Judge Tosses Fifth Third Stock-Drop Suit

November 30, 2010 (PLANSPONSOR.com) – A federal judge in Ohio has turned aside arguments in a stock-drop suit that Fifth Third Bancorp committed a fiduciary breach when it included company stock in its profit-sharing plan .

Senior U.S. District Judge Sandra S. Beckwith of the U.S. District Court for the Southern District of Ohio said the defendants were entitled to a presumption of prudence typically applied in stock-drop cases.

Beckwith asserted that despite the bank stock’s nearly 75% drop because of the company’s involvement in subprime mortgage lending, it remained a going financial concern, which meant the bank was entitled to the prudence presumption. The employee plaintiffs had argued in filing the 2008 suit that the bank had violated the Employee Retirement Income Security Act (ERISA) by keeping the company stock in the plan after it was no longer prudent to do so.

In arguing the company remained a viable enterprise despite being hurt by the subprime mortgage meltdown, Beckwith pointed out that Fifth Third’s participation in the federal Capital Purchase Program (CPP) helped demonstrate that the company was a viable financial institution.

The Treasury Department only allowed financial institutions to participate in the CPP if they were healthy, viable financial institutions, the court noted.

The case is Dudenhoeffer v. Fifth Third Bancorp, S.D. Ohio, No. 1:08-cv-538.