ALEXANDER WILLIAMS, JR., District Judge.
Pending before the Court is Defendants' Motion for Reconsideration of the Court's March 31, 2011 Opinion and Order, 2011 WL 1258524 ("Motion for Reconsideration"). The parties have fully briefed the issues and the Court deems no hearing necessary. For the reasons stated herein, the Court
Except where otherwise indicated, the Court takes the following facts from Plaintiffs' Amended Complaint and construes them favorably to Plaintiffs. Defendant Coventry Health Care Inc. ("Coventry") is a national managed health care company based in Bethesda, Maryland. Coventry operates health plans, insurance companies, network rental/managed care services companies, and workers' compensation services companies. In addition to Coventry, Plaintiffs name several Coventry employees as Defendants. Plaintiffs categorize these Defendants as "Director Defendants," "Officer Defendants," and "Committee Defendants."
Plaintiffs participated in an ERISA defined contribution plan ("the Plan") that Coventry sponsored. The Plan is a voluntary contribution plan whereby participants make contributions to the Plan and direct the Plan to purchase investments with those contributions from investment
Plaintiffs' allegations revolve around Coventry's Medicare Advantage Private Fee for Service product ("PFFS"). PFFS is a type of Medicare plan that private companies offer that allows members to choose their own healthcare provider. Coventry launched PFFS in forty-three states on January 1, 2007. Plaintiffs maintain that, at the start of the Class Period, Coventry's future growth prospects depended highly on PFFS. Nevertheless, Plaintiffs contend that Coventry launched PFFS without establishing a control system by which it could monitor, process, account for, and pay claims emanating from insureds' visits to non-network service providers. According to Plaintiffs, this omission caused a claims-processing lag that adversely affected Coventry's profitability. Nonetheless, in Plaintiffs' estimation, Coventry employed underpricing strategies to create a false appearance that PFFS was as profitable as Coventry touted it to be. Additionally, Plaintiffs allege that Defendants and other Coventry insiders sold hundreds of thousands of shares of personally held Coventry stock for gross proceeds in excess of $14 million even as certain Defendants issued misleading statements about Coventry's financial health. Plaintiffs further allege that Defendants issued these inaccurate statements through a variety of outlets, including a SEC filing and a press release.
Based on these and other allegations, Plaintiffs filed a class-action complaint against Defendants on October 13, 2009. Doc. 1. In their Amended Complaint, filed on June 28, 2010, Plaintiffs assert four claims. Doc. 17. Count I asserts a claim for failing to prudently and loyally manage the Plan and assets of the Plan. In Count II, Plaintiffs assert a claim for failing to monitor fiduciaries. For its part, Count III asserts a claim for failing to avoid conflicts of interest. Finally, Count IV asserts a claim for co-fiduciary liability. On August 12, 2010, Defendants filed a Motion to Dismiss Plaintiffs' Amended Complaint ("Motion to Dismiss"). Doc. 20.
The Court ruled on Defendants' Motion to Dismiss on March 31, 2011 ("March 31 Opinion"). Doc. 29. In the March 31 Opinion, the Court granted in part and denied in part Defendants' Motion to Dismiss. Whereas the Court denied the Motion to Dismiss as to Counts I, III, and IV of the Amended Complaint, the Court granted it as to Count II. On April 14, 2011, Defendants filed the instant Motion for Reconsideration. Doc. 33. Defendants use their Motion for Reconsideration largely to rehash arguments that the Court rejected in its March 31 Opinion.
In pertinent part, Rule 54(b) provides that Courts may revise interlocutory orders "at any time before the entry of a judgment." Fed.R.Civ.P. 54(b); see also Moses H. Cone Mem. Hosp. v. Mercury
Defendants first argue that the Court applied the wrong standard of prudence in its March 31 Opinion. Defendants assert that the Court applied the standard of "procedural prudence" set forth in DiFelice v. U.S. Airways, Inc., 497 F.3d 410 (4th Cir.2007). Doc. 33-1 at 6. Defendants contend that the Court committed clear error in applying the procedural prudence standard because it fails to take into account whether the decision to invest in Coventry stock was "objectively imprudent." Id. Defendants maintain that the so-called objective prudence standard prescribes that a fiduciary fails to breach ERISA's duty of prudence "by failing to sell employer securities unless the employer is facing imminent collapse." Id. at 7. That is, Defendants postulate that fiduciaries satisfy their duty of prudence when they make intrinsically sound investments even if the fiduciaries employ inappropriate methods to investigate the merits of the investments.
This argument represents a disingenuous attempt to circumvent the Fourth Circuit's holding in DiFelice. The DiFelice court held that "when deciding whether a plan fiduciary has acted prudently, a court must inquire whether the individual trustees ...
In this case, the Court did not commit "clear error" in applying DiFelice's "procedural prudence" standard because DiFelice essentially enunciates such a standard. Although the investment's underlying merits inform the prudence inquiry, many of the factors that DiFelice identifies relate to procedural prudence. Thus, at a minimum, DiFelice imposes no per se requirement that ERISA plaintiffs plead the substantive unsoundness of the investment at issue. Defendants basically try to bifurcate the ERISA's uniform prudence requirement into separate substantive and procedural prongs. Neither ERISA's text nor DiFelice's explication thereof supports this false distinction. Aptly, the DiFelice court states:
497 F.3d at 422-23 (quoting 29 U.S.C. § 1104(a)(1)(B)).
Moreover, at this stage in the litigation, it is premature to scrutinize the substantive soundness of Coventry's investment decisions. As a rule of thumb, courts properly make such fact-intensive determinations on motion for summary judgment or at trial. Indeed, courts decided most of the cases that Defendants cite to support their substantive prudence theory at trial or on summary judgment. Accordingly, the Court declines to reconsider its March 31 Opinion based on Defendants' substantive prudence argument.
Second, Defendants argue that the Plan denied them discretion to remove Coventry stock from the Plan. Doc. 33-1 at 9. Defendants note that the Court wrote in its March 31 Opinion that "nothing in the Plan documents prevented the fiduciaries from taking corrective action to prevent erosion of the Plan assets stemming from the Plan holdings of Coventry Stock during the Class Period." Id. (citing Doc. 29 at 8). Plaintiffs maintain that this holding contravenes the Plan's plain language. Pertinently, the Plan states:
Doc. 20-3 § 5.01(c). Plaintiffs insist that the language "it shall continue to be available unless the Plan is amended to disallow such available investment" constitutes plenary proof that Defendants lacked discretion to halt their investment in Coventry stock.
The meaning of the phrase "made available" is also ambiguous. Assuming the applicability of the language "[the investment] shall continue to be available unless the Plan is amended," it is unclear from the face of the Plan that this language is synonymous with continuing to invest in Coventry stock. There may be a way that Coventry could "make available" its stock to Plaintiffs without continuing to invest in it. For instance, even if Plaintiffs elected to invest in Coventry stock, Defendants might have had discretion to stop making matching contributions in the same. Furthermore, even if Defendants lacked such discretion, it is plausible that Defendants could have alerted Plaintiffs that Coventry stock was a poor investment choice and encouraged them to designate a different investment. In short, the meaning of the phrase "made available" is facially ambiguous. Presumably, discovery will help illuminate this linguistic obscurity.
The preceding discussion demonstrates that the disputed provision does not, as a matter of law, bear the meaning that Defendants attach to it. Therefore, the Court declines to reconsider its March 31 Opinion based on Defendants' second argument.
Defendants' third argument embodies a series of loosely related arguments that Defendants clump together under a single heading. Defendants argue that the Court committed clear error by concluding that Plaintiffs adequately alleged loss. The Court would rule against Defendants on this argument even if the Plaintiffs failed to sufficiently plead loss. Entitled "Liability for Breach of Fiduciary Duty," ERISA § 409 provides:
29 U.S.C. § 1109(a) (emphasis added). Correspondingly, ERISA § 502 empowers participants to bring civil actions for relief under § 409. 29 U.S.C. § 1132(a). In light of these provisions, there is no categorical requirement that an ERISA plaintiff plead economic loss. Therefore, Defendants' argument that Plaintiffs failed to
Defendants also argue that Plaintiffs cannot prevail on their misrepresentation claim (i.e. duty of loyalty) for various reasons. Defendants contend that the Court did not "find" that Defendants made the alleged misrepresentations in a fiduciary capacity. It is hardly surprising that the Court made no such "finding" in that the Court addressed a motion to dismiss in its March 31 Opinion. In so doing, the Court did not make any "findings" per se. Rather, the Court accepted the truth of the Amended Complaint's well-pleaded allegations, construed them in a light favorable to the Plaintiffs, and asked whether it was plausible that Plaintiffs could prevail on their duty of loyalty claim with the benefit of discovery. With this standard's liberality in mind, the Court readdresses this question.
Courts "apply a functional analysis in determining if a party acts as a fiduciary and owes fiduciary duties with regard to particular conduct." DiFelice, 497 F.3d at 418 (citing Pegram v. Herdrich, 530 U.S. 211, 226, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000)). Thus, whether a party acts as a fiduciary with respect to communications to plan participants highly depends on "the factual context in which the statements were made." Varity Corp. v. Howe, 516 U.S. 489, 503, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996). In making this determination, courts may consider (1) the extent to which the speaker had authority under the plan and (2) the extent to which the communications related to the plan. See id.
In this case, Plaintiffs allege that Defendants' misleading communications included a SEC filing and a press release. See Doc. 17 ¶¶ 148-49. Plaintiffs also allege that Defendants Shawn M. Guertin and Dale B. Wolf issued these communications. Plaintiffs assert further that Guertin was the "Plan Administrator and a member of the Committee." Id. ¶ 30. Plaintiffs add that Guertin served "as the Company's Executive Vice President, Chief Financial Officer ("CFO") and Treasurer." Id. Likewise, Defendants contend that Wolf was Coventry's CEO and Director, and that he signed key Plan documents. Id. ¶ 19. Moreover, Guertin and Wolf occupied such high positions in Coventry that it is plausible that they served as Coventry's alter ego. Cf. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 758, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (interpreting § 219(2)(a) of the Restatement (Second) of Agency for the proposition that an "agent's high rank in the company [may] make[] him or her the employer's alter ego").
If the Court assumes the truth of these factual allegations and construes them most favorably to Plaintiffs, they suffice to state a facially plausible claim that Guertin and Wolf acted as fiduciaries with respect to their alleged misrepresentations/omissions. Similar to Varity, Plaintiffs allege that company officials with considerable authority under the Plan made Plan-related communications. What is more, without the aid of discovery, the Court struggles to see how Plaintiffs could flesh out the factual context in which Guertin and Wolf made these statements. Indeed, the test of determining a party's fiduciary capacity is "functional." Therefore, the test is ill-suited for application at the motion to dismiss stage. For these reasons, the Court committed no "clear error" by failing to "find" that Defendants made the alleged misrepresentations in a fiduciary capacity.
Finally, Defendants argue that Plaintiffs' failure to plead reliance on Defendants' alleged misrepresentations precludes their duty of loyalty claim. Although this argument has force, Plaintiffs' failure to rely on Guertin's and Wolf's alleged misrepresentations/omissions would not automatically shield Defendants from duty of loyalty liability. As mentioned above, economic loss is not a prerequisite for ERISA liability. Rather, plaintiffs may establish a breach of the duty of loyalty by showing that administrators were dishonest to them about a plan and its prospects while acting in a fiduciary capacity. The Court questions whether Plaintiffs can ultimately make this showing. Nonetheless, taken as true and construed most favorably to Plaintiffs, the Amended Complaint's factual contentions make it plausible that, with the aid of discovery, Plaintiffs can show that Guertin and Wolf effectively lied about the Plan in a fiduciary capacity. The same analysis applies to Coventry in that it is plausible that additional facts will establish that Guertin and Wolf are Coventry's alter ego. For the foregoing reasons, the Court declines to reconsider its March 31 Opinion based on Defendants' third argument as to Guertin, Wolf, and Coventry.
The Court takes this opportunity to clarify a minor oversight in its March 31 Opinion. In the Opinion, the Court denied Defendants' Motion to Dismiss as to Count I (failure to prudently and loyally manage the Plan) of the Amended Complaint. In so doing, the Court did not fully delineate Plaintiffs' prudence claim from their duty of loyalty claim predicated on Defendants' alleged misrepresentations. The preceding analysis evinces that the Amended Complaint states a facially plausible misrepresentation claim as to only Guertin, Wolf, and Coventry. It follows that the Court must dismiss Plaintiffs' misrepresentation claim as to the remaining Defendants, namely: Daniel N. Mendelson; Rodman W. Moorhead, III; Timothy T. Weglicki; L. Dale Crandall; Elizabeth E.
Defendants' fourth, and final, argument for reconsideration is that Plaintiffs failed to adequately allege that Defendants were fiduciaries within the meaning of ERISA. Defendants assert that the Amended Complaint's factual assertions regarding Defendants' purported fiduciary status parrot ERISA's statutory definition for fiduciary. Defendants contend that such legal conclusions fly in the face of the pleading standards that the Supreme Court promulgated in Twombly and Iqbal. To buttress their argument, Defendants note that the Court stated in its March 31 Opinion that "Plaintiffs' Complaint does appear to track the statutory definition of fiduciary." Doc. 29 at 13.
Defendants neglect to mention that, just before making this statement, the Court declared that "an ERISA complaint need do little more than track the statutory definition of fiduciary to establish a defendant's fiduciary status in compliance with Rule 8." Id. (internal quotation marks omitted) (citing In re Morgan Stanley ERISA Litig., 696 F.Supp.2d 345, 365 (S.D.N.Y.2009)). However unsettled this rule in the wake of Twombly and Iqbal, it still reflects the fact that "ERISA defines `fiduciary' in functional terms of plan control and authority." Doc. 35 at 12 (citing Mertens v. Hewitt Assoc., 508 U.S. 248, 262, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993)). Courts have "recognized Congress's intention that ERISA's definition of fiduciary be broadly construed." See Frommert v. Conkright, 433 F.3d 254, 271 (2d Cir.2006) (citing LoPresti v. Terwilliger, 126 F.3d 34, 40 (2d Cir.1997)). As previously stated, whether a party acts as a fiduciary with respect to communications to plan participants highly depends on "the factual context in which the statements were made." Varity, 516 U.S. at 503, 116 S.Ct. 1065. Therefore, to a considerable degree, the fact-intensive nature of ERISA's definition for fiduciary may require plaintiffs' factual allegations regarding an actor's fiduciary status to track the statutory definition.
Moreover, not all of Plaintiffs' factual averments concerning Defendants' status as fiduciaries track the statutory definition. As mentioned above, Plaintiffs allege that Guertin was the "Plan Administrator and a member of the Committee." Doc. 17 ¶ 30. Plaintiffs further allege that Guertin served "as the Company's Executive Vice President, Chief Financial Officer ("CFO") and Treasurer." Id. Likewise, Defendants allege that Wolf served as Coventry's CEO and Director, and that Wolf inked crucial Plan documents. Id. ¶ 19. Such allegations are significant in that the Varity court considered both the extent to which the speaker had authority under the plan and the extent to which the communications related to the plan when determining whether an administrator acted as a fiduciary. Varity, 516 U.S. at 503, 116 S.Ct. 1065.
For the reasons set forth above, the Court declines to reconsider its March 31 Opinion based on Defendants' fourth argument.
Defendants argue in the alternative that the Court should certify the March 31 Opinion and accompanying Order for interlocutory appeal. Defendants argue that the four arguments that the Court rejected in Part III.A present issues that satisfy the statutory prerequisites for certification of interlocutory orders for appeal. After stating the standard for certification of interlocutory orders for appeal, the Court briefly explains wherein Defendants' arguments fail to satisfy this standard.
Section 1292(b) of the United States Code gives district courts discretion to certify an interlocutory order for appeal where three criteria are present: (1) the order involves a controlling question of law; (2) substantial ground for difference of opinion exists regarding the question; and (3) allowing interlocutory appeal would materially advance the termination of the litigation. See 28 U.S.C. § 1292(b); see also Coopers & Lybrand v. Livesay, 437 U.S. 463, 474, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). "A party seeking review of a nonfinal order must first obtain the consent of the trial judge." Coopers, 437 U.S. at 474, 98 S.Ct. 2454. The party moving for certification of an interlocutory order pursuant to § 1292(b) bears the burden of proving that the prospective appeal satisfies each of the statutory prerequisites for certification. See id. at 437 U.S. at 474-75, 98 S.Ct. 2454. Generally, "exceptional circumstances" must exist to "justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment." Id. at 475, 98 S.Ct. 2454 (citation and internal quotation marks omitted). Consonantly, the Fourth Circuit has stated that "§ 1292(b) should be used sparingly and ... its requirements must be strictly construed." Myles v. Laffitte, 881 F.2d 125, 127 (4th Cir.1989) (citation omitted).
Defendants assert that the Court's March 31 Opinion involves four questions of law that would potentially dispose of their claims. Defendants label these allegedly dispositive questions of law as (1) the liability question, (2) the presumption question, (3) the communications question, and (4) the reliance question.
Defendants state the liability question as follows: "Whether plan language requiring that employer securities shall be maintained as an investment option precludes fiduciary discretion over the Coventry stock and liability for maintaining the stock." Doc. 33-1 at 14. This question misses the point. As previously illustrated, the Plan provision on which Defendants base this argument is ambiguous. This observation undermines the premise of Defendants' argument. Therefore, the Court declines to certify this nonissue for interlocutory appeal.
Defendants state the communications question as follows: "Whether incorporation by reference of corporate statements, including SEC filings and press releases, into plan communications converts those statements into actionable fiduciary communications." Doc. 33-1 at 14. This basis for interlocutory appeal reflects a misunderstanding of the nature of Plaintiffs' allegations. Plaintiffs do not base their misrepresentation claim solely on the fact that the Plan incorporates SEC filings. Rather, Plaintiffs assert that the April 25 press release contained material omissions. Therefore, even if the Fourth Circuit ruled that the statements Guertin and Wolf made in the 10-Q form were not actionable as a matter of law, the Court would still face the question whether the statements Defendants made in the press release were materially misleading. Permitting interlocutory appeal of this issue would inject even more delay into a case that has lingered on the Court's docket for over two years. Thus, the Court declines to certify the third issue for appeal.
Defendants state the reliance question as follows: "Whether detrimental reliance is an essential element of a misrepresentation claim asserted against a fiduciary under ERISA." Doc. 33-1 at 14. The Court acknowledges the existence of authority advancing the notion that reliance is an element of an ERISA misrepresentation claim. However, as held above, Plaintiffs' factual allegations, albeit lacking, state a facially plausible claim that Defendants breached their duty of loyalty through the issuance of materially misleading statements and omissions. The Court based this holding in part on the observation that ERISA authorizes equitable relief for breaches of the duty of loyalty. Therefore, although the Court questions whether Plaintiffs will prevail on their misrepresentation claim, the prospect of success lies within the realm of plausibility. Moreover, even if the Court permitted Defendants to appeal this issue, all the other issues would remain in the suit. Considering how long this case has lingered on the Court's docket, permitting piecemeal appeal of this comparably paltry issue would primarily serve the unwholesome interest of delay. Accordingly, the Court declines to certify the fourth issue for appeal.
In light of the preceding considerations, the Court
