          United States Court of Appeals
                     For the First Circuit


No. 17-1693

                  JAMES ELLIS; WILLIAM PERRY,

                    Plaintiffs, Appellants,

                               v.

               FIDELITY MANAGEMENT TRUST COMPANY,

                      Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. William G. Young, U.S. District Judge]


                             Before

                    Kayatta, Circuit Judge,
                  Souter, Associate Justice,*
                   and Selya, Circuit Judge.


     Garrett W. Wotkyns, with whom Schneider Wallace Cottrell
Konecky Wotkyns LLP was on brief, for appellants.
     Jonathan D. Hacker, with whom Brian D. Boyle, Gregory F.
Jacob, Meaghan VerGow, Bradley N. Garcia, O'Melveny & Myers LLP,
John J. Falvey, Jr., Alison V. Douglass, and Goodwin Procter LLP
were on brief, for appellee.




     * Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
February 21, 2018
             KAYATTA, Circuit Judge.          Plaintiffs James Ellis and

William    Perry   brought   this    certified    class      action   under   the

Employee     Retirement    Income    Security     Act   of    1974    ("ERISA"),

alleging that Fidelity Management Trust Company, the fiduciary for

a fund in which plaintiffs had invested, breached its duties of

loyalty and prudence in managing the fund.              Fidelity won summary

judgment and plaintiffs appealed.             Because the district court

correctly concluded that plaintiffs failed to adduce evidence

necessary to proceed to trial, we affirm.

                                       I.

             "On review of an order granting summary judgment, we

recite the facts in the light most favorable to the nonmoving

party" to the extent that they are supported by competent evidence.

Walsh v. TelTech Sys., Inc., 821 F.3d 155, 157–58 (1st Cir. 2016)

(quoting Commodity Futures Trading Comm'n v. JBW Capital, 812 F.3d

98, 101 (1st Cir. 2016)); see Burns v. State Police Ass'n of Mass.,

230 F.3d 8, 9 (1st Cir. 2000) (noting that competent evidence is

necessary to defeat summary judgment).            We take these facts from

the parties' summary judgment filings in the district court and

from   the   record   at   large    where    appropriate.       See     Evergreen

Partnering Grp. v. Pactiv Corp., 832 F.3d 1, 4 n.2 (1st Cir. 2016).

                                       A.

             Plaintiffs    were    participants    in   the    Barnes    &   Noble

401(k) plan, which allowed participants to allocate their savings


                                     - 3 -
among an array of investment alternatives depending on their

objectives.     Department of Labor regulations encourage employers

who create plans of this type to offer at least one relatively

safe investment vehicle, described as an "income producing, low

risk,       liquid"       investment.             29   C.F.R.      § 2550.404c-

1(b)(2)(ii)(C)(2)(ii).         A stable value fund is an example of such

an investment vehicle.         In this instance, Barnes & Noble chose to

offer its employees a stable value fund run by Fidelity and known

as the Managed Income Portfolio ("MIP").

             Three typical features of stable value funds are salient

here.       First,    a   stable   value   fund    generally    consists   of   an

underlying portfolio of high-quality, diversified, fixed-income

securities.      Second, a stable value fund generally utilizes a

"crediting rate" that takes into account gains and losses over

time and determines what amount of interest will be credited to

investors, and at what intervals this will occur.               Third, a stable

value fund often utilizes "wrap insurance," a form of insurance

providing that, subject to exclusions, when a stable value fund is

depleted such that investors cannot all recover book value,1 the

insurance provider will cover the difference.              Because the entity

providing the wrap insurance hopes it will not have to make good



        1
       "Book value" is the value of principal invested by each
participant, plus the interest credited to the participant as
determined by the crediting rate.


                                      - 4 -
on its promise, wrap contracts will often contain investment

guidelines imposing limitations on the composition of a stable

value fund's portfolio.     For example, a wrap provider might demand

that a certain portion of a portfolio's underlying securities be

treasury   bonds   or   similar     investments   that    sacrifice     higher

returns in favor of increased safety in preserving capital.

           Fidelity     described    to   putative    investors   the    MIP's

investment   objective     as   follows:       "The    primary    investment

objective of the Portfolio is to seek the preservation of capital

as well as to provide a competitive level of income over time

consistent with the preservation of capital."            As a benchmark, the

MIP used the Barclay's Government/Credit 1-5 A- or better index

("1-5 G/C index") throughout the relevant time period.2                  On a

quarterly basis, Fidelity made available to all plans that offered

the MIP fact sheets disclosing investment allocations, current

crediting rate, investment durations, and the MIP's returns.             More

than 2,500 employers, including several sophisticated Wall Street

employers, made the MIP available to their employees throughout

the class period.

           In the wake of the 2007–2008 financial crisis and the

ensuing economic decline, Fidelity fund managers expressed concern



     2 According to plaintiffs' expert, this index consists of
public government and corporate securities, rated A or better,
with maturities between one and five years.


                                    - 5 -
about the availability of wrap insurance for Fidelity's various

funds, including the MIP, going forward.                        For example, a 2009

PowerPoint noted a "[d]earth of new wrap capacity."                     During this

time period, several major wrap providers for the MIP, including

AIG, Rabobank, and at a later point, JP Morgan, forecasted an

intention      to   leave    the     wrap    market.        Further    illustrating

Fidelity's concern is a 2011 e-mail from an attorney for Fidelity,

noting that JP Morgan had been "shed[ding]" wrap capacity, that

there were a "dwindl[ing]" number of new entrants into the wrap

market, and that Fidelity ran the risk of being "left out in the

cold" if the number of insurers of stable value funds was limited,

as he expected it to be.            Ultimately, Fidelity secured sufficient

wrap coverage; certain providers either remained in the market or

transferred their wrap business to other entities and Fidelity

also obtained wrap coverage from a new source.

                                            B.

            During the years covered by this lawsuit, the MIP fully

achieved its objective of preserving the investors' capital.                    The

rate of return earned by investors, however, lagged behind that of

many   other    stable      value    funds       offered   by    competitors.   The

immediate cause of these lower returns is undisputed:                      Fidelity

allocated MIP investments away from higher-return, but higher-risk

sectors (e.g., corporate bonds, mortgage pass-throughs, and asset-

backed securities) and toward treasuries and other cash-like or


                                        - 6 -
shorter duration instruments.                While these allocations made the

MIP a safer bet and thus more attractive to wrap providers, they

also positioned the MIP less favorably in the event that markets

improved.    Markets did improve, the added safety turned out not to

be    required,    and      competitors        whose      investments      were    more

aggressive achieved both asset protection and higher returns.                       As

a result, Fidelity saw its assets under management and its market

share fall until 2014. It was not until 2015 that Fidelity managed

to    achieve     the      approximate        average      returns    realized      by

competitors' stable value funds.

            Of course, such is what occurs in most markets, and

certainly most investment markets.                 Fund managers make different

predictions about future market performance, and the differences

ultimately generate a distribution curve of returns as some funds

do better than others.           Every year, by definition, one quarter of

funds fall into the bottom quartile and one quarter fall in the

top   quartile,    even     if    all   fund      managers   are   loyal    to    their

investors and prudent in their decisions.

            Plaintiffs, though, say that something else was at work

here.    They say that the MIP's relatively low returns as compared

to those of many other stable value funds were the result of

disloyalty and imprudence in violation of section 404(c)(1) of

ERISA.      29    U.S.C.    § 1104(a)(1).            While   plaintiffs'      precise

explanations      for   how      this   is   so    have    moved   throughout     this


                                        - 7 -
litigation like a toy mole in an arcade game, the constant and

essential fact to which they point is Fidelity's conduct in

procuring wrap coverage for the MIP.                Specifically, plaintiffs

claim    that   Fidelity   agreed    to   overly    conservative       investment

guidelines in a failed effort to lock up all wrap coverage so that

its competitors would not be able to obtain such coverage, allowing

Fidelity to corner the stable value market and generate business

for its many other stable value funds even if the MIP suffered.

            Additionally,     plaintiffs       argue    that        Fidelity    was

imprudent in structuring and operating the MIP by being overly and

unnecessarily conservative.           Specifically, a prudent Fidelity

would    have   (say   plaintiffs)   negotiated      less     restrictive      wrap

guidelines, picked a more aggressive benchmark, and invested in

higher-risk, higher-return instruments.

            The   district   court    denied    a    motion    to    dismiss    and

certified a class.      After the parties completed an ample amount of

discovery, the district court found plaintiffs' arguments to lack

the evidentiary support needed to survive summary judgment.                    See

Ellis v. Fidelity Mgmt. Tr. Co., 257 F. Supp. 3d 117, 119 (D. Mass.

2017).    This appeal followed.

                                      II.

            On appeal, plaintiffs claim two distinct errors.               First,

they contend that in evaluating their loyalty claim, the district

court applied the wrong standard, thus committing an error of law.


                                     - 8 -
Second, they submit that the district court impermissibly weighed

evidence at the summary judgment stage, where such weighing is

inappropriate.     Had it credited their version of events, they say,

it would have found triable issues and denied summary judgment.

We consider each argument in turn.

                                        A.

             The choice of the standard by which to evaluate a claim

is a question of law, which we review de novo.                   United States v.

Maldonado-Rivera, 489 F.3d 60, 65 (1st Cir. 2007).                     Here, the

district court stated that "ERISA . . . requires an ERISA fiduciary

to honor the duty of loyalty by 'discharging his duties with

respect to a plan solely in the interest of the participants.'"

Ellis, 257 F. Supp. 3d at 126 (quoting 29 U.S.C. § 1104(a)(1)

(brackets omitted)).         The district court went on to cite our

decision in Vander Luitgaren v. Sun Life Assurance Co. of Canada,

765   F.3d   59   (1st    Cir.   2014),      for   the   proposition    that   "an

accompanying benefit to the fiduciary is not impermissible -- it

more simply 'require[s] . . . that the fiduciary not place its own

interests ahead of those of the Plan beneficiary.'"                 Ellis, 257 F.

Supp. 3d at 126 (alteration in original) (quoting Vander Luitgaren,

765 F.3d at 65).

             Plaintiffs    do    not   dispute     that    the    district   court

accurately quoted the statutory language.                 Nor do they expressly

contend that Vander Luitgaren does not set forth the controlling


                                       - 9 -
law.     Instead, in their opening brief, plaintiffs devote much

attention   to   an   opinion   of   the   Second   Circuit,   Donovan   v.

Bierwirth, 680 F.2d 263 (2d Cir. 1982).       That opinion says that an

ERISA fiduciary's decisions "must be made with an eye single to

the interests of the participants and beneficiaries."          Id. at 271.

Plaintiffs seem to read this phrase as meaning that a fiduciary

can only be motivated by a beneficiary's interests, even if that

interest aligns with the fiduciary's own interests.            Plaintiffs

submit that the district court should have applied that reading of

Donovan and denied summary judgment because record evidence could

have supported the conclusion that Fidelity's operative motive was

to further its own interests.

            This is all a bit of a puzzler because plaintiffs never

mentioned Donovan or the "eye single" language to the district

court.    Moreover, in their reply brief, plaintiffs concede that

Donovan and Vander Luitgaren do not conflict.            This of course

raises the question:     How did the district court apply the wrong

standard by expressly relying on a recent opinion of this court

that does not conflict with plaintiffs' preferred earlier decision

of another court?

            We agree with plaintiffs' reply brief that there is

actually no material difference relevant to this case between our

standard as articulated in Vander Luitgaren and the "eye single"

standard as actually applied in Donovan.        This is not to say that


                                 - 10 -
either case (and certainly not Vander Luitgaren) would deem a

fiduciary liable for disloyalty merely because it took action aimed

at furthering an objective it shared with the beneficiaries.

Donovan involved plan trustees who committed themselves to use

plan assets to buy company stock without carefully considering

whether it was in the interest of plan participants to do so.

Indeed, the Second Circuit found it foreseeable that the purchase

would       harm   plan   participants.   The   court   found   it   "almost

impossible to believe that the trustees['] . . . motive . . . was

for any purpose other than blocking [a hostile tender offer]."

Donovan, 680 F.2d at 275.        In other words, the trustees in Donovan

did precisely what Vander Luitgaren prohibits -- they placed

"[their] own interests ahead of those of the Plan beneficiary."

Vander Luitgaren, 765 F.3d at 65.3

               In any event, for present purposes the question is

whether the district court employed the correct legal test in its

evaluation of the evidence.          The foregoing should make it clear

that by quoting the statute and relying on the language and holding

of Vander Luitgaren, the district court did so.         In so concluding,

we acknowledge a theoretical question posed in plaintiffs' brief

on appeal:         What if a fiduciary whose interests are aligned with


        3
       For this reason, plaintiffs' claim that the Supreme Court's
unelaborated reference to Donovan in Pegram v. Herdrich, 530 U.S.
211, 235 (2000), provides no benediction for the interpretation
plaintiffs would have us glean from the case.


                                    - 11 -
the   beneficiaries'   interest    takes   action    that    a   loyal   but

indifferent fiduciary might well take, but does so only "with an

eye" toward the benefits that it will sustain?              As a practical

matter, in most such circumstances it would be difficult to divine

such a parsing of motives given the aligned interests of the

fiduciary and beneficiaries.        One might also posit that most

beneficiaries would prefer a trustee whose self-interests align

with their own, rather than one who is personally indifferent to

the beneficiaries' success.       In any event, we need not venture

further into this abstract discussion because plaintiffs never

argued such a theory of loyalty below, contending only that

Fidelity was motivated by conflicting interests (which is indeed

the redoubt to which plaintiffs retreat in their reply brief).            So

we turn now to whether the evidence justified a trial based on

that contention.

                                    B.

           "We   review   the   district   court's    grant      of   summary

judgment de novo."     Cherkaoui v. City of Quincy, 877 F.3d 14, 23

(1st Cir. 2017).   A grant of summary judgment is proper only where

"there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law."            Fed. R. Civ. P.

56(a).   "A dispute is 'genuine' if the evidence about [the issues

in dispute] is such that a reasonable jury could resolve the point

in the favor of the non-moving party."      Cherkaoui, 877 F.3d at 23–


                                  - 12 -
24 (quoting Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)

(internal quotation marks omitted)).         While this is not a high bar

to clear, we have also held that "[t]he test for summary judgment

is steeped in reality. . . .       We have interpreted Rule 56 to mean

that the evidence illustrating the factual controversy cannot be

conjectural or problematic . . . .            [S]ummary judgment may be

appropriate if the nonmoving party rests merely upon conclusory

allegations, improbable inferences, and unsupported speculation."

Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.

1990) (internal quotation marks, citations, and brackets omitted).

                                     1.

           We begin with the theory underlying plaintiffs' loyalty

claim.    As best we can tell, it goes something like this:             After

the financial crisis of 2007–2008 and during the market decline

thereafter, there was limited wrap capacity available on the

market.   Fidelity, which stood to earn more money the greater the

total amount of its assets under management, swooped in to scoop

up as much wrap capacity as possible, agreeing to excessively

conservative    guidelines    in   the    process,   in   order   to   prevent

competitors from obtaining wrap insurance and thereby preventing

them from entering the stable value fund market.                  With fewer

competitors    in   the   stable   value    fund   market,   Fidelity   would

increase its assets under management and in turn increase the fees

it collected.       Central to plaintiffs' theory is the allegation


                                   - 13 -
that Fidelity's "primary goal here was to prevent competitor access

to wrap capacity to enable Fidelity to grow, for example, its

separate account business [assets under management] at the expense

of competitors, not to secure wrap capacity for the MIP."

             The most obvious problem for plaintiffs' argument is

that   we,   like   the   district    court,   have   examined   plaintiffs'

Statement of Disputed Facts and find no evidence that the MIP

itself did not face a threat of insufficient wrap coverage between

2009 and 2012. After a full round of discovery, plaintiffs adduced

no evidence to this effect, nor did their expert so conclude.

Plaintiffs point only to the fact that the MIP was "open to new

funds" during the period.      Plaintiffs see this fact as leading to

the inference that Fidelity knew that the MIP was not going to

lose its existing wrap coverage, on the assumption that if it

risked the loss of such coverage, it would not leave the fund open

to new investors until that risk was eliminated.           This is quite a

reach.   A fund manager might easily perceive a need to find new

wrap coverage yet leave the fund open to new investors based on an

expectation that the manager will one way or another find new

coverage. Even if plaintiffs' touted inference might be reasonable

at the pleading stage and allow a case to survive a Rule 12(b)(6)

motion to dismiss, it becomes unreasonable when confronted with a

summary judgment motion after a full round of discovery producing




                                     - 14 -
undisputed proof that existing wrap providers were threatening to

exit the market in the wake of AIG's dance with failure.

           Plaintiffs' theory of how Fidelity behaved disloyally

suffers from the added disability of making little sense.                 To

believe that Fidelity's competitors could be driven out of the

market due to Fidelity's capture of available wrap insurance, one

must also believe that wrap insurance at the relevant times was a

scarce and limited resource.     Were that the case, though, it would

make no sense to posit that Fidelity had no reason to try hard to

secure new wrap coverage for the MIP if its existing suppliers

hinted at possible exit announcements.          Conversely, if Fidelity

knew that the supply of wrap insurance was not finite, attempts to

purchase excessive quantities of it so as to deny competitors

access would be equally illogical; one cannot consume all of a

good where its quantity is effectively unlimited.           Viewed thusly,

plaintiffs' theory of a loyalty breach based on aggressive pursuit

of wrap coverage requires that we infer that Fidelity embarked on

a course that was not only against both its interests and the

interests of its investors, but was also plainly illogical.           Such

an inference, without more to support it, is too speculative to

carry a claim forward.

           At oral argument, plaintiffs contended that there was a

third state of the world; namely, that wrap coverage was indeed a

finite   good,   but   that   Fidelity   did   not   need   to   pursue   it


                                 - 15 -
aggressively because other insurance products, suitable for the

MIP but not suitable for Fidelity's competitors, were available.

Plaintiffs pointed to guaranteed investment contracts, or GICs, as

an example.           Thus, in plaintiffs' view, Fidelity's aggressive

pursuit of wrap coverage was both unnecessary to protect MIP

investors and consistent with attempts to freeze out Fidelity's

competitors.          There are multiple problems with this argument, the

first being that plaintiffs did not raise it in their briefing

before the district court.            See McCoy v. Mass. Inst. of Tech., 950

F.2d 13, 22 (1st Cir. 1991) ("It is hornbook law that theories not

raised squarely in the district court cannot be surfaced for the

first time on appeal.").4 Even if we were to consider the argument,

however, it would not persuade us.               To succeed with this argument,

plaintiffs would need to convince a reasonable factfinder that

(a) GICs         or   other    insurance    products    were   an   available    and

appropriate option for the MIP and (b) the same insurance products

were       not   equally      available    to   or   appropriate    for   Fidelity's


       4
       In a letter filed with the court pursuant to Federal Rule
of Appellate Procedure 28(j), plaintiffs insist that they did, in
fact, raise this theory before the district court. In support of
their claim, however, plaintiffs point only to three separate
paragraphs from their Local Rule 56.1 statement, not to any portion
of their brief opposing summary judgment.     It is not enough to
have offered some facts which could support a particular theory of
a case; a party must actually make an argument based on the facts.
Actual mention of GICs and other insurance products in their brief
or at oral argument before the district court was sparse to non-
existent. Thus, we cannot say that this argument was raised in
the district court, let alone "squarely."


                                          - 16 -
competitors.         The only portion of the record that plaintiffs'

counsel cited at oral argument in support of this new theory was

an   e-mail    from     a    Fidelity   lawyer,      which   discusses    a    single

competitor, Galliard, and notes that Galliard is more willing to

use alternative insurance products than Fidelity is.                   But this e-

mail says nothing about whether GICs or other insurance products

would have been an appropriate substitute for wrap coverage for

the MIP.       It also undermines the second premise necessary for

plaintiffs' theory to succeed -- that competitors would be unable

to replace wrap coverage with GICs or other insurance products --

because the e-mail specifically states that the one competitor it

mentions does employ those products.                   Thus, even if we were

inclined to consider plaintiffs' new theory on appeal, it would

fail due to the lack of any competent evidence supporting it.

              Perhaps       recognizing   the     logical    weakness     of    their

position,     plaintiffs       posit    that   the    district   court    erred    in

determining that though there was an "accompanying benefit" to

Fidelity,     this    benefit     was   not    the   motivator   for     Fidelity's

decision making.        In plaintiffs' view, once the district court had

found evidence of an accompanying benefit, it was required to leave

to the trier of fact the decision as to whether this benefit was

incidental to Fidelity or in fact motivated Fidelity's decisions.

While we question the accuracy of plaintiffs' reading of the

district court decision, the simple point is that this argument


                                        - 17 -
merely    repackages    plaintiffs'    position   that    their    belatedly

proffered reading of Donovan as applied to aligned interests of

the fiduciary and beneficiaries should control.               Having already

found that theory unpreserved, we leave it at that.

            Plaintiffs offer one other claim that plausibly sounds

in the duty of loyalty:       that because the MIP's portfolio managers

were compensated based on the degree to which performance exceeded

the benchmark, they had an incentive to keep the benchmark unduly

low.     We can assume, for the sake of argument, that the bonus

structure was in fact based on the amount by which the fund's

returns exceeded the benchmark and that the benchmark was quite

conservative.

            We nevertheless balk at the notion that a fiduciary

violates    ERISA's    duty    of   loyalty   simply     by   picking   "too

conservative" a benchmark for a stable value fund.            Such funds are

generally presented as one of the more conservative options for

investors who prefer asset preservation to the risk of pursuing

greater returns.      A conservative benchmark for a fund that places

principal preservation as its primary goal warns the investor not

to expect robust returns, and aligns expectations and results in

a manner that is unlikely to harm or disappoint any investor who

selects the fund.

            Plaintiffs' theory also ignores basic and obvious market

incentives.     If Fidelity publishes a benchmark that implies no


                                    - 18 -
greater    safety    but     lower    returns     than    those    implied   by   the

benchmarks published by competing funds, it risks losing out as

plan sponsors choose what options to offer plan participants.                     And

if Fidelity wants to increase compensation for its fund managers,

there are presumably many ways to do so without setting a lower

benchmark, a tactic that risks making a fund uncompetitive with

those offered by other companies.

             The    bottom    line    here   is    that    Fidelity    offered      an

investment vehicle for conservative investors in the wake of the

2007-2008 market collapse, it published for its putative investors

a cautious and unambitious benchmark, and then it consistently

exceeded that benchmark.             Unless we are to say that ERISA plans

may not offer very conservative investment options (such as money

market funds or treasury bond funds), then we cannot say that plans

may not offer different types of stable value funds, including

those     that     are   intentionally       and    openly        designed   to     be

conservative.       If informed plans or their participants do not want

such funds, they will not select them over the innumerable options

available.

             In the end, far from inappropriately weighing evidence

against    plaintiffs,       the     district     court    correctly    held      that

plaintiffs had presented no competent evidence at all to support

critical elements of their theory of the breach of the duty of

loyalty.    Instead, plaintiffs relied on repeated speculation that


                                       - 19 -
sophisticated investment professionals behaved in a manner that

makes no sense.     As a result, summary judgment was appropriately

granted on plaintiffs' loyalty claims.

                                      2.

            In addition to their loyalty claims, plaintiffs also

pressed prudence claims in the district court.             In large part,

these prudence claims are the loyalty claims dressed in prudence's

clothing,     and   thus   suffer    from    the   same   overreliance     on

unreasonable and unsupported speculation.          Nonetheless, because it

is certainly possible for conduct to be loyal but imprudent, we

address each of these claims in their own guise.

            ERISA requires a fiduciary to act "with the care, skill,

prudence, and diligence under the circumstances . . . 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."         29 U.S.C. § 1104(a)(1)(B).        "The

test of prudence -- the Prudent [Person] Rule -- is one of conduct,

and not a test of the result of performance of the investment.

Whether a fiduciary's actions are prudent cannot be measured in

hindsight."     Bunch v. W.R. Grace & Co., 555 F.3d 1, 7 (1st Cir.

2009) (brackets, internal quotation marks, and citations omitted).

Plaintiffs advance three theories of a violation of the duty of

prudence:     (a) that it was imprudent to pursue wrap capacity as

aggressively as Fidelity did and agree to the terms Fidelity agreed


                                    - 20 -
to, (b) that Fidelity's use of the Barclays 1-5 G/C index as a

benchmark was imprudent, and (c) that it was imprudent not to take

corrective action in the face of returns that were lower than those

of competitor funds.

             The first contention is easily dispensed with, largely

for the same reasons that the loyalty claim failed.               Simply put,

there is no evidence: (a) that the array of prudent options

available in the relevant time period did not include aggressively

pursuing wrap insurance in the context of a potential decrease in

wrap   providers,    (b) that    Fidelity      took   on    any   excess     wrap

insurance,    and   (c) that    Fidelity     unreasonably    passed    over   an

available better deal for its supply of wrap insurance.                    Absent

such evidence, plaintiffs' prudence claim fails to get out of the

starting blocks.     See Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986) (holding that "there can be no genuine issue as to any

material   fact"    where   there   is   "a   complete     failure    of   proof

concerning an essential element of the nonmoving party's case"

(internal quotation marks omitted)).           While plaintiffs make much

of internal Fidelity communications describing the terms it agreed

to with JP Morgan as "overly stringent," this description cannot

carry the weight plaintiffs assign to it.             That one party to a

transaction believes the terms to be "overly stringent" proves too

little unless there exists an alternative, more favorable option.




                                    - 21 -
          Plaintiffs' second theory fares no better.    They offer

no authority, and we are aware of none, holding that a plan

fiduciary's choice of benchmark, where such a benchmark is fully

disclosed to participants, can be imprudent by virtue of being too

conservative.   It is undisputed that the MIP's returns exceeded

those of money market funds throughout the class period.      Were

this case to proceed to trial, it is completely unclear by what

standard a jury could find a disclosed choice of benchmark to be

imprudent as "too conservative," particularly where plaintiffs

make no argument that offering more conservative investments (such

as money market funds) would constitute an ERISA violation.    The

fact that plaintiffs on appeal criticize Fidelity for shying away

from asset-backed securities in the wake of the 2007–2008 market

collapse well demonstrates that plaintiffs' standard of prudence

relies on hindsight.

          Plaintiffs' third and final theory -- that Fidelity

breached the duty of prudence by failing to take corrective action

to improve the MIP's returns -- fails as well, most fundamentally

for the second reason elucidated by the district court:       that

plaintiffs have not identified any particular act or omission in

this regard that was imprudent.   See Ellis, 257 F. Supp. 3d at 131

("Further, as Fidelity notes, the Plaintiffs do not point to any

specific decision violating the duty of prudence.").   This failure

is particularly important given that, as plaintiffs' own expert


                             - 22 -
admitted, the MIP's managers did consider and increase its risk

allocation throughout the class period. Plaintiffs did not specify

in the district court, and do not specify now, a minimum risk level

below   which       stable    value    funds    for   some    reason   cannot     go.

Furthermore,        as   we   have    already    noted,   a   prudence    claim    is

evaluated from the perspective of what a fiduciary reasonably knows

ex ante.   See Bunch, 555 F.3d at 7.             The district court was correct

in finding that, at bottom, plaintiffs lacked any evidence that

any of the decisions made by the MIP's managers were unreasonable

under the circumstances, particularly given that Fidelity had

introduced      a    wealth     of    undisputed      evidence   supporting       the

conclusion that it engaged in an evaluative process prior to making

investment decisions.

           We pause, finally, to address plaintiffs' repeatedly

played trump card: the e-mail, discussed supra, from one of

Fidelity's in-house attorneys, written in March 2010.                    The e-mail

states, in relevant part, as follows:

           It's not one thing with Galliard, it's
           several. They probably are more diversified
           than us. They're more willing to use every
           tool available to them -- traditional GICs,
           separate account GICs, Mutual of Omaha.
           They're certainly more flexible than we are.
           You'd think given our size and our resources
           that we could do anything, but with us
           everything has to be done our way. Galliard
           can also afford to put deposits into cash
           because their crediting rates don't suck. The
           biggest difference between us and Galliard
           though is that they care about this business


                                        - 23 -
            in a way that we don't. Stable value matters
            to them. We can talk all we want about how
            we're the best (and in some ways we are), but
            the fact is that while we were selling
            everything in the meltdown our competitors
            stuck to their guns.    As a result, in many
            cases they are better off than we are. When
            capacity opens up (assuming it does), we might
            get the first call, but Galliard won't be far
            behind.

This   e-mail   has,   in   one   way    or   another,    anchored   most   of

plaintiffs' arguments throughout this case.              Admittedly, it uses

colorful language, and surely -- as plaintiffs argue -- most

investors would not want to invest in a fund whose crediting rates

"suck."    But this e-mail tells us much too little about whether

Fidelity breached its duties under ERISA.                Rather, it shows a

Fidelity   employee    looking    back   in   hindsight    and   noting   that

Fidelity underperformed many competitors based on choices made in

response to the financial crisis. One can only imagine the mirror-

image e-mails of regret Fidelity's competitors would have written

had the markets collapsed instead of rebounding.             And as we have

made clear, hindsight regret cannot be the basis for an ERISA

claim.    See id.

            Because plaintiffs failed to adduce evidence sufficient

to proceed to trial on any of their theories of prudence, the

district court was correct to reject plaintiffs' prudence claims.




                                   - 24 -
                                  III.

            Though the record in this matter is voluminous, the

essential   issues   are   relatively    straightforward.   Plaintiffs

failed to adduce evidence after ample discovery that would have

provided reasonable, non-speculative support for their claims of

disloyalty or imprudence.     The record shows, instead, an alignment

between the interests of Fidelity and the MIP participants, and an

investment strategy that lacked not prudence, but rather, a crystal

ball.   The district court's grant of summary judgment is affirmed.




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