Judge Denies Venue Change for International Paper Fee Suit

August 29, 2007 (PLANSPONSOR.com) - A judge in the U.S. District Court for the Southern District of Illinois has denied a request by International Paper Company to have an excessive 401(k) fee suit brought against it moved to a Tennessee federal court.

U.S. District Judge David R. Herndon pointed out in his opinion that International Paper argued for moving¬†the case from the Southern District of Illinois to the Western District of Tennessee because the company is headquartered in Memphis and records relevant to the case are there. Herndon said the fact that documents relevant to this case are outside the district is not a factor weighing heavily in favor of transfer and cited another case which said, “Documents and records are usually not a very persuasive reason to transfer a case . . . . They are easily transportable.”

International Paper also argued for the venue change because the defendants live in the Western District of Tennessee. The court said the purpose of a change of venue is not to shift inconvenience and expense from the moving party to the non-moving party. Herndon again cited another case which concluded, “[W]hen the inconvenience of the alternative venues is comparable there is no basis for a change of venue; the tie is awarded to the plaintiff.”

A motion for class certification was also presented to the court by the plaintiffs. Herndon delayed ruling on the request pending the outcome of an appeal before the 7 th U.S. Circuit Court of Appeals which argues that Section 404(c) of the Employee Retirement Income Security Act (ERISA) does not defeat the commonality and typicality requirements for class certification. International Paper argued that because its plan is a Section 404(c) plan allowing participants to choose their individual account investments, it is not liable as a fiduciary for those individual participant decisions.

According to the opinion, “[T]he Court believes that it would be imprudent to proceed further on the matter of class certification until the appeal is resolved.”

International Paper was one target of a number of lawsuits filed last year alleging plan fiduciaries breached their duties under ERISA by failing to contain plan costs and paying unreasonable fees to plan service providers. In addition, International Paper is charged with failing to minimize costs associated with investment in employer securities under its plans and holding a portion of plan assets in cash. Lawyers for International Paper Company filed documents with the court in May claiming the company did nothing wrong (See IPC: 401(k) Fees ‘Not Excessive or Unreasonable’ ).

The opinion is here .

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