labor) respond that the fees that
Fidelity Research collected were not Plan assets under
29 U.S.C. § 1101(b)(1). The fees were drawn from the
assets of the mutual funds in question, which, as the
statute provides, are not assets of the Plans:
In the case of a plan which invests in any security
issued by a [mutual fund], the assets of such plan
shall be deemed to include such security but shall not,
solely by reason of such investment, be deemed to
include any assets of such [mutual fund].
Id. Once the fees are collected from the mutual fund’s
assets and transferred to one of the Fidelity entities, they
become Fidelity’s assets—again, not the assets of the
Plans. See also Caremark, 474 F.3d at 476 n.6.
We conclude that the Complaint fails to state a claim
against either Fidelity Trust or Fidelity Research based
on the supposition that either one is a “functional fidu-
ciary.” Plaintiffs’ effort to proceed against these com-
panies thus fails at the threshold.
3. Fiduciary Duties and the Safe Harbor Defense
a. Violation of Fiduciary Duty
We are thus left with the claim against Deere. Plaintiffs’
allegations can be distilled into two assertions: (1) Deere
18 Nos. 07-3605 & 08-1224
breached its fiduciary duty by not informing the partici-
pants that Fidelity Trust received money from the
fees collected by Fidelity Research, and (2) Deere impru-
dently agreed to limit the investment options to
Fidelity Research funds and therefore offered only in-
vestment options with excessively high fees. We analyze
each claim in turn, beginning with the fee distribution.
Critical to plaintiffs’ case is the proposition that
Deere and Fidelity had a duty to disclose the revenue-
sharing arrangements that existed between Fidelity
Trust and Fidelity Research. They point to a number of
facts in support of their theory. From 1991 through 2007,
Deere and Fidelity Trust amended their agreement 27
times to add new Fidelity services and products and to
adjust the administrative costs that Deere paid up front
to Fidelity Trust. Those costs decreased over time, as
Fidelity Trust shifted to a system whereby it recovered
its costs from the Deere participants in the same way as
it did from outside participants—that is, Fidelity
Research would assess asset-based fees against the
various mutual funds, and then transfer some of the
money it collected to Fidelity Trust.
The Hecker group’s case depends on the proposition
that there is something wrong, for ERISA purposes, in
that arrangement. The district court found, to the
contrary, that such an arrangement (assuming at this
stage that the Complaint accurately described it) violates
no statute or regulation. We agree with the district court.
Plaintiffs feel misled because the SPD supplements left
them with the impression that Deere was paying the
Nos. 07-3605 & 08-1224 19
administrative costs of the Plans, even though in reality
the participants were paying through the revenue
sharing system we have described. But, as Deere and
Fidelity both point out and the Complaint acknowledges,
the participants were told about the total fees imposed
by the various funds, and the participants were free to
direct their dollars to lower-cost funds if that was
what they wished to do. The SPD supplements told
participants to look to the fund prospectuses for
detailed information on fund-level expenses, and the
prospectuses in fact furnished that information. In its
brief, Deere points to the Magellan Fund Prospectus as
an example. That prospectus broke down the Fund’s total
annual operating expenses paid from fund assets (0.59%)
as follows: management fee, 0.39%; distribution or
service fees, none; other expenses, 0.20%.
The fact that there were no additional fees borne by
Deere is immaterial. While Deere may not have been
behaving admirably by creating the impression that it was
generously subsidizing its employees’ investments by
paying something to Fidelity Trust when it was doing
no such thing, the Complaint does not allege any
particular dollar amount that was fraudulently stated.
How Fidelity Research decided to allocate the monies
it collected (and about which the participants were
fully informed) was not, at the time of the events here,
something that had to be disclosed. It follows, therefore,
that the Hecker group failed to state a claim against
Deere based on the revenue-sharing arrangement and
the lack of disclosure about it.
20 Nos. 07-3605 & 08-1224
These conclusions go a long way toward disposing of
plaintiffs’ claims that the non-disclosure of the revenue-
sharing breached the general fiduciary duty imposed
on Deere by 29 U.S.C. § 1104(a)(1). Before such a viola-
tion can be found, there must be either an intentionally
misleading statement, see Varity Corp. v. Howe, 516 U.S.
489, 505 (1996), or a material omission, see Anweiler v.
American Elec. Power Serv. Corp., 3 F.3d 986, 992 (7th Cir.
1993). The Complaint does not allege that the representa-
tion in the SPD supplement—that Deere paid the ad-
ministration expenses for the Plans—was an inten-
tional misrepresentation. To the contrary, plaintiffs have
since submitted evidence with their Rule 59(e) motion
showing that Deere believed that Fidelity Trust’s services
were free.
The only question is thus whether the omission of
information about the revenue-sharing arrangement is
material. Deere disclosed to the participants the total fees
for the funds and directed the participants to the fund
prospectuses for information about the fund-level ex-
penses. This was enough. The total fee, not the internal,
post-collection distribution of the fee, is the critical figure
for someone interested in the cost of including a certain
investment in her portfolio and the net value of that
investment. Plaintiffs argue that some investors may
have expected better management from a fund with a
higher fee, but, as the Magellan Fund Prospectus illus-
trates, participants had access to information about man-
agement expenses as a percentage of fund assets. The
later distribution of the fees by Fidelity Research is not
information the participants needed to know to keep
Nos. 07-3605 & 08-1224 21
from acting to their detriment. See Boxerman v. Wal-Mart
Stores, Inc., 226 F.3d 574, 589-91 (7th Cir. 2000). The infor-
mation is thus not material, and its omission is not a
breach of Deere’s fiduciary duty.
We turn next to plaintiffs’ contention that Deere
violated its fiduciary duty by selecting investment options
with excessive fees. In our view, the undisputed facts
leave no room for doubt that the Deere Plans offered a
sufficient mix of investments for their participants. Thus,
even if, as plaintiffs urge, there is a fiduciary duty on
the part of a company offering a plan to furnish an ac-
ceptable array of investment vehicles, no rational trier
of fact could find, on the basis of the facts alleged in this
Complaint, that Deere failed to satisfy that duty. As the
district court pointed out, there was a wide range of
expense ratios among the twenty Fidelity mutual funds
and the 2,500 other funds available through BrokerageLink.
At the low end, the expense ratio was .07%; at the high
end, it was just over 1%. Importantly, all of these funds
were also offered to investors in the general public, and
so the expense ratios necessarily were set against the
backdrop of market competition. The fact that it is
possible that some other funds might have had even
lower ratios is beside the point; nothing in ERISA requires
every fiduciary to scour the market to find and offer
the cheapest possible fund (which might, of course, be
plagued by other problems).
As for the allegation that Deere improperly limited the
investment options to Fidelity mutual funds, we find no
statute or regulation prohibiting a fiduciary from selecting
22 Nos. 07-3605 & 08-1224
funds from one management company. A fiduciary must
behave like a prudent investor under similar circum-
stances; many prudent investors limit themselves to
funds offered by one company and diversify within the
available investment options. As we have noted several
times already, the Plans here directly offered 26 invest-
ment options, including 23 retail mutual funds, and
offered through BrokerageLink 2,500 non-Fidelity funds.
We see nothing in the statute that requires plan
fiduciaries to include any particular mix of investment
vehicles in their plan. That is an issue, it seems to us, that
bears more resemblance to the basic structuring of a
Plan than to its day-to-day management. Compare
Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 443-44 (1999);
Lockheed Corp. v. Spink, 517 U.S. 882, 890 (1996). We there-
fore question whether Deere’s decision to restrict the
direct investment choices in its Plans to Fidelity
Research funds is even a decision within Deere’s
fiduciary responsibilities. On the assumption that it is,
however, we nonetheless conclude that taking the al-
legations in the Complaint in the light most favorable
to plaintiffs, no breach of a fiduciary duty on Deere’s
part has been described.
b. Safe Harbor Defense
Even if we have underestimated the fiduciary duties
that Deere had to its plan participants, the district court’s
judgment in favor of the defendants must stand if that
court correctly decided that the safe harbor provided in
29 U.S.C. § 1104(c) is available to them. This was the
Nos. 07-3605 & 08-1224 23
ground on which the district court primarily relied. If the
defense is available, it provides an alternate ground for
affirmance.
Although ERISA normally imposes a fiduciary duty on
plan managers, the statute modifies that rule for plans
that provide for individual accounts and allow a partici-
pant or beneficiary “to exercise control over the assets
in his account.” 29 U.S.C. § 1104(c)(1). First, the partic-
ipant must have the right to exercise independent
control over the assets in her account and in fact
exercise such control. Next, the participant must be able
to choose “from a broad range of investment alterna-
tives,” 29 C.F.R. § 2550.404c-1(b)(1)(ii). As we noted in
Jenkins v. Yager, 444 F.3d 916 (7th Cir. 2006), “prominent
among [the conditions a plan must meet] is that it must
provide at least three investment options and it must
permit the participants to give instructions to the plan
with respect to those options at least once every three
months. 29 C.F.R. § 2550.404c-1(b)(2)(c).” 444 F.3d at 923.
Third, the participant must be given or have the oppor-
tunity to obtain “sufficient information to make in-
formed decisions with regard to investment alter-
natives available under the plan.” 29 C.F.R.
§ 2550.404c-1(b)(2)(i)(B). The regulation sets forth nine
criteria that must be met before the participant may be
considered to have sufficient investment information.
Id. Those criteria call for such things as clear labeling of
the plan as § 1104(c) instrument, a description of the
investment alternatives available, identification of desig-
nated investment managers, explanation of how to give
investment instructions, a description of “any transaction
24 Nos. 07-3605 & 08-1224
fees and expenses which affect the participant’s . . . balance
in connection with purchases or sales of interests,” id.
§ 2550.404c-1(b)(2)(i)(B)(1)(v), relevant names and ad-
dresses of plan fiduciaries, special rules for employer
securities, special rules for investment alternatives
subject to the Securities Act of 1933, and materials related
to voting, tender, or other rights incidental to the
holdings in the account. Other parts of the regulation
emphasize that the fiduciary must furnish extensive
information on the operating expenses of the investment
alternatives, copies of relevant financial information, and
other similar materials. Id. § 2550.404c-1(b)(2)(i)(B)(2).
The regulation does not require plans to offer only cost-
free investment vehicles. It recognizes that a plan “does not
fail to provide an opportunity for a participant or benefi-
ciary to exercise control over his individual account
merely because it . . . imposes charges for reasonable
expenses.” Id. § 2550.404c-1(b)(2)(ii)(A). Procedures
must be in place, however, to inform participants of the
actual expenses incurred with respect to their individual
accounts. Id. Other parts of the regulation address the
required frequency of investment instructions. Finally
(for our purposes), the regulation provides that independ-
ent control will not be found if a plan fiduciary has con-
cealed material non-public facts regarding the invest-
ment from the participant or beneficiary. Id. § 2550.404c-
1(c)(2)(ii).
The regulation sums up the effect of a finding of inde-
pendent exercise of control, from the perspective of a plan
fiduciary, as follows:
Nos. 07-3605 & 08-1224 25
If a participant or beneficiary of an ERISA section
404(c) plan exercises independent control over assets
in his individual account in the manner described in
paragraph (c), then no other person who is a fiduciary
with respect to such plan shall be liable for any loss,
or with respect to any breach of part 4 of title I of the
Act, that is the direct and necessary result of that
participant’s or beneficiary’s exercise of control.
Id. § 2550.404c-1(d)(2)(i). The safe harbor provided by
§ 1104(c) is an affirmative defense to a claim for breach
of fiduciary duty under ERISA. In re Unisys Sav. Plan
Litig., 74 F.3d 420, 446 (3d Cir. 1996).
Although normally a district court should not base a
dismissal under Rule 12(b)(6) on its assessment of an
affirmative defense, see U.S. Gypsum Co. v. Indiana Gas
Co., 350 F.3d 623, 626 (7th Cir. 2003), that rule does not
apply when a party has included in its complaint “facts
that establish an impenetrable defense to its claims.”
Tamayo v. Blagojevich, 526 F.3d 1074, 1086 (7th Cir. 2008).
In Tamayo, we went on to explain that “[a] plaintiff
pleads himself out of court when it would be necessary to
contradict the complaint in order to prevail on the
merits. . . . If the plaintiff voluntarily provides unneces-
sary facts in her complaint, the defendant may use those
facts to demonstrate that she is not entitled to relief.”
Id. (internal citations and quotation marks omitted).
Plaintiffs here chose to anticipate the § 1104(c) defense
in their Complaint explicitly and thus put it in play.
Paragraph 58 begins by noting that “ERISA § 404(c)
provides to Plan fiduciaries a ‘Safe Harbor’ from liability
26 Nos. 07-3605 & 08-1224
for losses that a participant suffers in his or her 401(k)
accounts to the extent that the participant exercises
control over the assets in his or her 401(k) accounts.”
Paragraphs 58 through 61 describe the information that
Deere, as a plan fiduciary, was required to furnish. Later,
the Complaint has a section entitled “Defendants’ Non-
Compliance with § 404(c)’s Safe Harbor Requirements
and Concealment of Its Fiduciary Breaches.” Paragraphs 91
through 101 specify exactly what Deere and Fidelity
allegedly failed to do. For example, paragraphs 91 and
100(c) and (e) accuse them of failing to disclose that
Fidelity was engaged in revenue sharing among its dif-
ferent entities. Paragraphs 93 and 100(b) assert that
Plan participants did not have complete knowledge of the
fees and expenses that were being charged to the Plans
and that were reducing their account balances. Paragraphs
95 and 101(i) charge, among other things, that Deere
and Fidelity failed to disclose their agreement that Deere
would offer only Fidelity-related funds for the Plans.
The district court concluded that the Complaint so thor-
oughly anticipated the safe-harbor defense that it
could reach that issue; we agree with it, bearing in mind
that we must still consider any factual allegations in the
light most favorable to plaintiffs.
The Hecker group argues that even if the Complaint
anticipated the safe-harbor defense, further proceedings
are needed because the Complaint did not address all
of the 25 or so different requirements that must be met in
order to establish it definitively. Deere implies that this
overstates the number of requirements, but its primary
point is that plaintiffs have waived the right to complain
Nos. 07-3605 & 08-1224 27
about the Plans’ compliance with all but two criteria—the
obligation to disclose fund-level fees and the level of
expenses (see 29 C.F.R. §§ 2550.404c-1(b)(2)(i)(B)(1)(v)
and (B)(2)(i)). In some instances, it is inappropriate to
jump to the conclusion that a point has been waived
when a case is being decided on the pleadings, but this is
not such a case. Plaintiffs chose to discuss § 1104(c) exten-
sively in the Complaint and to specify the ways in
which the Plans fell short for purposes of the defense. To
shift grounds now would undermine the notice that
defendants gleaned from the Complaint, to their prejudice.
Restricting our analysis to the challenges in the Com-
plaint, we see no plausible allegation that the Plans
do not comply with § 1104(c). Plaintiffs have focused on
matters that are not helpful to them in the end, namely,
the defendants’ failure to disclose non-public material
information, their revenue-sharing arrangements, and
their decision to offer only Fidelity Research mutual
funds. As we have already noted, however, the regula-
tions implementing the safe-harbor defense describe in
detail the expenses and fees that must be disclosed. The fee
distribution by the management company post-collection
is not one of those fees. See 19 C.F.R. §§ 2550.404c-
1(b)(2)(i)(B)(1)(v), (2)(i). And, as we have already ex-
plained, the revenue-sharing arrangement between the
Fidelity defendants is not material information for a
participant’s investment decision. The central question
is thus whether the alleged misconduct—the imprudent
selection of mutual funds with excessively high fees— falls
within the safe harbor.
28 Nos. 07-3605 & 08-1224
Plaintiffs begin with a broadside attack, asserting that
the defense has no application to a fiduciary’s “assembling
an imprudent menu [of investment options] in the
first instance.” DiFelice v. U.S. Airways, Inc., 497 F.3d 410,
418 n.3 (4th Cir. 2007). Deere and Fidelity respond
that there are no exceptions to § 1104(c)’s safe harbor,
which in terms applies to “any” breach committed by
someone “who is otherwise a fiduciary.” Pinning their
hopes on a footnote to the preamble to the implementing
regulations, see 57 Fed. Reg. 46,905, 46, 924 n.27 (Oct. 13,
1992), plaintiffs argue that the Secretary has carved out
the activity of designating investment options from the
safe harbor. Fidelity and Deere respond that this type
of informal commentary, which was never embodied in
the final regulations, cannot override the language of
the statute and regulations.
Plaintiffs would like us to decide whether the safe
harbor applies to the selection of investment options for
a plan, but in the end we conclude that this abstract
question need not be resolved to decide this case. Even if
§ 1104(c) does not always shield a fiduciary from an
imprudent selection of funds under every circumstance
that can be imagined, it does protect a fiduciary that
satisfies the criteria of § 1104(c) and includes a suf-
ficient range of options so that the participants have
control over the risk of loss. Cf. Langbecker v. Electronic
Data Sys. Corp., 476 F.3d 299, 310-11 (5th Cir. 2007); and
Unisys, 74 F.3d at 445 (holding that a fiduciary that com-
mitted a breach of duty in making an investment deci-
sion for a Plan may nevertheless take advantage of the
§ 1104(c) defense); but see DiFelice, 497 F.3d at 418 n.3.
Nos. 07-3605 & 08-1224 29
The regulation addresses the investment options by
stipulating that the § 1104(c) defense is available only if
the plan offers “a broad range of investment alternatives.”
29 C.F.R. § 2550.404c-1(b)(3). The necessary broad range
exists “only if the available investment alternatives are
sufficient to provide the participant or beneficiary with a
reasonable opportunity to” accomplish three goals: the
ability materially to affect potential return and degree
of risk in the investor’s portfolio; a choice from at
least three investment alternatives each of which is diver-
sified and has materially different risk and return charac-
teristics; and the ability to diversify sufficiently so as to
minimize the risk of large losses. Id. §§ 2550.404c-
1(b)(3)(i)(A)-(C).
Interestingly, in light of the inclusion of the
BrokerageLink facility in the plans available to the
Deere participants, the regulation also notes that
“[w]here look-through investment vehicles are available
as investment alternatives to participants and bene-
ficiaries, the underlying investments of the look-through
investment vehicles shall be considered in determining
whether the plan satisfies the requirements of [the regula-
tion].” Id. § 2550.404c-1(b)(3)(ii). The 2,500 mutual funds
available through BrokerageLink had fees ranging from
.07% to 1%. Any allegation that these options did not
provide the participants with a reasonable opportunity
to accomplish the three goals outlined in the regulation,
or control the risk of loss from fees, is implausible, to
use the terminology of Twombly. Plaintiffs complain
that non-Fidelity funds were available only through
BrokerageLink, but that is immaterial under this regula-
30 Nos. 07-3605 & 08-1224
tion. If particular participants lost money or did not earn
as much as they would have liked, that disappointing
outcome was attributable to their individual choices.
Given the numerous investment options, varied in type
and fee, neither Deere nor Fidelity (assuming for the
sake of argument that it somehow had fiduciary duties
in this respect) can be held responsible for those choices.
4. Rule 59(e) Motion to Alter or Amend
After the district court entered judgment, the Hecker
group filed a timely motion under F ED. R. C IV . P. 59(e) in
which it argued that newly discovered evidence sup-
ported relief in the group’s favor. This evidence,
plaintiffs asserted, revealed that Deere did turn over all
relevant decisionmaking power to Fidelity and allowed
Fidelity to decide such critical matters as what funds to
include in the Plans, how much to pay Fidelity Trust (as
Trustee), what administrative fees were being assessed
against the Plans or charged to participants, and how to
allocate the float from interest on Plan assets. The district
court denied the motion, finding that it was really an
untimely request to amend the Complaint, that plaintiffs
had not proffered an amended complaint, and that they
had not shown how the new evidence altered any of the
court’s legal conclusions.
At the outset, it is not even clear that the proffered
evidence is new. Fidelity argues that it is not, because
plaintiffs possessed the evidence before the district court
ruled on the motion to dismiss. Plaintiffs concede that
point, but they assert that it is “new” in the sense that they
Nos. 07-3605 & 08-1224 31
received it only after the due date for briefs on the mo-
tion. That may be so, but if this evidence was so important
to their case, plaintiffs should have alerted the district
court to their discovery and asked for some appropriate
way to bring it to the court’s attention. There was no
reason to sit on potentially relevant evidence and allow the
court to go forward with its decision, and then turn around
and criticize the court for ruling without the benefit of that
same evidence.
That is why this court has held that the assessment of
newness turns on the date of the court’s dispositive
order, not on the date when the motions or briefs are
filed. In re Prince, 85 F.3d 314, 324 (7th Cir. 1996). Plaintiffs
admit that their experts analyzed the evidence, and the
expert reports were exchanged on June 6, 2007; the
district court did not rule until June 21, 2007.
Plaintiffs also argue that the district court should not
have penalized them for failing to proffer an amended
complaint, on the theory that a plaintiff can amend a
complaint only after the court grants the Rule 59(e)
motion. The last point may be true, but it does not
address the question whether plaintiffs must show the
district court what they propose to do. Once judgment
has been entered, there is a presumption that the case is
finished, and the burden is on the party who wants to
upset that judgment to show the court that there is
good reason to set it aside. Thus, in Twohy v. First Nat’l
Bank, 758 F.2d 1185 (7th Cir. 1985), this court upheld the
rejection of a Rule 59(e) motion because the plaintiff did
not attach an amended complaint and did not indicate
32 Nos. 07-3605 & 08-1224
the “exact nature of the amendments proposed.” Id. at
1189; see also Viacom, Inc. v. Harbridge Merchant Servs.,
20 F.3d 771, 785 (7th Cir. 1994) (faulting plaintiff for not
attaching a proposed complaint or specifically informing
the court how it would cure deficiencies in the earlier
complaint). We see no abuse of discretion in this aspect
of the district court’s decision.
Finally, the new evidence would not have changed
the case against Deere, as the district court observed. The
court had already approached the case on the assump-
tion that Deere had been imprudent in its selection of
investment options. Although the new evidence can be
read to disclaim the admission that Deere had the
final word on those selections and to give notice that the
plaintiffs’ theory was that Fidelity was the true actor
(and thus the functional fiduciary), the district court was
within its discretion to reject this late shift in focus—a
shift that would have been highly prejudicial to the
defendants.
5. Costs Award
We can be brief with respect to the costs order. The
district court awarded costs to both Deere and Fidelity,
and plaintiffs challenge both awards. First, we address
Deere’s costs. Deere requested $74,335.52 in costs, and the
court awarded it $54,396.57. Plaintiffs quibble about
such matters as the number of copies the district court
thought reimbursable and the documentation for those
copies, but we see no abuse of discretion in the district
court’s evaluation of those matters. The only potential
problem lies with the copies that Deere admits were
Nos. 07-3605 & 08-1224 33
made for its own records. We have held that the cost of
copies made by an attorney for his or her own records
is not recoverable. McIlveen v. Stone Container Corp., 910
F.2d 1581, 1584 (7th Cir. 1990). On the other hand, we
have also upheld a cost award to a party for copies made
“for its attorneys.” Northbrook Excess & Surplus Ins. Co. v.
Procter & Gamble Co., 924 F.2d 633, 643 (7th Cir. 1991). This
is not an argument, however, that plaintiffs have made,
and we are reluctant in the face of apparently conflicting
decisions from this court to reach out and decide it
on our own. Because of the plaintiffs’ forfeiture of this
potential legal argument and the lack of merit in plain-
tiffs’ other challenges to the Deere costs order, we affirm
that order. (We take no position on the issue we have
flagged; there will be time enough in a case in which it
is properly presented to resolve it.)
Fidelity asked for $186,488.95 in costs, and the court
awarded it $164,814.43. While this is a substantial
amount, we see no abuse of discretion in the district court’s
decision. Plaintiffs’ principal complaint is that it was
improper to award Fidelity its costs for document selec-
tion, as opposed to document processing. Fidelity responds
that the costs were for converting computer data into a
readable format in response to plaintiffs’ discovery re-
quests; such costs are recoverable under 28 U.S.C. § 1920.
The record supports Fidelity’s characterization of the
costs, and so we will not disturb the district court’s order.
* * *
The judgment of the district court is A FFIRMED.
2-12-09