15‐2229
In Re: Lehman Bros. Sec. and ERISA Litig.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
______________
August Term, 2015
(Argued: January 14, 2016 Decided: March 18, 2016)
Docket No. 15‐2229
____________
ALEX E. RINEHART, on behalf of himself and all others
similarly situated, JO ANNE BUZZO, MONIQUE MILLER
FONG, on behalf of herself and others similarly situated,
MARIA DESOUSA, LINDA DEMIZIO,
Plaintiffs‐Appellants,
LOCALS 302 AND 612 OF THE INTERNATIONAL
UNION OF OPERATING ENGINEERS‐EMPLOYERS
CONSTRUCTION INDUSTRY RETIREMENT FUND, CITY
OF SOUTH SAN FRANCISCO, CITY OF LONG BEACH,
COUNTY OF TUOLUMNE, CITY OF FREMONT, NEW
JERSEY CARPENTERS HEALTH FUND, BOILERMAKER‐
BLACKSMITH NATIONAL PENSION TRUST, NEW
JERSEY CARPENTERS HEALTH FUND, on behalf of itself
and all others similarly situated, AMERICAN NATIONAL
INSURANCE COMPANY, AMERICAN NATIONAL LIFE
INSURANCE COMPANY OF TEXAS, COMPREHENSIVE
INVESTMENT SERVICES INC., THE MOODY
FOUNDATION, WASHINGTON STATE INVESTMENT
BOARD, CHRISTOPHER CORDARO, individually and on
behalf of all others similarly situated, SYLVIA REMER, ED
DAVIS, JUAN TOLOSA, ARTHUR SIMONS, RALPH
ROSATO, TRUSTEE J. HARRY PICKLE, ZENITH
INSURANCE CO., STATE OF NEW JERSEY,
DEPARTMENT OF TREASURY, DIVISION OF
INVESTMENT, LINDA HARRIS, An Individual, MARIA
LANE, Individually and as Trustee of the Lane Family
Trust UAD 2004, MICHAEL LANE, Individually and as
Trustee of the Lane Family Trust UAD 2004, STEPHEN P.
GOTT, MOHAN ANANDA, RICHARD BARRETT, NEEL
DUNCAN, NICK FOTINOS, FRED MANDELL, BARBARA
MOSKOWITZ, STACEY OYLER, RONALD PROFILI,
LAWRENCE ROSE, JOE ROTTMAN, ROY WIEGERT,
MIRIAM WOLF, ISLAND MEDICAL GROUP
RETIREMENT TRUST, f/b/o Irwin Ingwer, DAVID KOTZ,
CARLA LA GRASSA, STUART RATNOW, SYDNEY
RATNOW, STATE COMPENSATION INSURANCE
FUND, CITY OF CERRITOS, CITY OF AUBURN, CITY OF
BURBANK, CITY OF SAN BUENAVENTURA, CONTRA
COSTA WATER DISTRICT, SAN MATEO COUNTY
INVESTMENT POOL, VALLEJO SANITATION & FLOOD
CONTROL DISTRICT, MARY A. ZEEB, BEN JOSEPH
TRUST, EPSTEIN TRUST, STICHTING PENSIOENFONDS
ABP, ALISON CHARLES, RENAUD FOURNIER, LYDIA
LOSCHIAVO, ALAMEDA COUNTY EMPLOYEES’
RETIREMENT ASSOCIATION, AMERICAN EUROPEAN
INSURANCE COMPANY, GOVERNMENT OF GUAM
RETIREMENT FUND, INTER‐LOCAL PENSION FUND
GRAPHIC COMMUNICATIONS CONFERENCE OF THE
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
MARSHA KOSSEFF, NORTHERN IRELAND LOCAL
GOVERNMENT OFFICERS’ SUPERANNUATION
COMMITTEE, OPERATING ENGINEERS LOCAL 3
TRUST FUND, OPERATIVE PLASTERERS AND CEMENT
MASONS INTERNATIONAL ASSOCIATION LOCAL 262
ANNUITY FUND, Individually and on behalf of all others
similarly situated, POLICE AND FIRE RETIREMENT
SYSTEM OF THE CITY OF DETROIT, TEAMSTERS
ALLIED BENEFIT FUNDS, THE CITY OF EDINBURGH
COUNCIL AS ADMINISTERING AUTHORITY OF THE
LOTHIAN PENSION FUND, THE PENSION FUND
GROUP, BROCKTON CONTRIBUTORY RETIREMENT
SYSTEM, RICK FLEISCHMAN, STEPHEN GOTT, ISLAND
MEDICAL GROUP, KARIM KANO, MICHAEL
KARFUNKEL, ANN LEE, FRANCISCO PEREZ, RONALD
PROFILI, SHEA‐EDWARDS LIMITED PARTNERSHIP,
FRED TELLING, GRACE WANG, ZAHNISER TRUST,
ANTHONY PEYSER, On behalf of himself and all others
similarly situated, STEPHEN P. GOTT, On behalf of
himself, All others similarly situated, BELMONT
HOLDINGS CORP., individually and on behalf of all others
similarly situated, KATHY ROONEY, on behalf of
themselves and all others similarly situated, JEFFREY
STARK, on behalf of themselves and all others similarly
situated, STANLEY TOLIN, ENRIQUE AZPIAZU, STUART
BREGMAN, ROBERTA CIACCI, ROBERT FEINERMAN,
IRWIN INGWER, PHYLLIS INGWER, ISLAND MEDICAL
GROUP PENSION PLAN, f/b/o Irwin Ingwer, FRANKLIN
KASS, CHRISTOPHER LEWIS, on behalf of himself and
The Entertainment Group, AURORA PEREZ,
CUAUHTEMOC PEREZ, DIANA PEREZ, TRUSTEE J.
HARRY PICKLE, GASTROENTEROLOGY ASSOCIATES
PROFIT SHARING TRUST FBO CHARLES M. BROOKS
M.D., ALEJANDRO SILVA, DAVID SOSNA, MORTGAGE
TRUST 2007‐6, ALASKA ELECTRICAL PENSION FUND,
On behalf of itself and all others similarly situated,
FOUNDATION PROPERTY MANAGEMENT, INC., RHF
FOUNDATION INC., RETIREMENT HOUSING
FOUNDATION, COUNTY OF ALAMEDA, BERNICE
KAUFMAN, as trustee of the Irene Kaufman Trust, IRENE
KAUFMAN, as trustee of the Irene Kaufman Trust,
ARTHER N. ABBEY, FIFTH‐NINTH STREET INVESTORS
LLC, ADINA SCHRON, JTWROS, AVI SCHRON, JOSEPH
P. DANIS, RENA CALDWELL, on behalf of themselves and
all others similarly situated, GLEN DEATHROW, on behalf
of himself and all others similarly situated, MADELINE
DIMODICA, on behalf of herself and all other similarly
situated, BARBARA KATTELL, on behalf of himself and all
other similarly situated, CECIL MEASE, on behalf of
themselves and all others similarly situated, HENRY
NAPIRALA, LINDA NAPIRALA, MICHAEL SHIPLEY, on
behalf of themselves and all others similarly situated,
Plaintiffs,
‐v.‐
LEHMAN BROTHERS HOLDINGS INC., RICHARD S.
FULD, JR., MACOMBER, ERIN M. CALLAN, WENDY M.
UVINO, THE EMPLOYEE BENEFIT PLANS COMMITTEE,
JOHN DOE, 1‐10, MARY PAT ARCHER, AMITABH
ARORA, MICHAEL BRANCA, EVELYNE ESTEY, ADAM
FEINSTEIN, DAVID ROMHILT,
Defendants‐Appellees,
LEHMAN BROTHERS HOLDINGS INC., EMPLOYEE
BENEFIT PLANS COMMITTEE, BOARD OF DIRECTORS
LEHMAN BROTHERS HOLDINGS, INC., BENEFITS
COMMITTEE, MOODYʹS INVESTORS SERVICE, INC.,
MCGRAW‐HILL COMPANIES, INC., MOODYʹS
CORPORATION, ERNST & YOUNG, LLP, BRIAN M.
CLARKSON, MICHAEL KANEF, MOODYʹS INVESTORS
SERVICE, INC., FIDELITY MANAGEMENT TRUST
COMPANY, ANZ SECURITIES, INC., CITIGROUP
GLOBAL MARKETS INC., RBC CAPITAL MARKETS
CORPORATION, ABN AMRO INCORPORATED,
WILLIAMS CAPITAL GROUP L.P., BBVA SECURITIES
INC., GREENWICH CAPITAL MARKETS, INC.,
SUNTRUST CAPITAL MARKETS, INC., CIBC WORLD
MARKETS CORP., HSBC SECURITIES (USA) INC., HVB
CAPITAL MARKETS, INC., M.R. BEAL & COMPANY,
BNP PARIBAS S.A., ING FINANCIAL MARKETS LLC,
MELLON FINANCIAL MARKETS, LLC, NATIXIS
BLEICHROEDER INCORPORATED, SANTANDER
INVESTMENT SECURITIES INC., SG AMERICAS
SECURITIES HOLDINGS, LLC, WELLS FARGO
SECURITIES, LLC, NATIONAL AUSTRALIA CAPITAL
MARKETS, LLC, CAJA DE AHORROS Y MONTE DE
PIEDAD DE MADRID, HARRIS NESBITT CORP., DZ
FINANCIAL MARKETS LLC, FORTIS SECURITIES, LLC,
RBS GREENWICH CAPITAL, BMO CAPITAL MARKETS
CORP., MIZUHO SECURITIES USA, INC., MURIEL
SIEBERT & CO., INC., SCOTIA CAPITAL (USA) INC.,
SOVEREIGN SECURITIES CORPORATION, LLC,
UTENDAHL CAPITAL PARTNERS, L.P., BANK
DEFENDANTS, BANKIA, S.A., RAYMOND MCDANIEL,
JR., RBS WCS HOLDING COMPANY, DAIWA CAPITAL
MARKETS EUROPE LIMITED, BNY CAPITAL MARKETS,
INC., WACHOVIA CAPITAL MARKETS, LLC, BNY
MELLON CAPITAL MARKETS, LLC, MCGRAW‐HILL
COMPANIES, INC., A.G. EDWARDS & SONS, INC.,
BANC OF AMERICA SECURITIES LLC, BBVA
SECURITIES INC., COMMERZBANK CAPITAL
MARKETS CORP., FIDELITY CAPITAL MARKETS, LOOP
CAPITAL MARKETS, LLC, MORGAN STANLEY & CO.
LLC, RAYMOND JAMES & ASSOCIATES, INC., UBS
SECURITIES LLC, WACHOVIA SECURITIES, LLC, ZIONS
DIRECT, INC., CALYON SECURITIES (USA) INC.,
COUNTRYWIDE SECURITIES CORPORATION, HYPO
CAPITAL MARKETS, INC., LASALLE FINANCIAL
SERVICES, INC., EDWARD D. JONES & CO., L.P.,
NATIONAL AUSTRALIA BANK LIMITED, RBC DAIN
RAUSCHER INCORPORATED, BANK OF NEW YORK
CAPITAL MARKETS, INC., CIBC WORLD MARKETS
CORP., DNB NOR MARKETS INC., MERRILL LYNCH,
PIERCE, FENNER & SMITH INCORPORATED, SIEBERT
CAPITAL MARKETS, STANDARD CHARTERED BANK,
SUNTRUST ROBINSON HUMPHREY, INC., TD
SECURITIES (USA) LLC, J.P. MORGAN SECURITIES LLC,
CITIGROUP INC., RBS SECURITIES INC., HARRIS
NESBITT, SOCIETE GENERALE CORPORATE &
INVESTMENT BANKING, CITIGROUP GLOBAL
MARKETS REALTY CORP., BBVA SECURITIES INC.,
BANC OF AMERICA SECURITIES LLC, CABRERA
CAPITAL MARKETS, LLC, D.A. DAVIDSON & CO.,
DAVENPORT & COMPANY LLC, FERRIS, BAKER
WATTS, INC., FIFTH THIRD SECURITIES, INC., FIXED
INCOME SECURITIES, INC., H & R BLOCK FINANCIAL
ADVISORS, INC., JACKSON SECURITIES LLC, JANNEY
MONTGOMERY SCOTT LLC, KEEFE, BRUYETTE &
WOODS, INC., KEYBANC CAPITAL MARKETS, INC.,
MAXIM GROUP LLC, MESIROW FINANCIAL, INC.,
MORGAN KEEGAN & COMPANY, INC., NATIONAL
FINANCIAL SERVICES LLC, OPPENHEIMER & CO.,
INCORPORATED, ROBERT W. BAIRD & CO.
INCORPORATED, SMH CAPITAL INC., SCOTT &
STRINGFELLOW, INC., STIFEL, NICOLAUS &
COMPANY, INCORPORATED, STONE & YOUNGBERG
LLC, TD AMERITRADE HOLDING CORPORATION,
VINING SPARKS IBG, LP, ZIONS DIRECT, INC.,
WACHOVIA CAPITAL FINANCE, B.C. ZIEGLER AND
COMPANY, CREDIT SUISSE SECURITIES (USA) LLC,
PIPER JAFFRAY & CO., DZ FINANCIAL MARKETS LLC,
LANA FRANKS, EDWARD GRIEB, RICHARD
MCKINNEY, KRISTINE SMITH, JAMES J. SULLIVAN,
SAMIR TABET, MARK L. ZUSY, ABN AMRO HOLDING
N.V, CABRERA CAPITAL MARKETS LLC, CHARLES
SCHWAB & CO., INC., NABCAPITAL SECURITIES, LLC,
THE WILLIAMS CAPITAL GROUP, L.P., PIPER JAFFRAY
& CO., DAVID GOLDFARB, HERBERT H. MCDADE, III,
THOMAS RUSSO, MARK WALSH, JERRY GARCIA, An
Individual, BNP PARIBAS, KATHLEEN FULD, JOHN C.
ANDERSON, JAMES ESPOSITO, FINANCIAL ASSETS
SECURITIES CORPORATION, GREENWICH CAPITAL
ACCEPTANCE, INC., NOW KNOWN A RBS
ACCEPTANCE INC., GREENWICH CAPITAL
FINANCIAL PRODUCTS, INC., now known as RBS
Financial Products Inc., GREENWICH CAPITAL
MARKETS, INC., now known as RBS Securities Inc.,
CAROL P. MATHIS, ROBERT J. MCGINNIS, JOSEPH N.
WALSH, III, BANCA IMI, S.P.A., ARKANSAS ACTIONS
BANK DEFENDANTS, ARKANSAS ACTIONS
INDIVIDUAL DEFENDANTS, WSIB ACTION BANK
DEFENDANTS, ANICO ACTION BANK DEFENDANTS,
PEARSON PLAINTIFFSʹ ACTIONS BANK DEFENDANTS,
STATE FUND ACTION INDIVIDUAL DEFENDANTS,
RHF ACTION INDIVIDUAL DEFENDANTS, REMER
ACTION INDIVIDUAL DEFENDANTS, A/S ACTIONS
INDIVIDUAL DEFENDANTS, THE LEHMAN BROTHERS
SAVINGS PLAN, ERIN CALLAN, JOSEPH M. GREGORY,
IAN LOWITT, MIZUHO SECURITIES USA, INC., UBS
FINANCIAL SERVICES INC., CHRISTOPHER M.
OʹMEARA, MICHAEL L. AINSLIE, JOHN F. AKERS,
ROGER S. BERLIND, THOMAS H. CRUIKSHANK,
MARSHA JOHNSON EVANS, SIR CHRISTOPHER GENT,
JERRY A. GRUNDHOFER, RONALD A. HERNANDEZ,
HENRY KAUFMAN AND JOHN D. MACOMBER,
Defendants,
BNC MORTGAGE LOAN TRUST 2006‐1, BNC
MORTGAGE LOAN TRUST 2006‐2, FIRST FRANKLIN
MORTGAGE LOAN TRUST 2006‐FF12, FIRST FRANKLIN
MORTGAGE LOAN TRUST 2006‐FF2, FIRST FRANKLIN
MORTGAGE LOAN TRUST 2006‐FFA, FIRST FRANKLIN
MORTGAGE LOAN TRUST 2006‐FFB, GREENPOINT
MORTGAGE FUNDING TRUST SERIES 2006‐AR4,
GREENPOINT MORTGAGE FUNDING TRUST SERIES
2006‐AR5, GREENPOINT MORTGAGE FUNDING TRUST
SERIES 2006‐AR7, GREENPOINT MORTGAGE FUNDING
TRUST SERIES 2006‐HE1, GREENPOINT MORTGAGE
FUNDING TRUST SERIES 2006‐AR6, GREENPOINT
MORTGAGE FUNDING TRUST SERIES 2006‐AR8,
GREENPOINT MORTGAGE FUNDING TRUST, SERIES
2007‐AR1, GREENPOINT MORTGAGE FUNDING TRUST,
SERIES 2007‐AR3, LEHMAN MORTGAGE TRUST 2006‐2,
LEHMAN MORTGAGE TRUST 2006‐5, LEHMAN
MORTGAGE TRUST 2006‐6, LEHMAN MORTGAGE
TRUST 2006‐7, LEHMAN MORTGAGE TRUST 2006‐8,
LEHMAN MORTGAGE TRUST 2006‐9, LEHMAN
MORTGAGE TRUST 2007‐1, LEHMAN MORTGAGE
TRUST 2007‐2, LEHMAN MORTGAGE TRUST 2007‐3,
LEHMAN MORTGAGE TRUST 2007‐4, LEHMAN
MORTGAGE TRUST 2007‐5, LEHMAN XS TRUST 2005‐4,
LEHMAN XS TRUST 2005‐5N, LEHMAN XS TRUST 2005‐
6, LEHMAN XS TRUST 2005‐7N, LEHMAN XS TRUST
2005‐8, LEHMAN XS TRUST 2005‐9N, LEHMAN XS
TRUST 2006‐1, LEHMAN XS TRUST 2006‐11, LEHMAN XS
TRUST 2006‐13, LEHMAN XS TRUST 2006‐14N, LEHMAN
XS TRUST 2006‐15, LEHMAN XS TRUST 2006‐16N,
LEHMAN XS TRUST 2006‐17, LEHMAN XS TRUST 2006‐
18N, LEHMAN XS TRUST 2006‐19, LEHMAN XS TRUST
2006‐20, LEHMAN XS TRUST 2006‐2N, LEHMAN XS
TRUST 2006‐3, LEHMAN XS TRUST 2006‐4N, LEHMAN
XS TRUST 2006‐5, LEHMAN XS TRUST 2006‐GP1,
LEHMAN XS TRUST 2006‐GP2, LEHMAN XS TRUST 2007‐
1, LEHMAN XS TRUST 2007‐10H, LEHMAN XS TRUST
2007‐11, LEHMAN XS TRUST 2007‐12N, LEHMAN XS
TRUST 2007‐2N, LEHMAN XS TRUST 2007‐4N, LEHMAN
XS TRUST 2007‐5H, LEHMAN XS TRUST 2007‐6,
LEHMAN XS TRUST 2007‐7N, LEHMAN XS TRUST 2007‐
9, LEHMAN XS TRUST SERIES 2005‐5N, LEHMAN XS
TRUST SERIES 2005‐7N, LEHMAN XS TRUST SERIES
2005‐9N, LEHMAN XS TRUST SERIES 2006‐16N,
LEHMAN XS TRUST SERIES 2006‐2N, STRUCTURED
ADJUSTABLE RATE MORTGAGE LOAN TRUST 2006‐10,
STRUCTURED ADJUSTABLE RATE MORTGAGE LOAN
TRUST 2006‐11, STRUCTURED ADJUSTABLE RATE
MORTGAGE LOAN TRUST 2006‐12, STRUCTURED
ADJUSTABLE RATE MORTGAGE LOAN TRUST 2006‐2,
STRUCTURED ADJUSTABLE RATE MORTGAGE LOAN
TRUST 2006‐3, STRUCTURED ADJUSTABLE RATE
MORTGAGE LOAN TRUST 2006‐4, STRUCTURED
ADJUSTABLE RATE MORTGAGE LOAN TRUST 2006‐8,
STRUCTURED ADJUSTABLE RATE MORTGAGE LOAN
TRUST 2006‐9, STRUCTURED ADJUSTABLE RATE
MORTGAGE LOAN TRUST 2007‐1, STRUCTURED
ADJUSTABLE RATE MORTGAGE LOAN TRUST 2007‐2,
STRUCTURED ADJUSTABLE RATE MORTGAGE LOAN
TRUST 2007‐3, STRUCTURED ADJUSTABLE RATE
MORTGAGE LOAN TRUST 2007‐4, STRUCTURED
ADJUSTABLE RATE MORTGAGE LOAN TRUST 2007‐5,
STRUCTURED ADJUSTABLE RATE MORTGAGE LOAN
TRUST 2007‐6, STRUCTURED ASSET INVESTMENT
LOAN TRUST 2006‐2, STRUCTURED ASSET
INVESTMENT LOAN TRUST 2006‐BNC1, STRUCTURED
ASSET INVESTMENT LOAN TRUST 2006‐BNC3,
STRUCTURED ASSET SECURITIES CORPORATION,
STRUCTURED ASSET SECURITIES CORPORATION
MORTGAGE LOAN TRUST 2006‐BC1, STRUCTURED
ASSET SECURITIES CORPORATION MORTGAGE LOAN
TRUST 2006‐BC2, STRUCTURED ASSET SECURITIES
CORPORATION MORTGAGE LOAN TRUST 2006‐BC3,
STRUCTURED ASSET SECURITIES CORPORATION
MORTGAGE LOAN TRUST 2006‐BC4, STRUCTURED
ASSET SECURITIES CORPORATION MORTGAGE LOAN
TRUST 2006‐BC5, STRUCTURED ASSET SECURITIES
CORPORATION MORTGAGE LOAN TRUST 2006‐BC6,
STRUCTURED ASSET SECURITIES CORPORATION
MORTGAGE LOAN TRUST 2006‐S1, STRUCTURED
ASSET SECURITIES CORPORATION MORTGAGE LOAN
TRUST 2006‐S3, STRUCTURED ASSET SECURITIES
CORPORATION MORTGAGE LOAN TRUST 2006‐S4,
STRUCTURED ASSET SECURITIES CORPORATION
MORTGAGE LOAN TRUST 2006‐WF1, STRUCTURED
ASSET SECURITIES CORPORATION MORTGAGE LOAN
TRUST 2006‐WF3, STRUCTURED ASSET SECURITIES
CORPORATION MORTGAGE LOAN TRUST 2007‐BC1,
STRUCTURED ASSET SECURITIES CORPORATION
MORTGAGE LOAN TRUST 2007‐BC2, STRUCTURED
ASSET SECURITIES CORPORATION MORTGAGE LOAN
TRUST 2007‐BC3, STRUCTURED ASSET SECURITIES
CORPORATION MORTGAGE LOAN TRUST 2007‐EQ1,
STRUCTURED ASSET SECURITIES CORPORATION
MORTGAGE LOAN TRUST 2007‐OSI, STRUCTURED
ASSET SECURITIES CORPORATION MORTGAGE LOAN
TRUST 2007‐WF1, DOES 1‐20, GREENPOINT MORTGAGE
FUNDING GRANTOR TRUST 1‐A1A, SERIES 2006‐AR6,
GREENPOINT MORTGAGE FUNDING GRANTOR
TRUST 1‐A2A2, SERIES 2006‐AR5, GREENPOINT
MORTGAGE FUNDING GRANTOR TRUST 1‐A3A2,
SERIES 2006‐AR5, GREENPOINT MORTGAGE FUNDING
TRUST 1‐A2A2, SERIES 2006‐AR6, GREENPOINT
MORTGAGE FUNDING TRUST 1‐A2B, SERIES 2006‐AR6,
GREENPOINT MORTGAGE FUNDING TRUST 1‐A3B,
SERIES 2006‐AR6, GREENPOINT MORTGAGE FUNDING
TRUST 1‐A3B, SERIES 2006‐AR6, LEHMAN BROTHERS
INC., LEHMAN MORTGAGE TRUST 2007‐6, LEHMAN
MORTGAGE TRUST MORTGAGE PASS‐THROUGH
CERTIFICATES, SERIES 2007‐4,
Consolidated‐Defendants.
______________
Before:
JACOBS, WESLEY, and LIVINGSTON, Circuit Judges.
Plaintiffs‐Appellants appeal from the July 10, 2015
dismissal of their third consolidated amended complaint in the
United States District Court for the Southern District of New
York (Kaplan, Judge) alleging breach of duties by Defendants‐
Appellees, who were fiduciaries of an employee stock ownership
plan (“ESOP”) invested exclusively in the common stock of
Lehman Brothers Holdings, Inc. (“Lehman”). Plaintiffs‐
Appellants, all of whom participated in this plan and suffered
severe financial losses after Lehman declared bankruptcy in
September 2008, claimed that Defendants‐Appellees breached
their duty of prudence under the Employee Retirement Income
Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001 et seq., by
continuing to permit investment in Lehman stock throughout
the months leading up to its bankruptcy. The District Court
granted Defendants‐Appellees’ motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6), finding that even
without applying the presumption of prudence rejected by the
Supreme Court in Fifth Third Bancorp v. Dudenhoeffer, 134 S. Ct.
2459 (2014), Plaintiffs‐Appellants failed to plead plausibly that
Defendants‐Appellees breached their ERISA duties. We AFFIRM
the judgment of the District Court.
__________
DANIEL W. KRASNER (Matthew M. Guiney, Wolf
Haldenstein Adler Freeman & Herz LLP, New
York, NY; Thomas J. McKenna, Gregory Egleston,
Gainey McKenna & Egleston, New York, NY, on
the brief), Wolf Haldenstein Adler Freeman & Herz
LLP, New York, NY, for Plaintiffs‐Appellants Alex E.
Rinehart, on behalf of himself and all others similarly
situated, Jo Anne Buzzo, Monique Miller Fong, on
behalf of herself and others similarly situated, Maria
DeSousa, and Linda DeMizio.
JONATHAN K. YOUNGWOOD (Janet Gochman, Alexander Li,
on the brief), Simpson Thacher & Bartlett LLP, New
York, NY, for Defendants‐Appellees Mary Pat Archer,
Amitabh Arora, Michael Branca, Evelyne Estey, Adam
Feinstein, David Romhilt, and Wendy M. Uvino.
TODD S. FISHMAN, Allen & Overy LLP, New York, NY, for
Defendant‐Appellee Richard S. Fuld, Jr.
__________
PER CURIAM:
This case returns to the Court for the second time since
2013. After the September 2008 bankruptcy of Lehman Brothers
Holdings, Inc. (“Lehman”), Plaintiffs‐Appellants (“Plaintiffs”)
brought suit on behalf of a putative class of former participants
in an employee stock ownership plan (“ESOP”) invested
exclusively in Lehman’s common stock. Plaintiffs alleged that
Defendants‐Appellees (“Plan Committee Defendants” or
“Benefit Committee Defendants”), who were fiduciaries of this
ESOP, breached their duty of prudence under the Employee
Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C.
§§ 1001 et seq., by continuing to permit investment in Lehman
stock in the face of circumstances arguably foreshadowing its
2
eventual demise. Plaintiffs also alleged that Lehman’s former
directors, including Lehman’s former chairman and chief
executive officer, Defendant‐Appellee Richard S. Fuld
(“Defendant Fuld”), violated ERISA by failing to keep the Plan
Committee Defendants apprised of material, nonpublic
information that could have affected their evaluation of the
prudence of investing in Lehman stock.1
Applying the presumption of prudence articulated in
Moench v. Robertson, 62 F.3d 553 (3d Cir. 1995), and adopted by
this Court in In re Citigroup ERISA Litigation, 662 F.3d 128 (2d
Cir. 2011), the United States District Court for the Southern
District of New York (Kaplan, Judge) dismissed Plaintiffs’
consolidated amended complaint (“CAC”) and second
consolidated amended complaint (“SCAC”) for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6). On July 15,
2013, we affirmed the District Court’s dismissal of both the CAC
and SCAC while also applying the Moench presumption,
concluding that Plaintiffs had failed to “plausibly allege[] that
the Benefit Committee Defendants knew or should have known
that Lehman was an imprudent investment given the mixed
signals with which the fiduciaries grappled.” Rinehart v. Akers,
722 F.3d 137, 151 (2d Cir. 2013).
Nearly a year later, on June 25, 2014, the Supreme Court
of the United States held in Fifth Third Bancorp v. Dudenhoeffer
that ESOP fiduciaries are not entitled to any special presumption
of prudence. 134 S. Ct. 2459, 2463 (2014). On July 1, 2014, the
Supreme Court granted Plaintiffs’ petition for a writ of certiorari,
1 Our previous decision in this case provides a detailed recitation of
the facts, which have never been in dispute. See Rinehart v. Akers, 722
F.3d 137 (2d Cir. 2013), vacated and remanded, 134 S. Ct. 2900 (2014).
3
vacated the judgment in Rinehart, and remanded the case to our
Court for further consideration in light of Fifth Third. Rinehart v.
Akers, 134 S. Ct. 2900 (2014). We, in turn, remanded the case to
the District Court, and the District Court allowed Plaintiffs to
replace the SCAC with a third consolidated amended complaint
(“TCAC”) that narrowed their claims and shortened the class
period.
On July 10, 2015, the District Court dismissed the TCAC,
again holding that Plaintiffs had failed to state a claim under
Rule 12(b)(6). In re Lehman Bros. Sec. & ERISA Litig., 113 F. Supp.
3d 745, 769 (S.D.N.Y. 2015). Though recognizing that Fifth Third
abrogated the Moench presumption of prudence formerly
governing ESOP‐based ERISA claims in this Circuit, the District
Court nonetheless concluded that Plaintiffs failed to allege
sufficiently that the Plan Committee Defendants violated their
ERISA fiduciary duties as measured by the Twombly and Iqbal
pleading standards. Id. at 754–55.
We affirm.
DISCUSSION2
The central purpose of ERISA is “to protect beneficiaries
of employee benefit plans.” Slupinski v. First Unum Life Ins. Co.,
554 F.3d 38, 47 (2d Cir. 2009). To further this purpose, ERISA
imposes on fiduciaries a duty to “act in a prudent manner ‘under
the circumstances then prevailing.’” Pension Benefit Guar. Corp. ex
2 We review de novo a district court’s dismissal for failure to state a
claim under Rule 12(b)(6). Wurtz v. Rawlings Co., 761 F.3d 232, 237 (2d
Cir. 2014). “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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
4
rel. St. Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv.
Mgmt. Inc., 712 F.3d 705, 716 (2d Cir. 2013) (quoting 29 U.S.C.
§ 1104(a)(1)(B)). We have long measured this duty “according to
the objective prudent person standard developed in the common
law of trusts,” Katsaros v. Cody, 744 F.2d 270, 279 (2d Cir. 1984)
(internal quotation marks omitted), and have emphasized that
ERISA’s “fiduciary duty of care . . . requires prudence, not
prescience,” Pension Benefit Guar. Corp., 712 F.3d at 716
(alteration in original) (internal quotation marks omitted).
In Fifth Third, the Supreme Court rejected the
presumption that we previously applied when analyzing the
prudence of an ESOP fiduciary’s decision to buy or hold an
employer’s stock. 134 S. Ct. at 2463. Prior to Fifth Third, we held
that “an ESOP fiduciary who invests the [ESOP’s] assets in
employer stock is entitled to a presumption that it acted
consistently with ERISA” in doing so. Moench v. Robertson, 62
F.3d 553, 571 (3d Cir. 1995); see also In re Citigroup ERISA Litig.,
662 F.3d 128, 138 (2d Cir. 2011) (adopting the Moench
presumption in the Second Circuit because “it provides the best
accommodation between the competing ERISA values of
protecting retirement assets and encouraging investment in
employer stock”). Fifth Third, however, held unequivocally that
“the law does not create a special presumption favoring ESOP
fiduciaries.” Fifth Third, 134 S. Ct. at 2467. Instead, “the same
standard of prudence applies to all ERISA fiduciaries, including
ESOP fiduciaries, except that an ESOP fiduciary is under no duty
to diversify the ESOP’s holdings.” Id.
Despite rejecting any special presumption of prudence for
ESOP fiduciaries, Fifth Third made clear that “where a stock is
publicly traded, allegations that a fiduciary should have
recognized from publicly available information alone that the
market was over‐ or undervaluing the stock are implausible as a
5
general rule, at least in the absence of special circumstances.” Id.
at 2471. The Court emphasized that ERISA fiduciaries, who
“could reasonably see ‘little hope of outperforming the
market . . . based solely on their analysis of publicly available
information’ may, as a general matter, . . . prudently rely on the
market price.” Id. (first alteration in original) (quoting Halliburton
Co. v. Erica P. John Fund, Inc., 134 S. Ct. 2398, 2411 (2014)). The
Court specifically declined to consider “whether a plaintiff could
nonetheless plausibly allege imprudence on the basis of publicly
available information by pointing to a special circumstance
affecting the reliability of the market price as ‘an unbiased
assessment of the security’s value in light of all public
information’ that would make reliance on the market’s valuation
imprudent.” Id. at 2472 (quoting Halliburton, 134 S. Ct. at 2411).
For claims alleging breach of the duty of prudence on the
basis of nonpublic information, Fifth Third held that “a plaintiff
must plausibly allege an alternative action that the defendant
could have taken that would have been consistent with the
securities laws and that a prudent fiduciary in the same
circumstances would not have viewed as more likely to harm the
fund than to help it.” Id. The Court identified three
considerations pertinent to this analysis:
[1] [C]ourts must bear in mind that the duty
of prudence, under ERISA as under the
common law of trusts, does not require a
fiduciary to break the law. . . .
[2] [C]ourts should consider the extent to
which an ERISA‐based obligation either to
refrain on the basis of inside information
from making a planned trade or to disclose
inside information to the public could
conflict with the complex insider trading
6
and corporate disclosure requirements
imposed by the federal securities laws or
with the objectives of those laws. . . .
[3] [C]ourts . . . should also consider
whether the complaint has plausibly alleged
that a prudent fiduciary in the defendant’s
position could not have concluded that
stopping purchases—which the market
might take as a sign that insider fiduciaries
viewed the employer’s stock as a bad
investment—or publicly disclosing negative
information would do more harm than good
to the fund by causing a drop in the stock
price and a concomitant drop in the value of
the stock already held by the fund.
Id. at 2472–73.
It did not take long for a post‐Fifth Third case to reach the
High Court. Harris v. Amgen, Inc. was a class action brought by
participants in an employee benefit plan alleging breaches of
fiduciary duties under ERISA when the trustees of the Plan
allowed continued investment in the employer’s stock despite
allegedly knowing that its price was artificially inflated as a
result of improper off‐label drug marketing and sales. 788 F.3d
916 (9th Cir. 2015), rev’d, 136 S. Ct. 758 (2016) (per curiam). On
remand from the Supreme Court, the Ninth Circuit reasoned
that the plaintiffs’ complaint adequately alleged claims under
Fifth Third because, in light of the fact that “the federal securities
laws require disclosure of material information,” it is “quite
plausible . . . that defendants could remove the [Amgen
Common Stock Fund] from the list of investment options
without causing undue harm to plan participants.” Id. at 937–38.
7
The Supreme Court accepted the possibility that
“removing the Amgen Common Stock Fund from the list of
investment options” might be “an alternative action that could
plausibly have satisfied Fifth Third’s standards.” Amgen Inc., 136
S. Ct. at 760. Nevertheless, the Court reversed the Ninth Circuit
because plaintiffs failed to plead “facts and allegations
supporting that proposition.” Id. Though it faulted the Ninth
Circuit for “fail[ing] to assess whether the complaint in its
current form ‘has plausibly alleged’ that a prudent fiduciary in
the same position ‘could not have concluded’ that the alternative
action ‘would do more harm than good,’” the Court concluded
ultimately that “the stockholders are the masters of their
complaint” and the complaint did not contain “sufficient facts
and allegations to state a claim for breach of the duty of
prudence.” Id. (quoting Fifth Third, 134 S. Ct. at 2473).
Plaintiffs here allege in Count I of the TCAC that the Plan
Committee Defendants knew or should have known, based on
publicly available information, that investment in Lehman had
become increasingly risky throughout 2008, and that failing to
consider the wisdom of continuing to invest in Lehman during
this period constituted a breach of fiduciary duty. See J.A. 684–88
(TCAC ¶¶ 412–26). The District Court found—and we agree—
that neither Fifth Third nor the substitution of one amended
complaint for another changes our previous conclusion that
Plaintiffs have failed to plausibly allege a breach of duty claim.
As the District Court observed, the TCAC’s updated descriptions
of “allegedly ominous news articles, volatility of Lehman’s stock
price, increased trading volumes, rising costs of Lehman credit
default swaps and other investment instruments, downgrades
from various ratings agencies, and criticism from investment
analysts . . . do no more than add marginally to the cacophony of
‘mixed signals’ described in the SCAC.” In re Lehman Bros. Sec. &
8
ERISA Litig., 113 F. Supp. 3d at 755 (quoting Rinehart, 722 F.3d at
151). These additions and refinements “do not nudge the
allegations of the TCAC across the plausibility threshold.” Id.
Plaintiffs attempt to plead around Fifth Third by saying
that their claims concern “excessive risk” and therefore are not
covered by Fifth Third, which Plaintiffs argue dealt only with
claims concerning “market value.”3 For purposes of this analysis,
we agree with the District Court that the purported distinction
between claims involving “excessive risk” and claims involving
“market value” is illusory. Fifth Third “foreclose[s] breach of
prudence claims based on public information irrespective of
whether such claims are characterized as based on alleged overvaluation
or alleged riskiness of a stock.” In re Lehman Bros., 113 F. Supp. 3d
at 756 (emphasis added). Although the language of Fifth Third
refers primarily to “over‐ or undervaluing” stock, the Fifth Third
Court applied this rule to the plaintiffs’ risk‐based claims in that
case. See 134 S. Ct. at 2471–72. Moreover, viewing this rule as
applicable to all allegations of imprudence based upon public
information—regardless of whether the allegations are framed in
3 See Appellants’ Br. 39 (“[T]he gravamen of Count I is not that the
market was overvaluing the price of Lehman Stock, but that the
Benefit Committee Defendants failed to investigate whether Lehman
Stock remained a prudent retirement investment for the Plan in light
of the escalating risks surrounding Lehman.”); Appellants’ Br. 40
(“[N]o court has ever held that a security’s price is the sole benchmark
by which a fiduciary should be guided, and that plan fiduciaries are
entitled to ignore adverse changed circumstances pertaining to a plan
investment simply because the investment is priced accurately.”). As
support for this argument, Plaintiffs rely in part on Gedek v. Perez, 66 F.
Supp. 3d 368 (W.D.N.Y. 2014), and Tibble v. Edison Intern., 135 S. Ct.
1823 (2015). For the reasons stated by the District Court, we agree that
Plaintiffs’ reliance on these cases is misplaced.
9
terms of market value or excessive risk—is consistent with the
efficient market hypothesis that risk is accounted for in the
market price of a security. See id.; see also Halliburton Co., 134 S.
Ct. at 2411(“[I]t is reasonable to presume that most investors . . .
will rely on the security’s market price as an unbiased
assessment of the security’s value in light of all public
information.” (internal quotation marks omitted)).
Plaintiffs, picking up on the language of Fifth Third, assert
that “special circumstances affect[ed] the reliability of the market
price as an unbiased assessment of [Lehman’s] value.” J.A. 688
(TCAC ¶ 429). See Fifth Third, 134 S. Ct. at 2472 (“We do not here
consider whether a plaintiff could . . . plausibly allege
imprudence on the basis of publicly available information by
pointing to a special circumstance affecting the reliability of the
market price as ‘an unbiased assessment of the security’s value
in light of all public information, that would make reliance on
the market’s valuation imprudent.’”). As support for their claim
that “the market for Lehman stock faced unusual and
extraordinary circumstances,” J.A. 659 (TCAC ¶ 315) (internal
quotation marks omitted), Plaintiffs point to orders issued by the
Securities and Exchange Commission (“SEC”) in July 2008
prohibiting the short‐selling of securities of certain financial
services firms, including Lehman. Plaintiffs allege in Count II
that: (1) these SEC orders describe market conditions
constituting “special circumstances;” and (2) the orders
themselves created special circumstances by excluding naked
short sales of certain securities, including Lehman.
Under their first theory, Plaintiffs claim that the Plan
Committee Defendants “imprudently relied on the market’s
valuation of [Lehman] Stock during the Class Period,” J.A. 659
(TCAC ¶ 318), because the SEC’s orders warned, among other
things, that “there now exists a substantial threat of sudden and
10
excessive fluctuations of securities prices generally and
disruption in the functioning of the securities markets that could
threaten fair and orderly markets.” U.S. Sec. & Exchange
Comm’n, Emergency Order Pursuant to Section 12(k)(2) of the
Securities Exchange Act of 1934 Taking Temporary Action to Respond
to Market Developments at 2, Release No. 58166 (July 15, 2008),
available at http://www.sec.gov/rules/other/2008/34‐58166.pdf
(hereinafter “July 15 Order”). But the SEC orders speak only
conditionally about potential market effects resulting from so‐
called naked short sales;4 they do not purport to describe then‐
existing market conditions. Moreover, as the District Court
observed, “the only plausible inference supported by the TCAC
is that the market processed any risks identified in the SEC’s
orders as it would have processed any other public information
about Lehman.” In re Lehman Bros., 113 F. Supp. 3d 745, 759
(S.D.N.Y. 2015). Plaintiffs therefore cannot establish “special
circumstances” under this first theory.
As to their second theory, Plaintiffs’ conclusory assertions
do not give rise to a plausible inference that the SEC orders
“affect[ed] the reliability of the market price as ‘an unbiased
assessment of [Lehman’s] value in light of all public
information.’” Fifth Third, 134 S. Ct. at 2472. The TCAC parrots
language from Fifth Third, but “we are not bound to accept as
true a legal conclusion couched as a factual allegation.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). Given this defective pleading,
4 “In a ‘naked’ short sale, the seller does not borrow or arrange to
borrow the securities in time to make delivery to the buyer within the
standard three‐day settlement period. As a result, the seller fails to
deliver securities to the buyer when delivery is due.” “Naked Short
Sales,” Investor Information, U.S. SEC. & EXCHANGE COMM’N, SEC,
http://www.sec.gov/answers/nakedshortsale.htm (last modified April
13, 2015).
11
we need not decide whether the July 2008 SEC orders constitute
“special circumstances” within the meaning of Fifth Third.
The final two counts of the TCAC are alleged in the
alternative. Count III alleges that the Plan Committee
Defendants breached their fiduciary duties by failing to
investigate nonpublic information regarding the risks of
Lehman. See J.A. 689–94 (TCAC ¶¶ 433–47). Plaintiffs claim that
had the Plan Committee Defendants honored their fiduciary
obligation to conduct “an appropriate independent
investigation” into the riskiness of Lehman stock during the
class period, they would have uncovered nonpublic information
revealing the imprudence of continuing to invest in that stock.
J.A. 690–91 (TCAC ¶ 436). Count IV alleges that Defendant Fuld
inadequately monitored the Plan Committee Defendants and
breached his fiduciary duty by failing to share with those
Defendants nonpublic information he possessed regarding the
risks facing Lehman. See J.A. 694–97 (TCAC ¶ 448–59).
We agree with the District Court that Count III fails
because “the TCAC nowhere explains in a non‐conclusory
fashion how plaintiffs’ hypothetical investigation would have
uncovered the alleged inside information.” In re Lehman Bros.,
113 F. Supp. 3d at 762. Even without the Moench presumption
rejected by Fifth Third, it remains our standard that, to plead
plausibly a breach of the duty of prudence for failure to
investigate, “plaintiffs must allege facts that, if proved, would
show that an ‘adequate investigation would have revealed to a
reasonable fiduciary that the investment at issue was
improvident.’” In re Citigroup ERISA Litig., 662 F.3d at 141
(quoting Kuper v. Iovenko, 66 F.3d 1447, 1460 (6th Cir. 1995)). The
TCAC in this case includes “no specific allegations about what
lines of inquiry would have revealed this information or who, if
12
pressed, in fact would have disclosed it to the Plan Committee
Defendants.” In re Lehman Bros., 113 F. Supp. 3d at 762.
Moreover, as the District Court recognized, see Lehman,
113 F. Supp. 3d, at 763, the TCAC does not plausibly plead facts
and allegations showing that a prudent fiduciary during the
class period “would not have viewed [disclosure of material
nonpublic information regarding Lehman or ceasing to buy
Lehman stock] as more likely to harm the fund than to help it.”
Amgen, 136 S. Ct. at 759 (2016) (quoting Fifth Third, 134 S. Ct. at
2472). Amgen reinforces this conclusion. A prudent fiduciary
could have concluded that divesting Lehman stock, or simply
holding it without purchasing more, “‘would do more harm
than good.’” Amgen, 136 S. Ct. at 760 (quoting Fifth Third, 134 S.
Ct. at 2473). Such an alternative action in the summer of 2008
could have had dire consequences. Like the Plaintiffs in Amgen,
Plaintiffs here simply have not met the Fifth Third standard for
making out “sufficient facts and allegations to state a claim for
breach of the duty of prudence.” Id.
With regard to Defendant Fuld, the District Court
correctly observed that nothing in Fifth Third changes our
previous analysis dismissing Plaintiffs’ duty to monitor and
duty to inform claims. As we held previously, “Plaintiffs cannot
maintain a claim for breach of the duty to monitor . . . absent an
underlying breach of the duties imposed under ERISA” by the
Plan Committee Defendants. Rinehart, 722 F.3d at 154. Further,
the District Court correctly concluded that “ERISA does not
impose a duty on appointing fiduciaries to keep their appointees
apprised of nonpublic information.” In re Lehman Bros., 113 F.
Supp. 3d at 765. Though this Court has not yet squarely
addressed the issue, nothing in Fifth Third gives us reason to
alter our previous view that, “even if we determined that
Plaintiffs adequately alleged that the [Plan] Committee
13
Defendants had violated their duty of prudence, we would be
unlikely to conclude that the Director Defendants [including
Defendant Fuld] had a duty to keep the plan managers apprised
of material, nonpublic information regarding the soundness of
Lehman as an investment.” Rinehart, 722 F.3d at 154.
CONCLUSION
We agree with the District Court that, even without the
presumption of prudence rejected in Fifth Third, Plaintiffs have
failed to plead plausibly that the Plan Committee Defendants
breached their fiduciary duties under ERISA by failing to
recognize the imminence of Lehman’s collapse. We conclude
now, as before, that Plaintiffs have not adequately shown that
the Plan Committee Defendants should be held liable for their
actions in attempting to meet their fiduciary duties under ERISA
while simultaneously offering an undiversified investment
option for employees’ retirement savings. Accordingly, we
AFFIRM the judgment of the District Court.
14