23-1108 Singh v. Deloitte LLP

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2023

(Argued: May 24, 2024 Decided: December 10, 2024)

No. 23-1108

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RUPINDER SINGH, individually and on behalf of all others similarly situated, JEFFREY S. POPKIN, individually and on behalf of all others similarly situated, JONI WALKER, individually and on behalf of all others similarly situated, JENNY MARK, individually and on behalf of all others similarly situated,

Plaintiffs-Appellants,

-v.-

DELOITTE LLP, THE BOARD OF DIRECTORS OF DELOITTE LLP, THE RETIREMENT PLAN COMMITTEE OF DELOITTE LLP, JOHN DOES 1-30,

Defendants-Appellees.

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Before: LIVINGSTON, Chief Judge, NARDINI, and ROBINSON, Circuit Judges.

Participants in Deloitte LLP’s defined-contribution, 401(k) retirement plan brought a putative class action against plan fiduciaries, alleging breach of fiduciary duty in violation of the Employee Retirement Income Security Act (ERISA). The United States District Court for the Southern District of New York (Koeltl, J.) dismissed the action and subsequently denied Plaintiffs’ motion for

1 leave to file an amended complaint on futility grounds. We conclude that the district court did not err in concluding that Plaintiffs failed plausibly to allege that the Plan’s administrative and recordkeeping fees were excessive and that Defendants breached their duty of prudence by not obtaining lower fees. Accordingly, we AFFIRM the judgment of the district court. Judge Robinson concurs in part, and concurs in the judgment, in a separate opinion.

FOR PLAINTIFFS-APPELLANTS: MARK K. GYANDOH, Capozzi Adler, P.C., Merion Station, PA.

FOR DEFENDANTS-APPELLEES: MICHAEL E. KENNEALLY (Jared R. Killeen, on the brief, Morgan, Lewis & Bockius LLP, Philadelphia, PA) Morgan, Lewis & Bockius LLP, Washington, DC.

DEBRA ANN LIVINGSTON, Chief Judge:

Plaintiffs Rupinder Singh, Jeffrey Popkin, Joni Walker, and Jenny Mark,

individually and on behalf of a putative class (collectively, “Plaintiffs”), appeal

from a judgment entered on July 5, 2023 by the United States District Court for the

Southern District of New York (Koeltl, J.). The court denied Plaintiffs’ motion for

leave to file an amended complaint and entered final judgment on the ground that

further amendment of the complaint would be futile because Plaintiffs’ amended

complaint, like the original, fails plausibly to allege that defendants Deloitte LLP

(“Deloitte”), the Board of Directors of Deloitte LLP (the “Board”), and the

Retirement Plan Committee of Deloitte LLP (the “Committee”) (collectively,

“Defendants”) violated the Employment Retirement Income Security Act of 1974

(“ERISA”), 29 U.S.C. 1001 et seq., by breaching their fiduciary duties in managing

2 an employee retirement plan. 1 In the underlying action, Plaintiffs, Deloitte

employees during the putative class period, sued Defendants, fiduciaries of the

Deloitte 401(k) Plan (the “Plan”), for allegedly violating their duty of prudence by

failing adequately to manage the Plan’s recordkeeping and administrative fees,

which resulted in the payment of excessive fees by Plan participants. Reviewing

the proposed amended complaint de novo, we agree with the district court that

Plaintiffs have failed to plead sufficient factual matter to support a plausible

inference that Defendants breached their duty of prudence. Accordingly, we

AFFIRM.

BACKGROUND

I. Factual Background 2

Like many companies, Deloitte offered its employees the opportunity to

participate in voluntarily-established retirement plans, including the 401(k) Plan

at issue here, which is a “defined contribution plan” under ERISA § 3(34),

(34), in which all regular full-time employees who are not principals,

partners, or managing directors at Deloitte could participate. 3 Under the Plan’s

1The district court’s July 5, 2023 decision followed its January 13, 2023 memorandum opinion and order, which granted Defendants’ motion to dismiss Plaintiffs’ original complaint but permitted Plaintiffs to move to file an amended complaint if they could explain how doing so would cure the defects warranting dismissal.

Unless otherwise noted, the factual background presented here is drawn from the First Amended 2

Complaint (“FAC”).

3Deloitte also offered another retirement plan, the Deloitte Profit Sharing Plan (“PSP Plan”), a defined-contribution, profit-sharing plan in which partners, principals, and managing directors could

3 terms, participating employees could elect to contribute from one to sixty percent

of their compensation to the Plan, up to the maximum contribution permitted

pursuant to the Internal Revenue Code. Deloitte would make a matching

contribution of twenty-five percent of the employee’s contribution, so long as the

amount did not exceed six percent of the employee’s annual compensation.

Pursuant to the terms of the Plan, participants elected to have these contributions

invested in a range of investment options.

Plaintiffs allege that the Plan’s quantity of assets under management

rendered it a “jumbo” plan in the defined contribution plan marketplace. Between

2015 and 2019, the Plan had between 62,114 and 81,639 participants with account

balances. During the putative class period, from October 13, 2015 through the date

of judgment (“Class Period”), the Plan had at least $4.2 billion in assets under

management, including over $7.3 billion at the conclusion of fiscal year 2020.

The Plan incurred various expenses associated with its administration,

including for services provided by third parties. During the Class Period,

Vanguard provided recordkeeping and administrative services to the Plan.

Plaintiffs allege that the Plan covered Vanguard’s fees both directly, through

participate. Plaintiffs challenge only the Defendants’ conduct in managing the fees associated with the 401(k) Plan.

4 payments from Plan assets, and indirectly, in a practice known as revenue sharing,

from Plan investments. Plan participants paid an annual fixed sum each year for

recordkeeping services, which the Plan assessed as a quarterly charge against each

participant’s account.

Plaintiffs, participants in the Plan during the Class Period, allege that

“[n]early all recordkeepers in the marketplace offer the same range of services and

can provide the services at very little cost,” that “[n]umerous recordkeepers . . . are

capable of providing a high level of service and will vigorously compete to win a

recordkeeping contract for a jumbo defined contribution plan,” and that there are

“essential recordkeeping services provided by all national recordkeepers for large

plans with substantial bargaining power” offered “by all recordkeepers for one

price (typically at a per capita price), regardless of the services chosen or utilized

by the plan.” 4 FAC ¶¶ 66–69. Additional ancillary services are “normally

charged” only to participants who use them. FAC ¶ 69.

Plaintiffs claim that the recordkeeping costs for their Plan were higher than

for comparable peer plans. They allege that from 2015 to 2019, the Plan’s

4 As recounted by the district court, these include “basic account recordkeeping; multi-channel participant and plan sponsor access; daily participant transaction accounting; payroll service; participant tax reporting services; participant confirmations, statements, and standard notices; plan-level reporting and annual financial package; participant education; and plan consulting.” Singh v. Deloitte LLP (Singh II), No. 21-cv-8458 (JGK),

, at *1 (S.D.N.Y. July 5, 2023) (citing FAC ¶ 68).

5 recordkeeping cost per participant ranged from $59.58 to $70.31, as compared to

six other plans with at least 30,000 participants, for which the cost per participant

in 2019 ranged from $21 to $34. Plaintiffs allege that they paid excessive

recordkeeping fees in connection with the Plan because Plan fiduciaries failed to

“negotiate favorable rates” based on economies of scale. See FAC ¶ 74. Plaintiffs

surmise that because the Plan has used Vanguard as its recordkeeper since 2004

and was allegedly paying excessive amounts during the Class Period, Defendants

failed to “remain informed about overall trends in the marketplace” for

recordkeeping fees by conducting a Request for Proposal process at reasonable

intervals. FAC ¶¶ 79, 92. They claim that “the Plan could have obtained

recordkeeping services that were comparable to or superior to the typical services

provided by the Plan’s recordkeeper at a lower cost.” FAC ¶ 113.

II. Procedural History

Plaintiffs commenced this action on October 13, 2021 alleging, inter alia, that

the recordkeeping fees charged by the Plan were excessive and that the Defendants

had breached their duty of prudence in managing the Plan. Defendants promptly

filed a motion to dismiss. The district court granted the motion on the ground that

Plaintiffs failed plausibly to allege that the Plan’s recordkeeping fees “were

6 excessive relative to the services rendered.” Singh v. Deloitte LLP (Singh I),

, 266 (S.D.N.Y. 2023) (internal quotation marks omitted). The

complaint, the district court observed, “must allege more than just that the 401(k)

Plan’s recordkeeping fees were higher than those of other plans.”

Accepting

as true Plaintiffs’ allegation that almost all recordkeepers offer the same range of

services, the district court observed that “plaintiffs still do not allege, with

specificity, what recordkeeping services the 401(k) Plan received from Vanguard,”

nor “what recordkeeping services the comparator plans received . . . .”

.

The court also noted that Plaintiffs had “disingenuous[ly]” compared the Plan’s

combined direct and indirect costs for recordkeeping with only the direct costs of

the comparator plans.

“Because the plaintiffs’ comparison does not compare

apples to apples, the comparison fails to indicate plausibly imprudence on the part

of the defendants.”

Plaintiffs filed their FAC on February 27, 2023. The FAC included additional

material detailed in the district court’s July 5, 2023 memorandum opinion and

order, including comparisons between the direct costs of the Plan and comparator

plans, allegations that Defendants have sole possession of relevant Plan

disclosures, and an expert declaration opining that the Plan charged excessive

7 recordkeeping and administrative fees. Singh II,

, at *1–2 . Upon

review of Plaintiffs’ proposed amended complaint, the district court denied

Plaintiffs’ motion to amend on futility grounds, concluding that Plaintiffs had not

cured the pleading deficiencies in their original complaint.

As to the comparison of the Plan’s direct costs for recordkeeping with the

direct costs of comparator plans, the district court noted that this comparison shed

limited light on the plausibility of Plaintiffs’ allegation that the Plan’s total

recordkeeping costs were excessive given, inter alia, that “plaintiffs’ allegations

highlight that a plan’s indirect costs may range widely from year-to-year.”

. More generally, the district court concluded that the proposed amended

complaint still lacked sufficient factual allegations regarding the type and quality

of recordkeeping services provided by the Plan and its allegedly less-expensive

comparators: “Without allegations comparing specifically the quality of services

rendered, or the number of services provided, between the Plan and its

comparators, the conclusory allegations that ‘[n]early all recordkeepers in the

marketplace offer the same range of services’ and ‘[n]umerous recordkeepers in

8 the marketplace are capable of providing a high level of service,’” failed to state a

plausible claim. 5 Singh II,

, at *4. This appeal followed.

DISCUSSION

This Court reviews de novo the district court’s decision to deny leave to

amend a complaint due to futility. Balintulo v. Ford Motor Co.,

(2d

Cir. 2015). Futility arises when a proposed amended complaint “could not

withstand a motion to dismiss.” Lucente v. IBM Corp.,

(2d Cir.

2002). “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,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)). In evaluating the proposed complaint, the Court must

“construe it liberally, accepting all factual allegations therein as true and drawing

all reasonable inferences in the plaintiffs’ favor.” Sacerdote v. New York Univ.,

, 106–07 (2d Cir. 2021), cert. denied,

(2022). However,

5 The district court also concluded that Plaintiff’s reliance on the expert declaration of Francis Vitagliano at the motion to dismiss stage was improper, and that the Vitagliano declaration “is simply a conclusory statement of the plaintiff’s argument and . . . does not move the allegations from possible to plausible.”

at *5–*6. Plaintiffs do not meaningfully contest on appeal the district court’s conclusion that their reliance on an expert declaration at the motion to dismiss stage was misplaced. Accordingly, we do not consider the declaration’s contents nor review the district court’s conclusion regarding the appropriateness of the declaration’s attachment to the complaint. See In re Platinum & Palladium Antitrust Litig.,

, 276 (“[A]rguments not made in an appellant’s opening brief are waived . . . .”(internal quotation marks omitted)).

9 “[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal,

.

ERISA fiduciaries must act prudently in managing an employee benefit

plan, discharging their duties “with the care, skill, prudence, and diligence under

the circumstances then prevailing” that a prudent person “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.”

(a)(1)(B). The Supreme Court has

interpreted ERISA’s duty of prudence in light of the common law of trusts,

explaining that “a fiduciary normally has a continuing duty of some kind to

monitor investments and remove imprudent ones.” 6 Hughes v. Northwestern Univ.

(Hughes II),

(2022) (quoting Tibble v. Edison Int’l,

,

(2015)). That said, the prudence inquiry is necessarily context specific and “the

circumstances facing an ERISA fiduciary,” often enough, “will implicate difficult

tradeoffs.” Id. at 177. Courts must therefore “give due regard to the range of

reasonable judgments a fiduciary may make based on her experience and

expertise.” Id. It is not “necessarily sufficient to show that better investment

opportunities were available at the time of the relevant decisions.” Pension Ben.

6Plaintiffs’ claim of excessive fees constitutes an imprudent investment claim. See Young v. Gen. Motors Inv. Mgmt. Corp., 325 Fed. App’x 31, 33 (2d Cir. 2009) (per curiam).

10 Guar. Corp. ex rel. St. Vincent Catholic Med. Centers Ret. Plan v. Morgan Stanley Inv.

Mgmt. Inc.,

(2d Cir. 2013) (citing Braden v. Wal-Mart Stores, Inc.,

, 596 n.7 (8th Cir. 2009)).

Evaluating the amended complaint in light of these standards, we agree

with the district court that the FAC fails to do more than allege conclusorily that

the Plan’s recordkeeping fees exceeded those of a select handful among the many

other plans available on the market. But as we said in Young, plaintiffs need

plausibly to allege that challenged fees “were excessive relative ‘to the services

rendered,’” or to provide allegations “concerning other factors relevant to

determining whether a fee is excessive under the circumstances.” Young, 325 Fed.

App’x at 33 (citing Gartenberg v. Merrill Lynch Asset Mgmt.,

, 928 (2d

Cir. 1982)). 7 For just as “the cheapest investment option is not necessarily the one

a prudent fiduciary would select,” Albert v. Oshkosh Corp.,

(7th

Cir. 2022), reh’g denied, No. 21-2789,

(7th Cir. Sept. 21, 2022), so,

7 Plaintiffs contend that Young is inapposite because it applied the Investment Company Act (“ICA”). But the Young panel did not apply the ICA. The panel simply considered how courts applying that Act determine whether a fee is excessive to inform its consideration of a ERISA complaint alleging breach of fiduciary duty in the failure to prevent excessive recordkeeping fees. Moreover, Young’s observation that plaintiffs in such cases should provide sufficient context to support a plausible inference “that the fees were excessive relative to the services rendered,” 325 Fed. App’x at 33, is simply common sense. See Mator v. Wesco Distrib., Inc.,

(3d Cir. 2024) (“Judges draw on ‘common sense’ when ‘determining whether a complaint states a plausible claim for relief.’” (quoting Iqbal,

) (alterations adopted)). A buyer cannot determine if he has paid too much for an item without knowing what it is that he purchased.

11 too, a prudent fiduciary might select a higher-priced recordkeeping arrangement

depending on, inter alia, the nature and quality of the services provided. Singh II,

, at *4. We thus examine recordkeeping complaints, as all

complaints, for their context, to determine whether the facts alleged “give the kind

of context that . . . move [the recordkeeping] claim from possibility to plausibility.”

Smith v. CommonSpirit Health,

(6th Cir. 2022). See also Matney v.

Barrick Gold of N.A.,

, 1149 (10th Cir. 2023) (“A court cannot reasonably

draw an inference of imprudence simply from the allegation that a cost disparity

exists; rather, the complaint must state facts to show the funds or services being

compared are, indeed, comparable.”); Matousek v. MidAmerican Energy Co.,

(8th Cir. 2022) (“[T]he way to plausibly plead a claim of this type is to

identify similar plans offering the same services for less.”).

Here, Plaintiffs allege next to nothing about the recordkeeping services

provided by the Plan or by the six other large plans that the FAC cites as allegedly

lower-priced comparators. 8 Nor do they provide allegations as to “other factors,”

as we put it in Young, “relevant to determining whether a fee is excessive under

8 Two of the comparators, Kaiser Permanente Supplemental Savings and Retirement Plan and The Savings and Investment Plan [WPP Group], also use Vanguard for recordkeeping. But, without factual context, we have no reason to infer that the services provided by Vanguard to other plans are comparable.

12 the circumstances.” Young, 325 Fed. App’x at 33. Thus, while the FAC

conclusorily alleges that “[n]early all recordkeepers in the marketplace offer the

same range of services,” FAC ¶ 66, it is silent on the number of services actually

provided by either the Plan or its alleged comparators. Similarly, the FAC asserts

that “[n]umerous recordkeepers in the marketplace are capable of providing a

high level of service,” FAC ¶ 67, but “does not allege what level of service the Plan

provided,” nor “whether less expensive comparator plans provided a similar

quality of service . . . .” Singh II,

, at *4. Plaintiffs suggest that the

absence of context in the FAC does not matter because “[t]he services chosen by a

large plan do not affect the amount charged by recordkeepers for [the] basic and

fungible services” that constitute “essential recordkeeping services provided by

all national recordkeepers for large plans with substantial bargaining power.”

. But the FAC’s own allegations, however sparse, show a range of

recordkeeping fees even among the six large comparator plans, belying the

implication that the allegation of a cost disparity alone, without some

consideration of the surrounding context, categorically suggests imprudence. See

Matney, 80 F.4th at 1148 (noting that while “there is no doubt a claim for breach of

ERISA’s duty of prudence can be based on allegations that the fees associated with

13 [a] defined-contribution plan are too high compared to available, cheaper

options,” plaintiff must allege a “meaningful benchmark” to raise inference of

imprudence) (quoting Meiners v. Wells Fargo & Company,

(8th Cir.

2018)). 9

Nor are our concerns allayed by the allegations that are included in the FAC

regarding Plaintiffs’ cost comparisons to other plans. While we have recognized

that “details about a fiduciary’s methods and actual knowledge tend to be ‘in the

sole possession of [that fiduciary],’” it is also the case that “ERISA imposes

extensive disclosure requirements on plan administrators.” St. Vincent, 712 F.3d

at 719–20 (quoting Braden,

). And here, Plaintiffs do not appear to

draw “apple-to-apple” comparisons even when relying on disclosure documents

filed by the Plan and its alleged comparators – documents we properly consider

here, when integral to the FAC. See Chambers v. Time Warner, Inc.,

(2d Cir. 2002) (noting material “integral” to complaint is properly considered

in resolving Rule 12(b)(6) motion).

9 The concurrence relies on the Vitagliano declaration to conclude that Plaintiffs sufficiently alleged the scope and quality of services provided to comparator plans. See Concurrence at 1–7. Although we have found it permissible for “a plaintiff to bolster a complaint by including a nonconclusory opinion to which an expert may potentially testify,” an opinion cannot “rescue” a deficient pleading. Ark. Pub. Emps. Ret. Sys. v. Bristol-Myers Squibb Co.,

(2d Cir. 2022). As already noted, see supra note 5, the district court determined that Vitagliano’s declaration is simply a “conclusory statement of the plaintiff’s argument.” Even if we were to consider the declaration, we discern no error in this conclusion.

14 First, following the district court’s criticism of the original complaint’s

comparison of the Plan’s combined direct and indirect recordkeeping costs with

solely the direct costs of comparator plans, the FAC compares the direct costs of

the Plan with the direct costs of its six comparator plans. By omitting indirect costs

from the analysis altogether, however, the FAC fails to compare total

recordkeeping costs, which Plaintiffs allege comprise both direct and indirect fees.

As the district court noted, the comparison of direct costs alone provides limited

insight into whether total recordkeeping fees paid by the Plaintiffs were excessive,

as compared to other plans. Singh II,

, at *4. 10

Next, the main comparison Plaintiffs make in the FAC is between the Plan’s

alleged direct recordkeeping costs per participant from 2015 to 2019 (ranging from

$46.23 to $65.24 per participant annually) and the alleged direct recordkeeping

costs per participant for the six other large plans in the year 2019 (ranging from

$21 to $34 per participant annually). But Plaintiffs fail to explain why they

compare the Plan’s direct recordkeeping costs in each of five years to the

comparator plans’ direct recordkeeping costs from just 2019, without “otherwise

consider[ing] or alleg[ing] any facts regarding possible differences in cost between

10 We note the concurrence agrees that Plaintiffs’ complaint is deficient as to this comparison and therefore joins in the judgment. Concurrence at 1, 12.

15 2015 and 2019, the time period relevant to this case.” Singh II,

,

at *4. This limits our ability to draw inferences about the fee differential over the

course of the Class Period. 11

Plaintiffs’ remaining allegations also “fail[] to give the kind of context that

could move this claim from possibility to plausibility.” Smith,

.

Plaintiffs first allege that the fact that the Plan remained with the same

recordkeeper, Vanguard, since at least 2004 and paid allegedly “outrageous

amounts for recordkeeping from 2015 to 2017” provides “little to suggest that

Defendants conducted a [Request for Proposal] at reasonable intervals.” FAC

¶ 92; see FAC ¶ 79. Yet this inference about the Defendants’ decision-making

process relies on the assumption that the Plan’s recordkeeping fees were excessive

relative to the services rendered, a proposition that the Plaintiffs have not

adequately alleged. Next, Plaintiffs cite a stipulation from recordkeeper Fidelity

in an unrelated suit, stating that the value of recordkeeping services provided by

11 In addition, Plaintiffs allege that they frame the allegations in their complaint in reliance on a

number of available fee disclosures, including Section 404a disclosures and Form 5500s filed with the Department of Labor. FAC ¶ 86. Pursuant to Department of Labor regulations, Section 404a-5 disclosures provide plan participants with information regarding the annual fees charged for plan administrative services, including recordkeeping services. See

.404a-5. The 404(a) disclosures here, however, suggest that annual per-participant recordkeeping and other administrative fees for the Plan declined or stayed stagnant each year from 2015 ($40) to 2022 ($22), and were lower than the FAC’s fee calculations. Supp. App’x 290, 304, 318, 330, 343, 356, 369, 450. We accept as true the FAC’s allegations as to the Plan’s direct recordkeeping costs, but note that this discrepancy goes unremarked in the FAC.

16 Fidelity to the plan in that litigation ranged from $14 to $21 per participant. But

the FAC does not specify the recordkeeping services provided by Fidelity to its

client, or otherwise provide sufficient context to infer that these services are

comparable to the services that Vanguard provided here. Finally, Plaintiffs point

to a 2020 market survey by consulting group NEPC, which allegedly shows that

the majority of a sample of 121 plans with over 15,000 participants, across the

corporate, healthcare, and “[p]ublic, [n]ot-for-[p]rofit and other” sectors, “paid

slightly over $40 per participant” for recordkeeping and related fees. FAC ¶¶ 109–

110. But this allegation, too, lacks sufficient context to infer that the services these

plans provided are comparable to those provided by the Plan here, or that this

sample otherwise provides a meaningful benchmark for use in assessing the Plan’s

recordkeeping fees over the course of the Class Period.

Plaintiffs contend that their complaint “easily satisf[ies] the pleading

requirements of Albert and Smith as clarified by the Seventh Circuit in Hughes.”

Appellant’s Br. at 36–37. We disagree. In Hughes v. Northwestern University

(Hughes III), the Seventh Circuit held that the plaintiffs there had adequately

pleaded an ERISA imprudence claim based on excessive recordkeeping fees.

, 633 (7th Cir. 2023). But the Hughes complaint presents a different picture

17 than the one we are faced with here. Hughes concluded that plaintiffs pleaded a

plausible claim of breach because they made multiple allegations relevant to

concluding that the fee was excessive. The plaintiffs contended that “the quality

or type of recordkeeping services provided by competitor providers [was]

comparable to that provided by Fidelity and TIAA,” the recordkeepers at issue.

. The plaintiffs also pleaded that Northwestern had behaved imprudently

by maintaining a second recordkeeper while other plans consolidated to a single

recordkeeper for the same services.

And they provided concrete examples of

other university plans “that successfully reduced recordkeeping fees by soliciting

competitive bids, consolidating to a single recordkeeper, and negotiating rebates.”

These specific allegations, considered together, provided a plausible “basis

upon which to infer that” Northwestern paid excessive fees. Young, 325 Fed App’x

at 33; cf. Matousek,

(noting that “key to nudging an inference of

imprudence from possible to plausible is providing ‘a sound basis for comparison

. . .’ not just alleging that ‘costs are too high, or returns are too low’”) (quoting

Davis v. Washington Univ. in St. Louis,

(8th Cir. 2020)). Plaintiffs’

sparse allegations here are simply not comparable. See Young, 325 Fed. App’x at

33 (noting importance of such context to plausibility determination).

18 Plaintiffs further urge that we reverse the district court “[b]ecause the [FAC]

pleads similarly robust allegations” to the complaint in Mator v. Wesco Distribution,

Inc.,

(3d Cir. 2024). Appellant’s Fed. R. App. P. 28(j) Letter (May 17,

2024). Again, this is incorrect. The complaint in Mator pled with specificity the

recordkeeping services provided by the Wells Fargo plan, as well as the similarity

of these services to those provided by lower-priced comparators. For instance, the

Mator plaintiffs specifically alleged that the price per person of total recordkeeping

costs for Wells Fargo was three to four times that of five other plans serviced by

Wells Fargo itself, even though these other plans received the “same services

described in Paragraphs 93 and 94 [describing the plan’s services provided to

plaintiffs and other plan participants] and the same level and quality of

service.” Second Amended Compl., ¶ 105, Mator v. Wesco Distrib. Inc., No. 2:21-

cv-00403 (W.D. Pa. Apr. 21, 2022). The Mator complaint also compared the Wells

Fargo plan’s fees to those of 11 other plans serviced by several of the “top

recordkeepers by number of plans for plans with assets in excess of $200 million,”

id. ¶ 107, which “all provided identical or similar services of the same quality” to

those provided by Wells Fargo to the plan, id. ¶ 108.

19 In addition, the Mator plaintiffs provided a comparison of estimated total

fees, as opposed to direct fees alone, and also specifically alleged “that either the

Plan’s ‘direct fees alone’ or its ‘indirect fees alone’ were ‘unreasonable compared

to the total fees . . . that other similar plans paid.’” Mator,

.

Moreover, the plaintiffs alleged that when the plan at issue there switched

recordkeepers in 2020, it “paid a much lower flat fee . . . per participant” for the

same services, delivered at the same level of quality.

As noted by the Third

Circuit, the pleading thus contained a nonconclusory, fact-based allegation that:

when the Plan switched to Fidelity for recordkeeping services, lowering fees from about $154 to $54 per participant, there was no change in the kind or quality of recordkeeping services provided to participants. In other words, Fidelity’s services allegedly were as good as Wells Fargo’s, but at a fraction of the price.

. The Mator court thus reached its conclusion that the fee comparisons at

issue, considered in context, “nudge[d] the[] complaint across the line from

conceivable to plausible,” based on “a close examination of the complaint and

attached documents.”

. Using the same approach and considering the

lack of context and sparse specific factual allegations in the FAC, we reach a

different result.

20 In sum, we agree with the district court that Plaintiffs’ recordkeeping claim

fails the “context-sensitive scrutiny of a complaint’s allegations” that we are

charged to perform on a motion to dismiss. Dudenhoeffer, 573 U.S. at 425. Absent

greater specificity as to the type and quality of services provided by the Plan and

its comparators – or absent other allegations providing the context that might

move this recordkeeping claim “from possible to plausible,” Matousek,

– Plaintiffs fail to state a claim for breach of the duty of prudence. Accordingly,

this claim was properly dismissed.

Finally, Plaintiffs further charge that Deloitte and its Board failed

adequately to monitor the other fiduciaries to ensure they adequately fulfilled

their fiduciary obligations and properly managed the Plan in accordance with

ERISA. Both parties agree, however, that this claim is derivative of the claim that

Defendants violated the duty of prudence owed to Plan participants. See Coulter

v. Morgan Stanley & Co. Inc.,

(2d Cir. 2014) (explaining that a

failure to monitor claim “constitute[s] [a] derivative claim[] that cannot survive

absent a viable claim for breach of a duty of prudence”). Because we agree with

the district court that the fiduciary duty claim is properly dismissed, it follows that

the motion to dismiss this derivative claim was also properly granted.

21 CONCLUSION

For the foregoing reasons, we AFFIRM.

22 23-1108-cv Singh v. Deloitte

ROBINSON, Circuit Judge, concurring in part and concurring in the judgment.

I agree that if a plaintiff relies on market comparisons to support a claim

based on circumstantial evidence that Plan Administrators have breached their

duty of prudence by paying excessive recordkeeping fees, the comparisons must

be apples-to-apples. Majority at 14-15. And I agree that Plaintiffs’ allegations

here are insufficient because comparing only the direct recordkeeping costs paid

by the Plan to the direct costs paid by other plans, and omitting any comparison

of indirect costs—that is, fees paid through revenue sharing—gives “limited

insight into whether total recordkeeping costs paid by the Plaintiffs were

excessive, as compared to other plans.” Id. at 15.

But I part ways with the majority with respect to the sufficiency of

Plaintiffs’ allegations concerning the scope and quality of services provided to

the respective comparator plans. In my view, the majority’s analysis fails to

“accept[] as true” the well supported factual allegations in the First Amended

Complaint (“FAC”) as to the bundle of recordkeeping services available to

comparable Plans, the relationship between the mix of services provided and

price, and the relative quality of those services. Ashcroft v. Iqbal,

(2009). In doing so, it imposes an unwarranted burden at the pleadings stage on plaintiffs seeking to protect their rights under ERISA—a statute Congress

intended to “function as a comprehensive remedial statute.” Allen v. Credit Suisse

Securities (USA) LLC,

(2d Cir. 2018) (internal quotation marks

and citation omitted).

I reach this conclusion for several reasons.

First, Plaintiffs’ First Amended Complaint 1 explains in a nonconclusory

way, and with support from an expert declaration, why we can infer that the

scope and quality of services provided to comparator plans are comparable to

those of the Plan here for purposes of comparing the respective plans’ relative

costs.

As to the bundle of services provided, the FAC alleges that all national

recordkeepers for large plans with substantial bargaining power, like the Plan,

include the same suite of essential services:

A. Basic account recordkeeping (e.g. demographic, source, investment and vesting records);

1Like the Majority, I draw from the allegations in Plaintiffs’ First Amended Complaint. The Majority declines to consider the declaration of Plaintiffs’ expert because Plaintiffs’ opening brief did not contest the district court’s observation that the declaration is “simply a conclusory statement of the plaintiff’s argument.” See Majority at 9 n.5 (quoting Singh v. Deloitte LLP, 21-cv- 8458,

, at *6 (S.D.N.Y. July 5, 2023)). Because the FAC relies extensively on the Declaration of Francis M. Vitagliano—which was filed as an exhibit to the FAC—I find it impossible to consider one without the other. See Chambers v. Time Warner, Inc.,

(2d Cir. 2002) (“[A] court may consider documents attached to the complaint as an exhibit or incorporated in it by reference.”) (internal quotation marks and citation omitted).

2 B. Multi-channel participant and plan sponsor access (e.g. phone, web); C. Daily participant transaction accounting (e.g., purchases, redemptions, exchanges); D. Payroll service (e.g. hardships, in-service withdrawals, termination distributions); E. Participant tax reporting services (e.g., IRS Form 1099-R); F. Participant confirmations, statements, and standard notices; G. Plan-level reporting and annual financial package (excluding IRS Form 5500); H. Participant education (e.g. newsletters, web articles, standard communication materials); I. Plan consulting (e.g., preapproved document services, operational materials); J. Plan consulting (e.g. preapproved document services, operational compliance support).

App’x 105-106 (FAC ¶ 68).

Critically, the FAC alleges that these services are offered by all

recordkeepers in this class for one price, typically a per capita price, “regardless

of the services chosen or utilized by the plan.” App’x 106 (FAC ¶ 69). “Ancillary

services,” like “QDRO’s, participant loans, and self-directed brokerage accounts

are normally charged to only participants using those ancillary services.”

Moreover, “[a]lthough the 401(k) participant servicing can vary slightly in

the various service levels, the actual cost to a large record keeper with a very

robust participant servicing system remains almost constant notwithstanding the

level and sophistication of participant servicing the employer has elected . . .”

3 App’x 107-08 (FAC ¶ 74). “Accordingly, a plan sponsor or fiduciary has the

leverage to negotiate favorable rates given that costs of implementation do not

change for the service provider.”

With respect to the quality of services provided, the FAC tells us that “[t]he

recordkeepers in the top ten are all capable of providing the same quality of

service and they must do so to succeed in the very highly competitive 401(k)

service provider arena.” App’x 112 (FAC ¶ 91); see also App’x 132-35 (Vitagliano

Decl. at ¶¶ 29-38 (describing facts about the market for 401(k) recordkeeping

services that inform these conclusions)).

In light of these allegations, I take issue with the Majority’s assertion that

“Plaintiffs allege next to nothing about the recordkeeping services provided by

the Plan or by the six other large plans that the FAC cites as allegedly lower-

priced comparators.” Majority at 12. Plaintiffs have alleged that the class of

recordkeepers that provide services to plans like the Plan and the identified

comparators offer the same suite of specified services, and they’ve told us what

those services are. And they have alleged that the actual price these large

recordkeepers charge a Plan does not depend on the specific services elected. In

short, the FAC asserts that significant pricing differences in recordkeeping fees in

4 plans at this level cannot be attributed to variations in the bundles of services

accepted by a given plan, and that a line-by-line comparison of the individual

recordkeeping services actually adopted by each comparator plan with those

used by the Plan here would tell us little about the relative differences in plan

costs.

These allegations tell us all we need to know at the pleading stage to

satisfy ourselves that Plaintiffs have alleged an apples-to-apples comparison with

respect to the scope and quality of services provided to the Plan and the

comparators. 2 And the allegations, backed by the declaration of an expert with

extensive experience in the relevant market who offers robust explanations for

these conclusions, are far from the kind of “labels and conclusions” or “naked

assertions” that we can properly disregard in assessing the sufficiency of a

complaint. Iqbal,

(alteration accepted) (quoting Bell Atlantic Corp.

v. Twombly,

(2007)).

In fact, the allegations here are more detailed than those the Seventh Circuit

deemed sufficient to plausibly allege that recordkeeping fees were excessive

relative to services provided in Hughes v. Northwestern University.

(7th

2As noted above, I agree with the majority that the comparison as to price is not apples to apples.

5 Cir. 2023). In Hughes, the plaintiffs alleged, among other things, that fiduciaries

of two Northwestern University retirement plans subject to ERISA breached the

duty of prudence by incurring unreasonable recordkeeping fees. Plaintiffs

alleged that Northwestern paid about four to five times a reasonable per-

participant recordkeeping fee for the plans because it paid through uncapped

revenue-sharing arrangements. They alleged that Northwestern should have

lowered its expenses by consolidating from two recordkeepers to one, soliciting

competitive bids, and using its size and bargaining power to negotiate for fee

rebates. See

at 621–22.

Relative to the services provided in exchange for the recordkeeping fees,

the plaintiffs alleged that “[t]here are numerous recordkeepers in the

marketplace who are equally capable of providing a high level of service to large

defined contribution plans like the [Northwestern plans]” and that

recordkeeping services are “commoditized” such that “recordkeepers primarily

differentiate themselves based on price, and will aggressively bid to offer the best

price in an effort to win the business, particularly for jumbo plans like the

[Northwestern plans].”

. The Seventh Circuit concluded that these

6 allegations were sufficient to plead that “the fees were excessive relative to the

recordkeeping services rendered.”

(emphasis added).

True, as the Majority notes, the Seventh Circuit also identified other

features of Northwestern’s plans—in particular, its reliance on two separate

recordkeepers rather than one—to support that court’s ultimate inference that

Northwestern violated its duty of prudence.

But as to the question whether

the complaint plausibly alleged that the recordkeeping fees were excessive

relative to the recordkeeping services rendered—the primary issue the Majority

highlights here—the court did not rely on these other considerations.

Second, we’re at the pleadings stage. We must construe the complaint

“liberally, accepting all factual allegations therein as true and drawing all

reasonable inferences in the plaintiff’s favor.” Sacerdote v. New York University,

, 106–07 (2d Cir. 2021) (citation omitted). Though we have acknowledged

that particular care is required to ensure that a complaint alleges “nonconclusory

factual content raising a plausible inference of misconduct,” we have also

recognized that “ERISA plaintiffs generally lack the inside information necessary

to make out their claims in detail unless and until discovery commences.”

(emphasis in original) (quoting Pension Ben. Guar. Corp. ex rel. St. Vincent

7 Catholic Medical Centers Retirement Plan v. Morgan Stanley Investment Management

Inc.,

(2d Cir. 2013)). And we have acknowledged that, “as is

true in many contexts, a claim under ERISA may withstand a motion to dismiss

based on sufficient circumstantial factual allegations to support the claim, even if

it lacks direct allegations of misconduct.”

(citation omitted). In short, there is

not a heightened pleading standard for these kinds of ERISA claims.

at 108

n.47 (noting that ERISA complaints are not subject to a heightened pleading

standard, and that an ERISA plaintiff need not rule out lawful explanations for

the defendant’s conduct).

Moreover, even if, as noted below, some contexts call for particular caution

in evaluating claims for breach of the duty of prudence under ERISA, the

sensitivities underlying that guidance carry relatively little weight in the context

of this challenge to recordkeeping costs. Bear in mind, we have repeatedly

emphasized that whether allegations establish a plausible rather than merely

possible claim of breach of the duty of prudence is context specific. Sacerdote, 9

F.4th at 108–09 (“[T]he assessment of any particular complaint is a ‘context-

specific task.’”) (citation omitted); Pension Ben. Guar. Corp.,

(“‘Determining whether a complaint states a plausible claim for relief is a

8 context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.’” (alterations accepted)) (quoting Iqbal,

(2009)).

So, for example, in assessing whether a pension fiduciary breached the

duty of prudence by over-investing in high-risk investments including non-

agency mortgage securities—a decision that proved ill-fated in the wake of the

financial crisis that unfolded in 2008—we explained that the nature of the

plaintiffs’ allegations called for “particular care” in order to ensure that the

complaint alleged nonconclusory facts raising a plausible inference of misconduct

“and does not rely on ‘the vantage point of hindsight.’” Pension Ben. Guar. Corp.,

(emphasis in original) (citation omitted).

The Plaintiffs here do not challenge the Plan fiduciaries’ investment

decisions or portfolio allocations—forward-looking decisions that require

sometimes complex predictions about the future that can appear particularly

unwise in the harsh light of hindsight. The decisions here involve recordkeeping

fees—fees for managing the administrative side of the Plan. As set forth above,

the services required are specified and predictable. So are the recordkeeping

fees, which are a matter of contract. The only X factor is the portion of fees that

9 are paid through revenue sharing—that is, drawn from revenues from Plan

investments. The actual cost of those fees cannot be predicted, though they can

be significantly managed through advance negotiation. This is nothing like the

complex forward looking investment decisions that may require “particular

care” within the established motion-to-dismiss framework.

Finally, as noted above, ERISA is a remedial statute. Allen,

(“Congress intended that ERISA function as a comprehensive remedial statute.”)

(internal quotation marks and citation omitted). We thus construe its terms

liberally to effectuate its remedial purpose.

See also Roberts v. Genting New

York LLC,

(2d Cir. 2023) (“Because it is a remedial statute, we

construe the WARN Act’s terms liberally.”) (citation omitted); N.C. Freed Co., Inc.

v. Board of Governors of the Federal Reserve System,

(2d Cir.

1973) (“Since the [Consumer Credit Protection Act] is remedial in nature, its

terms must be construed in liberal fashion if the underlying Congressional

purpose is to be effectuated.”) (citing Peyton v. Rowe,

, 64–65 (1968);

Tcherepnin v. Knight,

(1967)). That makes sense. Congress

enacted ERISA in part to protect the hard won earnings of ordinary people who

have limited control over important decisions regarding what is for many their

10 most important asset. Courts should be loath to interpose undue obstacles in the

path of plaintiffs seeking to protect their ERISA rights. See also Pension Ben. Guar.

Corp.,

(Straub, J., dissenting in part) (noting concern that

“heightened pleading requirements threaten to obstruct ERISA’s remedial goals”

because Congress intended ERISA’s standards to be “enforced in part by private

litigation”) (citations omitted).

Plaintiffs here and in like cases have a tough row to hoe. In a world where

recordkeeping fees are sometimes collected through a combination of direct

charges and indirect revenue sharing, it’s not at all clear whether and how they

will be able to determine the total recordkeeping costs paid by comparator plans

in order to plausibly state a circumstantial claim for breach of the duty of

prudence based on comparisons to other plans. But in a world where the bundle

of recordkeeping services available to a particular class of plans is predictable,

and the range of services chosen by a plan has minimal impact on its actual

recordkeeping costs—per Plaintiffs’ allegations, the world we live in—the failure

to itemize the specific services provided to the subject plan and each comparator

does not defeat a circumstantial evidence-based claim of breach of the duty of

prudence.

11 For these reasons, I concur in part and concur in the judgment.

12