Mar 31, 2008 (PLANSPONSOR.com) -- An early "win" for plan sponsors (perhaps more accurately, a win for a plan sponsor) was Hecker v. Deere & Co.

That's the case where, last June, U.S. District Judge John Shabaz tossed "with prejudice and costs" allegations that the plan had incurred excessive fees and had violated its fiduciary obligations by not disclosing revenue-sharing relationships to participants (see " IMHO: Fighting Words ").   It was, many experts said at the time (including this writer), a correct decision, but bad law, with Shabaz too broadly (IMHO) applying the shield of ERISA 404c to excuse an entire series of fiduciary responsibilities not encompassed by that statute.

Not surprisingly, that decision has been appealed—and this time, the Department of Labor has offered its opinion as a "friend of the court" (see " DoL: ERISA Fiduciaries Could Have Disclosure Mandate Not Specified in Law ").   And perhaps not surprisingly, the DoL also seems to think that Judge Shabaz missed the boat on a number of his conclusions.

No 404(c) Immunity

First and foremost, the DoL  stated that "the statutory safe harbor in section 404(c) does not immunize the Plans' fiduciaries to the extent they acted imprudently in offering investment options with excessive fees"— and also that "section 404(c) does not give fiduciaries a defense to liability for their own imprudence in the selection or monitoring of investment options available under the plan."   Further, that "[a]ll of the fiduciary provisions of ERISA remain applicable to both the initial designation of investment alternatives and investment managers and the ongoing determination that such alternatives and managers remain suitable and prudent investment alternatives for the plan."     None of those statements are particularly controversial, IMHO, though they may surprise some that have seen 404(c) as some kind of magic talisman to ward off all fiduciary evils.

In fact, in its amicus brief, the DoL noted that "[i]f, as alleged, the defendants violated their fiduciary duties by selecting investment options with excessive fees, section 404(c) provides no defense to their fiduciary misconduct," and made no bones about where it stood on Judge Shabaz' ruling: "The district court thus erred in holding that ERISA section 404(c) immunizes fiduciaries from liability for any resulting losses as the basis for dismissing plaintiffs' claim for excessive fees."

Misleading Participants

However, the DoL also noted that fiduciaries are forbidden from "misleading plan participants about their plan"—and said that that duty, "in certain circumstances, require[s] fiduciaries to disclose information that participants need to know to exercise rights under the plan or protect their interests in the plan."

And while the DoL did note that there might be an obligation to disclose information to participants beyond that outlined in the so-called "black letter of the law," that did not equate to an absolute obligation to disclose everything, much less the particulars of revenue-sharing relationships.   The DoL noted, "This is not to say, however, that the Secretary agrees with plaintiffs' more sweeping suggestions that the fiduciaries of participant-directed plans must always, or even usually, disclose revenue sharing arrangements as a matter of general fiduciary principles. Indeed, we are skeptical that, absent any misrepresentations, ERISA's duties of prudence and loyalty would have required disclosure to plan participants of revenue sharing among Fidelity affiliates."

At this juncture, we still don't know if the fees charged in this case (or the dozen or so that alleged similar transgressions against a variety of employers by the Schlichter, Bogard & Denton law firm) were unreasonable or not, or if the alleged breaches of fiduciary duty are founded on anything of substance.  

What we do have, thanks at least in part to the DoL's brief, is a clear restatement of what the law actually requires.   And that's a step toward better law, as well as a better decision.

The DoL brief is here . The original Shabaz ruling is here .

The case is Hecker v. Deere & Co., 7th Cir., No. 07-3605.

Nevin E. Adams