Tussey v. ABB, Inc.



Current and former employees of ABB, Inc. brought this action in U.S. District Court for the Western District of Missouri on December 29, 2006. The plaintiffs are participants in 401(k) retirement plans sponsored by ABB.  The original complaint alleges that the fees and expenses paid by the retirement plans are unreasonable, excessive, and in violation of fiduciary obligations under the Employee Retirement Income Security Act (ERISA).

 

In broad terms, the complaint challenges: (1) excessive fees being paid by the retirement plans, and (2) revenue-sharing payments being made by investment managers to plan service providers. 

 

After a 16-day trial the District Court found that ABB and its investment manager, Fidelity, breached their fiduciary duties to the ABB retirement plans.  Specifically, the Court determined that:

 

(1) ABB violated its fiduciary duties to the plans when it failed to monitor recordkeeping costs; failed to negotiate rebates for the plans from Fidelity or other mutual funds; selected more expensive share classes when less expensive investment options were available; and removed the Vanguard Wellington Fund and replaced it with Fidelity's Freedom Funds.

  

(2) ABB and its Employee Benefits Committee violated their fiduciary duties to the plans when they agreed to pay to Fidelity an amount that exceeded market costs for retirement plan services in order to subsidize corporate services provided to ABB by Fidelity, such as payroll and recordkeeping for ABB's health and welfare plan and its defined benefit plan.

 

(3) Fidelity breached its fiduciary duties to the plans when it failed to distribute float income solely for the interest of the plans.

  

(4) Fidelity breached its fiduciary duties when it transferred float income to the plans' investment options instead of distributing it to the plans directly.

 

The District Court's decision was appealed to the Eighth Circuit Court of Appeals.  On March 19, 2014, the Court of Appeals affirmed the District Court on its award of $13.4 million to recover excessive recordkeeping fees.  The Court overturned and remanded to the District Court its decision on the investment selection issues.  It also vacated the judgment against Fidelity on its use of float income, finding that such income is not a reirement plan asset.

 

On August 5, 2014, the plaintiffs filed a petition for a writ of certiorari before the U.S. Supreme Court.  The plaintiffs are challenging that part of the 8th Circuit's decision in which it ruled that ABB, as the plan sponsor, should be provided deference in the selection of plan investments.  This ruling is inconsistent with rulings by the 2nd and 3rd Circuits, in which this standard has not been applied in circumstances where a sponsor is alleged to have breached its fiduciary duty, according to the plaintiffs.  The petition also asks the Supreme Court to consolidate this appeal with the Tibble v. Edison International case, a similar case before the Court on a petition for a writ of certiorari.

 

On November 10, 2014, the Supreme Court denied the petition for certiorari, leaving intact the holding of the Eighth Circuit Court of Appeals.

 

  • Plaintiffs File Certiorari Petition with U.S. Supreme Court
    On August 5, 2014, the plaintiffs filed a petition for a writ of certiorari before the U.S. Supreme Court. The plaintiffs are challenging that part of the 8th Circuit's decision involving the selection of plan investments by the sponsor, as it conflicts with rulings by the 2nd and 3rd Circuit Courts of Appeal.
  • Court of Appeals Rules in ABB 401(k) Case
    On March 19, 2014, the Eighth Circuit Court of Appeals issued its decision in this case. The Court affirmed parts of the District Court's decision, vacated other parts, and remanded several issues back to the District Court for further proceedings.
  • District Court Ruling in Favor of Plaintiffs
    On March 31, 2012, the District Court ruled that ABB and Fidelity breached their fiduciary duties under ERISA to the ABB retirement plans.
  • Plaintiffs File Amended Complaint
    On July 5, 2007, the plaintiffs filed an amended complaint in this case.
  • ABB Retirement Plan Participants File Complaint in Federal Court
    On December 29, 2006, participants in two ABB 401(k) retirement plans filed a complaint in federal court against ABB and its investment manager, Fidelity. The complaint alleges that the fees and expenses paid by these retirement plans are unreasonable, excessive, and in violation of fiduciary obligations under ERISA.

Current and former employees of ABB, Inc. brought this action in U.S. District Court for the Western District of Missouri on December 29, 2006. The plaintiffs are participants in 401(k) retirement plans sponsored by ABB.  The original complaint alleges that the fees and expenses paid by the retirement plans are unreasonable, excessive, and in violation of fiduciary obligations under the Employee Retirement Income Security Act (ERISA).

 

In broad terms, the complaint challenges: (1) excessive fees being paid by the retirement plans, and (2) revenue-sharing payments being made by investment managers to plan service providers. 

 

After a 16-day trial the District Court found that ABB and its investment manager, Fidelity, breached their fiduciary duties to the ABB retirement plans.  Specifically, the Court determined that:

 

(1) ABB violated its fiduciary duties to the plans when it failed to monitor recordkeeping costs; failed to negotiate rebates for the plans from Fidelity or other mutual funds; selected more expensive share classes when less expensive investment options were available; and removed the Vanguard Wellington Fund and replaced it with Fidelity's Freedom Funds.

  

(2) ABB and its Employee Benefits Committee violated their fiduciary duties to the plans when they agreed to pay to Fidelity an amount that exceeded market costs for retirement plan services in order to subsidize corporate services provided to ABB by Fidelity, such as payroll and recordkeeping for ABB's health and welfare plan and its defined benefit plan.

 

(3) Fidelity breached its fiduciary duties to the plans when it failed to distribute float income solely for the interest of the plans.

  

(4) Fidelity breached its fiduciary duties when it transferred float income to the plans' investment options instead of distributing it to the plans directly.

 

The District Court's decision was appealed to the Eighth Circuit Court of Appeals.  On March 19, 2014, the Court of Appeals affirmed the District Court on its award of $13.4 million to recover excessive recordkeeping fees.  The Court overturned and remanded to the District Court its decision on the investment selection issues.  It also vacated the judgment against Fidelity on its use of float income, finding that such income is not a reirement plan asset.

 

On August 5, 2014, the plaintiffs filed a petition for a writ of certiorari before the U.S. Supreme Court.  The plaintiffs are challenging that part of the 8th Circuit's decision in which it ruled that ABB, as the plan sponsor, should be provided deference in the selection of plan investments.  This ruling is inconsistent with rulings by the 2nd and 3rd Circuits, in which this standard has not been applied in circumstances where a sponsor is alleged to have breached its fiduciary duty, according to the plaintiffs.  The petition also asks the Supreme Court to consolidate this appeal with the Tibble v. Edison International case, a similar case before the Court on a petition for a writ of certiorari.

 

On November 10, 2014, the Supreme Court denied the petition for certiorari, leaving intact the holding of the Eighth Circuit Court of Appeals.

 

Document Title: 
Plaintiffs File Certiorari Petition with U.S. Supreme Court
Document Desc: 
On August 5, 2014, the plaintiffs filed a petition for a writ of certiorari before the U.S. Supreme Court. The plaintiffs are challenging that part of the 8th Circuit's decision involving the selection of plan investments by the sponsor, as it conflicts with rulings by the 2nd and 3rd Circuit Courts of Appeal.
Document Title: 
Court of Appeals Rules in ABB 401(k) Case
Document Desc: 
On March 19, 2014, the Eighth Circuit Court of Appeals issued its decision in this case. The Court affirmed parts of the District Court's decision, vacated other parts, and remanded several issues back to the District Court for further proceedings.
Document Title: 
District Court Ruling in Favor of Plaintiffs
Document Desc: 
On March 31, 2012, the District Court ruled that ABB and Fidelity breached their fiduciary duties under ERISA to the ABB retirement plans.
Document Title: 
Plaintiffs File Amended Complaint
Document Desc: 
On July 5, 2007, the plaintiffs filed an amended complaint in this case.
Document Title: 
ABB Retirement Plan Participants File Complaint in Federal Court
Document Desc: 
On December 29, 2006, participants in two ABB 401(k) retirement plans filed a complaint in federal court against ABB and its investment manager, Fidelity. The complaint alleges that the fees and expenses paid by these retirement plans are unreasonable, excessive, and in violation of fiduciary obligations under ERISA.