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Breach of Duty.

Byline: Rebecca Moore

Summary paragraph: Employer to pay for failing to monitor RK costs

A court found ABB Inc. and Fidelity Management Trust Company breached some fiduciary duties owed to participants in ABB's retirement plans.

U.S. District Judge Nanette K. Laughrey of the U.S. District Court for the Western District of Missouri found the ABB defendants violated their fiduciary duties to the plans when they failed to monitor recordkeeping (RK) costs; failed to negotiate rebates for the plan from either Fidelity or other investment companies chosen to be on the plans' platform; selected more expensive share classes for the investment platform when less costly ones were available; and removed the Vanguard Wellington Fund from the investment menu and replaced it with Fidelity's Freedom Funds.

Laughrey ruled that ABB breached its fiduciary duty to the plans because it failed to comply with their investment policy statement asserting that, "at all times, [Alliance] rebates will be used to offset or reduce the cost of providing administrative services to plan participants."

Laughrey said she was unconvinced that ABB monitored the reasonableness of Fidelity Trust recordkeeping fees by monitoring the reasonableness of the expense ratio of the retail investments chosen for the plans' platform.

The court also found ABB Inc. and its employee benefits committee violated their fiduciary duties to the plans by agreeing to pay Fidelity an amount that exceeded market costs for plan services; they did this in order to subsidize the corporate services provided to ABB by Fidelity, such as ABB's payroll and recordkeeping for ABB's health and welfare plan and its defined benefit (DB) plan.

According to Laughrey's ruling, Fidelity Trust breached its fiduciary duties to the plans when it failed to distribute float income -- interest earned on assets -- solely for the interest of the plan; Fidelity Research violated its fiduciary duties when it transferred float income to the plans' investment options instead of to the plans.

The court found ABB defendants jointly and severally liable for $13.4 million, lost by the plans because of the failure to monitor recordkeeping fees and negotiate for rebates, and $21.8 million, lost by the plans due to the mapping of the Vanguard Wellington Fund to the Fidelity Freedom Funds. Fidelity defendants are jointly and severally liable for compensating the plans $1.7 million for lost float income.

Laughrey rejected the plaintiffs' global damages theory, which is based on the assumption that ABB's breaches infected all of its investment decisions for the plans and that damages should thus be measured by the entire performance of ABB's DB plans. "While the court is suspicious that the relationship between ABB and Fidelity Trust infected more than the specific instances identified in this order, the court cannot rely on suspicion," Laughrey wrote.

Participant Ronald C. Tussey filed the suit in 2006 against ABB, alleging it breached its Employee Retirement Income Security Act (ERISA) fiduciary duties by paying excessive fees to Fidelity Trust and by failing to disclose to plan participants the revenue-sharing arrangement.

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Date:May 1, 2012
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