     12-1662-cv
     Taveras v. UBS AG et al.
 1
 2                              UNITED STATES COURT OF APPEALS
 3                                    FOR THE SECOND CIRCUIT
 4                                       _______________

 5                                          August Term, 2012

 6             (Argued: November 15, 2012                        Decided: February 27, 2013)

 7                                          Docket No. 12-1662

 8                                          _______________

 9        DEBRA TAVERAS, on behalf of herself and all others similarly situated, MARY MCKEVITT,
10
11                                                                              Plaintiffs-Appellants,
12
13                                 BRIAN LUDLUM, BRIAN STANISLAUS,
14
15                                                                 Consolidated Plaintiffs-Appellants,
16
17                                                – v. –
18
19    UBS AG, PETER KURER, STEPHAN HAERINGER, SERGIO MARCHIONNE, ERNESTO BERTARELLI,
20     GABRIELLE KAUFMANN-KOHLER, ROLF A. MEYER, HELMUT PANKE, DAVID SIDWELL, PETER
21     SPUHLER, PETER VOSER, LAWRENCE A. WEINBACH, JOERG WOLLE, PETER A. WUFFI, CLIVE
22       STANDISH, DAVID S. MARTIN, EDWARD O’DOWD, BARBARA AMONE, PER DYRVIK, THE
23       RETIREMENT BOARD AND SAVINGS PLAN COMMITTEE, JOHN DOES 1-30, UBS BOARD OF
24    DIRECTORS, EXECUTIVE BOARD OF UBS AG, JOE SCOBY, ROBERT WOLF, MARTEN HOEKSTRA,
25    RAOUL WEIL, STEPHEN BAIRD, SIMON CANNING, MICHAEL DALY, RICHARD DURON, URSULA
26   MILLS, JAIME TAICHER, UBS AMERICAS, INC., UBS FINANCIAL SERVICES, INC., UBFS BOARD OF
27      DIRECTORS, DIANNE FRIMMEL, JOHN HANNASCH, ROBERT CHERSI, MICHAEL WEISBERG,
28     EXECUTIVE COMMITTEE OF UBS FINANCIAL SERVICES INC., UBS FINANCIAL SERVICES, INC.
29   INVESTMENT COMMITTEE, KEN CASTANELLA, EARLE DODD, MARILEE FERONE, WILLIAM FREY,
30              MATTHEW LEVITAN, ED O’CONNOR, KEVIN RUTH, RHONDA VIAPIANO,
31
32                                                                             Defendants-Appellees,
33
34      UBS AG, FINANCIAL SERVICES, INC., BENEFITS ADMINISTRATIVE COMMITTEE OF THE UBS
35    FINANCIAL SERVICES INC. 401 K PLUS PLAN, ROBERT MCCORMICK, JOHN AND JANE DOES 1-20,
36
37                                                               Consolidated Defendants-Appellees.
38                                          _______________

39
1                        Before:   KEARSE, STRAUB, and POOLER, Circuit Judges.
2                                          _______________

 3           An appeal from a final judgment and a postjudgment order of the United States District
 4   Court for the Southern District of New York (Richard J. Sullivan, Judge), granting defendants’
 5   motion to dismiss in full, and denying plaintiffs’ motion to alter or amend the judgment and for
 6   leave to file an amended complaint.
 7           After examining the terms in the documents pertaining to the two retirement savings
 8   plans at issue, we hold that the District Court erred in applying the presumption of prudence as to
 9   one of the two plans, the Savings and Investment Plan, as that plan did not require or strongly
10   encourage investment in UBS stock or the UBS Stock Fund. We hold that the District Court
11   did not err, however, in applying the presumption of prudence as to the other plan at issue, the
12   Plus Plan.
13           Accordingly, the dismissal order of the District Court is AFFIRMED in part,
14   VACATED in part, and the case is REMANDED for further proceedings consistent with this
15   opinion.
16                                            _______________

17                      MARK C. RIFKIN, (Michael Jaffe, Beth A. Landes, on the brief) Wolf
18                        Haldenstein Adler Freeman & Herz LLP, New York, NY, Thomas J.
19                        McKenna, Gregory M. Egleston, Gainley & McKenna, New York, NY,
20                        Todd S. Collins, Ellen T. Noteware, Berger & Montague, P.C.,
21                        Philadelphia, PA, Jeffrey A. Klafter, Klafter Olsen & Lesser LLP, White
22                        Plains, NY, for Plaintiffs-Appellants.
23
24                      ROBERT J. GIUFFRA, JR. (Suhana S. Han, Matthew A. Schwartz, Thomas C.
25                         White, on the brief) Sullivan & Cromwell LLP, New York, NY, for
26                         Defendants-Appellees.
27                                          _______________
28
29   STRAUB, Circuit Judge:

30             Plaintiffs-Appellants, four former employees of UBS AG and/or UBS Financial

31   Services, Inc., appeal from a final judgment and a postjudgment order of the District Court for

32   the Southern District of New York (Richard J. Sullivan, Judge), the first granting defendants’

33   motion to dismiss in its entirety, and the second denying plaintiffs’ motion to alter or amend the

34   judgment and for leave to file a Second Consolidated Amended Complaint (“SCAC”).



                                                      2
 1             On appeal, plaintiffs argue that the District Court erred in analyzing their claim for

 2   breach of the duty of prudence, as it applied a presumption of prudence to the fiduciaries of both

 3   investment plans.   Defendants, the alleged fiduciaries of these two plans, in which plaintiffs

 4   invested for retirement, offered the UBS Stock Fund as an investment option to plan participants

 5   and assert that they are entitled to the presumption of prudence, which the District Court applied.

 6   For the reasons that follow, we hold that the District Court wrongly applied the presumption as

 7   to one of the two plans, the Savings and Investment Plan (“SIP”), as the SIP Plan Document

 8   neither requires nor strongly encourages investment in UBS stock or the UBS Stock Fund.            We

 9   hold, however, that the District Court correctly applied the presumption of prudence as to the

10   second plan, the Plus Plan, which requires plan fiduciaries to invest in the UBS Stock Fund.

11   Accordingly, we AFFIRM the dismissal order of the District Court in part, VACATE in part,

12   and REMAND the case for further proceedings consistent with this opinion.        Plaintiffs’

13   remaining arguments on appeal are addressed in a companion Summary Order, filed today.

14                                           BACKGROUND

15   I. Parties and Investment Plans

16          Plaintiffs-Appellants Debra Taveras, Mary McKevitt, Brian Ludlum, and Brian

17   Stanislaus are four former employees of defendants UBS AG (“UBS”) and/or UBS Financial

18   Services (“UBSFS”).     They brought a putative class action on behalf of current and former

19   employees of UBS and UBSFS, alleging that Defendants-Appellees violated various fiduciary

20   duties imposed on them by the Employee Retirement Income Security Act of 1974 (“ERISA”),

21   29 U.S.C. § 1001, et seq.




                                                      3
 1              During the class period1 alleged, plaintiffs participated in either the SIP or the UBSFS

 2   401(k) Plus Plan (“Plus Plan”) in order to save for their retirement.                     Both the SIP and the Plus

 3   Plan are tax-qualified retirement savings plans under which participants hold individual accounts

4    that reflect both the amount contributed as well as the gains and losses on a participant’s account

5    investments. See 29 U.S.C. § 1002(2)(A), (3), (34).                     It is uncontested that both plans are

6    “eligible individual account plans” (“EIAPs”) as defined by ERISA. See id. § 1107(b)(1),

7    (b)(3), (d)(3).2       Participants in either plan have the ability to contribute funds from their salaries

8    and to determine how to allocate and invest those funds among the various available investment

 9   options selected by certain of the defendants.

10              The UBS Stock Fund was an available investment option under both plans during the

11   class period.       The SIP Investment Committee, a named defendant, has discretion to add or

12   delete authorized investment funds available to employees participating in the SIP, including the


     1
       The operative class period is that alleged in the Second Consolidated Amended Complaint (“SCAC”), March 17,
     2008–October 16, 2008. For an explanation of why this period governs, see our companion Summary Order, filed
     today.
     2
         EIAPs are defined in 29 U.S.C. § 1107(d)(3) as follows:

                  [A]n individual account plan which is (i) a profit-sharing, stock bonus, thrift, or savings plan; (ii)
                an employee stock ownership plan [“ESOP”]; or (iii) a money purchase plan which was in existence
                on September 2, 1974, and which on such date invested primarily in qualifying employer securities.
                Such term excludes an individual retirement account or annuity described in section 408 of Title 26.
                . . . Notwithstanding [i–iii], a plan shall be treated as an eligible individual account plan with respect
                to the acquisition or holding of qualifying employer real property or qualifying employer securities
                only if such plan explicitly provides for acquisition and holding of qualifying employer securities or
                qualifying employer real property . . . .

     29 U.S.C. § 1107(d)(3) (emphasis added). ESOPs are therefore a kind of EIAP, as are other profit-sharing, stock
     bonus, thrift or savings plans. See Wright v. Or. Metallurgical Corp., 360 F.3d 1090, 1094 (9th Cir. 2004). In
     general, ERISA plans are not permitted to invest more than ten percent of their assets in the sponsoring employer’s
     securities or real property. 29 U.S.C. § 1107(a). EIAPs are exempt from this requirement. Id. § 1107(b)(1).
     Courts have noted accordingly that EIAPs seek to promote, among other things, “investment in employer securities,”
     and therefore “are subject to many of the same exceptions [including the duty to diversify and prohibitions against
     self-dealing] that apply to ESOPs” in particular. Edgar v. Avaya, Inc., 503 F.3d 340, 347 (3d Cir. 2007); see also 29
     U.S.C. § 1104(a)(2) (exempting all EIAPs from duty to diversify in certain instances); Id. § 1108(e)(3)(A) (exempting
     all EIAPs from prohibition against self-dealing in certain instances).
                                                                    4
 1   UBS Stock Fund, which “tracked the performance of the underlying common stock of UBS.”

 2   (JA-600.) The SIP Plan Document tasks the SIP Investment Committee with the general

 3   responsibility to “instruct and advise the Trustee and the Members [of the SIP] as to the addition

 4   or deletion of an authorized Investment Fund.”          (JA 914, § 9.2.)

 5            The Plus Plan Investment Committee, another named defendant, is permitted to add or

 6   delete any investment fund authorized by the Plus Plan as an investment option, including the

 7   UBS Stock Fund. The UBS Stock Fund, however, is identified in the Plus Plan Summary Plan

 8   Description as one of the “Core Tier” funds, and the Plus Plan Plan Document states that the Plus

 9   Plan Investment Committee “shall” provide it as an investment option under the plan.

10   (JA-1086; JA-992.)

11            Both the SIP and the Plus Plan sustained significant losses due to individual plan

12   participants’ accounts’ investment in the UBS Stock Fund.             UBS stock fell some seventy-four

13   percent between April 26, 2007, when it reached a twelve-month high, and the last day of the

14   class period, October 16, 2008.        It is these losses that provide the foundation for plaintiffs’

15   claims that defendants breached their various fiduciary duties under ERISA.

16            Defendants are alleged fiduciaries of the plans and include UBS, UBSFS, UBS Americas,

17   Inc. (“UBSA”),3 the members of UBS’s Executive Board, the members of UBSFS’s Executive

18   Committee, UBSFS’s Board of Directors, members of the SIP Investment Committee, members

19   of the Plus Plan’s Benefits Administration Committee (“Plus Plan Administration Committee”),

20   and the members of the Plus Plan’s Investment Committee.

21   II. Allegations of the Second Consolidated Amended Complaint

22            Plaintiffs’ allegations arise principally out of two decisions UBS made in the years

     3
         UBSFS is a wholly owned subsidiary of UBSA, which is, in turn, a wholly owned subsidiary of UBS.
                                                            5
 1   leading up to and including the class period.       The first is UBS’s decision to invest in, and its

 2   subsequent exposure to the risks of, more than $100 billion in subprime mortgage backed

 3   securities and other fixed income assets.      UBS’s decision to make these investments, often in

 4   contravention of its own stated risk policies, has been the subject of an SEC investigation, a

 5   Swiss Federal Banking Commission investigation, and a Shareholder Report issued by UBS.4

 6   The second related decision is the approximately $43 billion of write-downs in assets that UBS

 7   undertook between October 30, 2007, and August 12, 2008.

 8           As a result of these write-downs, which are alleged to be due in large part to UBS’s risky

 9   subprime investments, plaintiffs allege that UBS found itself on the “[b]rink of [c]ollapse” in

10   2008. (JA-653.)       Based on these write-downs and UBS’s reported assets, plaintiffs allege that

11   UBS was insolvent, and as such, the Swiss government had to “bail out” UBS by taking on “a

12   $60 billion portfolio of illiquid and highly risky assets” from the company “that had little or no

13   real value.” (JA-658.)

14           Plaintiffs accordingly filed suit on behalf of themselves and all others similarly situated,

15   alleging that, during the relevant class period, defendants breached their fiduciary duties under

16   ERISA by (1) imprudently continuing to offer participants in both the Plus Plan and the SIP the

17   option to invest in the UBS Stock Fund because UBS stock and the UBS Stock Fund were

18   adversely affected by, inter alia, UBS’s investments in risky subprime mortgage backed

19   securities and other fixed income assets (“Count 1”); (2) making misstatements or omissions


     4
       A summary of the UBS shareholder report is publically available. See SHAREHOLDER REPORT ON UBS’S
     WRITE-DOWNS (2008), available at http://www.static-ubs.com/global/en/about_ubs/investor_relations/agm/2008
     /agm2008/invagenda/_jcr_content/par/linklist_9512/link.277481787.file/bGluay9wYXRoPS9jb250ZW50L2RhbS91
     YnMvZ2xvYmFsL2Fib3V0X3Vicy9pbnZlc3Rvcl9yZWxhdGlvbnMvMTQwMzMzXzA4MDQxOFNoYXJlaG9sZ
     GVyUmVwb3J0LnBkZg==/140333_080418ShareholderReport.pdf. UBS prepared this summary for the public but
     provided the Swiss Federal Banking Commission with a longer 400-page report, which has not been made publicly
     available.
                                                          6
 1   regarding UBS’s true financial condition in breach of their duty of candor (“Count 2”); (3)

 2   failing to adequately monitor other fiduciaries, for co-fiduciary liability, and quantum meruit

 3   (“Counts 3, 5, and 6” or “secondary liability claims”); and (4) engaging in wrongful conflicts of

 4   interest (“Count 4”).

 5   III. Procedural Background

 6          Three separate ERISA actions were brought against UBS in the Southern District of New

 7   York beginning in July 2008. After these actions were consolidated, plaintiffs filed a

 8   consolidated complaint, followed in November 2008 by the Consolidated Amended Complaint

 9   (“AC”).    After receiving notification that defendants were seeking leave to file a motion to

10   dismiss the AC, plaintiffs elected to stand on the allegations of that complaint.   Defendants

11   moved to dismiss on January 16, 2009, but the District Court stayed disposition of the motion

12   until certain issues in a related action were resolved.

13      A. Motion to Dismiss

14          The District Court granted defendants’ motion to dismiss the AC in its entirety in an

15   opinion dated March 24, 2011, and entered final judgment on March 27, 2011. See In re UBS

16   AG ERISA Litig., No. 08 Civ. 6696, 2011 WL 1344734 (S.D.N.Y. Mar. 24, 2011).

17          It dismissed Count 1, plaintiffs’ duty of prudence claim, reasoning that because the Plus

18   Plan required that investors be offered the option of investing in the UBS Stock Fund, and the

19   SIP “strongly encourage[d]” defendants to offer the option to invest in the UBS Stock Fund,

20   defendants were entitled to a presumption of prudence in accordance with Moench v. Robertson,

21   62 F.3d 553 (3d Cir. 1995). In re UBS AG ERISA Litig., 2011 WL 1344734, at *4-5. Thus,

22   the District Court reviewed defendants’ decisions to continue offering the UBS Stock Fund as an

23   investment option under either plan for an abuse of discretion. Id. at *6.    It held that the
                                                       7
 1   decline of UBS’s share price, alleged to be approximately seventy-four percent,5 was

 2   insufficient to overcome the presumption of prudence, and that there were no other allegations

 3   “making it plausible that UBS’s solvency or viability as a going concern was ever realistically in

 4   jeopardy” or otherwise setting forth a sufficiently “dire” situation. Id. at *8.                     The District

 5   Court held also that, even if the allegations of the complaint could be viewed as establishing

 6   sufficiently dire circumstances for the company, there were no allegations that those

 7   circumstances “appeared imminent to Defendants.” Id.

 8            As to Count 2, plaintiffs’ duty of candor claim, the District Court held that defendants did

 9   not have any duty to “disclose to plan participants material information relating to the company’s

10   financial condition,” and that the alleged misstatements were made when defendants were acting

11   in their corporate fiduciary, rather than ERISA fiduciary, capacity. Id. at *9.                       Additionally, the

12   District Court noted it believed this claim was not pled with the requisite degree of “specificity.”

13   Id. at *10. It therefore dismissed Count 2.

14            The remaining counts, those alleging that defendants had breached their duties of care

15   and loyalty by failing to avoid conflicts of interest and for secondary liability, were also

16   dismissed.      The court determined that they were nothing more than a “rehashing of [the other

17   dismissed] claims” and thus failed as well.              Id. at *11.

18       B. Motion to Alter or Amend the Judgment

19            On April 20, 2011, plaintiffs filed a motion to alter or amend the judgment and requested

20   leave to file the proposed SCAC.             The District Court denied this motion on March 23, 2012, in

21   part because all of the additional allegations in the SCAC could have been raised “prior to the

     5
       As the District Court noted in its order, plaintiffs “revised their figures” in their brief opposing defendants’ motion to
     dismiss the AC to “allege that UBS’s stock price fell 69%.” In re UBS AG ERISA Litig., 2011 WL 1344734, at *2,
     n.5. The AC and the SCAC both allege, however, that the stock price fell seventy-four percent.
                                                                  8
 1   entry of judgment” (many, even prior to the end of briefing on the motion to dismiss), and the

 2   motion was therefore untimely. In re UBS AG ERISA Litig., No. 08 Civ. 6696, 2012 WL

 3   1034445, at *4 (S.D.N.Y. Mar. 23, 2012).              In deciding plaintiffs’ motion to alter or amend the

 4   judgment, the District Court also considered the merits of the allegations in the SCAC,

 5   determining that “although Plaintiffs’ proposed SCAC contains dozens of amendments, they

 6   would not alter the Court’s conclusion that neither the presumption of prudence was overcome

 7   nor the duty of candor violated.”        Id. at *7.     Thus, the District Court concluded that the

 8   additional allegations contained in the SCAC could not cure the deficiencies which had led to

 9   dismissal previously, and so the proposed amendment was futile in any event. Id. at *7-8.

10                                                    DISCUSSION

11   I. Presumption of Prudence

12       A. Standard of Review
13           As with any review of a Rule 12(b)(6) motion to dismiss, the District Court’s

14   determination that the Moench presumption of prudence applies to the fiduciaries of the two

15   plans is reviewed de novo.        See, e.g., Maloney v. Soc. Sec. Admin., 517 F.3d 70, 74 (2d Cir. 2008)

16   (per curiam). We accept as true the facts alleged in the AC,6 and may consider documents it

17   incorporates by reference, as well as documents upon which it “relies heavily,” in deciding this

18   appeal. DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (internal quotation

19   marks omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual

20   matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

21   556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

22
     6
      For an explanation of why the facts alleged in the AC, with the exception of the class period alleged in the SCAC,
     govern this Opinion, see our companion Summary Order, filed today.
                                                              9
 1      B. The Moench Presumption
 2          All ERISA fiduciaries are required to act in accordance with, inter alia, the duty of

 3   prudence, which requires those fiduciaries to make reasonable investment and managerial

 4   decisions on behalf of the ERISA plan they are overseeing, such that a “prudent man acting in a

 5   like capacity and familiar with such matters would use” similar “care, skill, prudence, and

 6   diligence.” 29 U.S.C. § 1104(a)(1). In In re Citigroup ERISA Litig., 662 F.3d 128, 138 (2d

 7   Cir. 2011), we adopted a “presumption of prudence” that applies to fiduciaries of certain plans

 8   who invest the plan they are overseeing, or offer participants the option to invest their individual

 9   accounts, in the employer’s stock.   See also Gearren v. McGraw-Hill Cos., 660 F.3d 605, 610

10   (2d Cir. 2011) (“Gearren II”) (same).     The presumption dictates that, where applicable, a

11   fiduciary’s decision to invest an employer’s retirement plan in the employer’s own stock — or to

12   offer plan participants the option to so invest — is a presumptively prudent decision in

13   compliance with ERISA, and thus the decision to invest in the employer’s stock is reviewed only

14   for an abuse of discretion.   In re Citigroup ERISA Litig., 662 F.3d at 138-40. An ERISA

15   fiduciary appropriately may be found to have exceeded this discretion only where she knew or

16   should have known that the employer, and therefore its stock, was in a “dire situation.” Id. at

17   140 (internal quotation marks omitted).

18          The Moench presumption was created in consideration of the fact that while Employee

19   Stock Ownership Plans (“ESOPs”), “unlike pension plans, are not intended to guarantee

20   retirement benefits,” such ESOP fiduciaries still “must act in accordance with the [applicable]

21   duties of loyalty and care.” Moench, 62 F.3d at 568-69.      Thus, the Third Circuit decided that

22   “an ESOP fiduciary who invests the assets in employer stock is entitled to a presumption that it

23   acted consistently with ERISA by virtue of that decision.” Id. at 571. We have subsequently
                                                      10
 1   held that the presumption applies not only to ESOPs, but also to certain EIAPs, the kind of plan at

 2   issue in this case. See In re Citigroup ERISA Litig., 662 F.3d at 138 (adopting presumption,

 3   where applicable, “with respect to both EIAPs and ESOPs”).

 4          We have stated, however, that it is not merely investment in employer stock that entitles a

 5   defendant to a presumption of prudence.      Rather, “judicial scrutiny should increase with the

 6   degree of discretion a plan gives its fiduciaries to invest.   Thus, a fiduciary’s failure to divest

 7   from company stock is less likely to constitute an abuse of discretion if the plan’s terms require

 8   — rather than merely permit — investment in company stock.” Id. (citation omitted); accord

 9   Moench, 62 F.3d at 571 (indicating presumption does not apply where the fiduciary is “simply

10   permitted to make” investments in an employer’s securities, but only where “the fiduciary

11   presumptively is required to invest in employer securities”).

12      C. Presumption of Prudence in the Instant Case

13          The District Court found that both the SIP and the Plus Plan sufficiently mandated or

14   encouraged their fiduciaries to provide plan investors the option to invest in the UBS Stock Fund

15   so as to trigger the presumption of prudence. In re UBS AG ERISA Litig., 2011 WL 1344734,

16   at *4-6.   Because each plan document sets forth different language regarding whether the UBS

17   Stock Fund was to be offered as an investment option, we examine each in turn.

18                 i.   Plus Plan

19          Section 1.2 of the Plus Plan Plan Document states that the “purpose” of the plan is to

20   “attract and retain qualified individuals by providing them with an opportunity to accumulate

21   assets for their retirement and to acquire [UBS] Common Stock.”         (JA 990, § 1.2.)   Section

22   11.2(a) of the same document states that “[t]he Trustee shall invest and reinvest all amounts in

23   each Participant’s Accounts . . . from among the Investment Funds made available by the
                                                       11
 1   Investment Committee . . . one of which shall be the [UBS] Common Stock Fund.” (JA 992, §

 2   11.2 (emphasis added).) The Investment Committee is allowed to “add[ ] or delete[ ]” any of

 3   the available investment funds, presumably including the UBS Stock Fund, “from time to time.”

 4   (Id.)

 5           This language mirrors the language of the plan document at issue in Gearren. There,

 6   the plan document provided that the “Plan shall offer (a) the ‘Stock Fund’ which will be invested

 7   primarily in Common Stock of the Corporation.” Gearren v. McGraw-Hill, 690 F. Supp. 2d

 8   254, 262 (S.D.N.Y. 2010) (“Gearren I”).             The plan document at issue in Gearren provided also

 9   that “[t]he Pension Investment Committee is authorized to terminate the existing Funds,”

10   including the employer’s own stock fund. Brief for Plaintiffs-Appellants at 8-9, Gearren v.

11   McGraw-Hill, 660 F.3d 605 (2d Cir. 2011) (No. 10-792-cv).

12           As in Gearren, the relevant sections of the Plus Plan Plan Document require, at least

13   initially, that the UBS Stock Plan be offered as an investment option.               The Plan Document does

14   provide the Plus Plan Investment Committee a means by which to terminate the company’s fund

15   as an investment option if it so chooses.         But the ability to remove the company’s fund from

16   those funds available to plan investors existed also in Gearren, where we applied the

17   presumption of prudence.7 See Gearren II, 660 F.3d at 610.

18           As the District Court held, “[b]ecause the Plus Plan [Plan Document] clearly and

19   explicitly limits the trustee’s discretion by requiring that the UBS Stock Fund be offered as an

20   investment option, the Plus Plan fiduciaries are entitled to a presumption of prudence.” In re

21   UBS AG ERISA Litig., 2011 WL 1344734, at *5.                 We agree that the Plus Plan Plan Document


     7
      As the District Court deciding Gearren I reasoned, the “plain language of the plan agreements thus states that the
     Committee must offer the Stock Fund . . . . [and] commanded the actions at issue.” 690 F. Supp. 2d at 263-64.
                                                             12
 1   required the plan’s fiduciaries to offer the UBS Stock Fund and, therefore, affirm the District

 2   Court’s holding that the fiduciaries of the Plus Plan are entitled to the presumption of prudence

 3   in reviewing their decision to offer the UBS Stock Fund as an investment option.

 4                 ii.   SIP
 5          Unlike the Plus Plan, the SIP Plan Document contains no language mandating that the

 6   UBS Stock Fund “shall” be offered as an option to investors in the plan. The SIP Plan

 7   Document, however, does include several mentions of the UBS Stock Fund.

 8          Section 2.1 of the SIP Plan Document lists and defines the “UBS Stock Fund” as among

 9   the relevant terms in the plan documentation. It offers the following definition of the UBS

10   Stock Fund:     “[T]he portion of the Plan and the Trust Fund invested in UBS Shares . . .

11   includ[ing] such other assets as the Trustee may deem appropriate while assets are awaiting

12   investment in UBS Shares.” (JA 872, § 2.1(ll).)

13          Section 9.2 of the SIP Plan Document states that “the [SIP Investment] Committee may

14   . . . from time to time eliminate any current Investment Fund and/or designate other Investment

15   Funds to be available for the investment of the funds credited to the Accounts of Members under

16   the Plan.” (JA-914, § 9.2.)     Notably, the UBS Stock Fund is not mentioned by name in this

17   section.   Presumably, however, it is an “Investment Fund” that the SIP Investment Committee

18   could add or delete from the Plan in accordance with section 9.2.

19          Section 9.7 is entitled “UBS Shares,” and describes, inter alia, the manner in which

20   dividends from the UBS Stock Fund are to be reinvested subsequent to the Investment

21   Committee’s decision to add the Fund as an investment option under the plan as of April 2, 2001,

22   as well as how voting rights for UBS stock are to be administered to plan participants.

23
                                                      13
1            The District Court determined that these references to the UBS Stock Fund, the only fund

2    mentioned by name in the SIP Plan Document, sufficiently established that the UBS Stock Fund

3    was a “strongly encouraged” investment option so as to entitle the SIP fiduciaries to the

4    presumption of prudence.     It reasoned that “[S]ection 9.2 [, allowing for the addition or deletion

5    of any Investment Fund,] does not undermine the conclusion that . . . the settlor intended to

6    strongly encourage a fiduciary to . . . facilitate employee ownership of employer stock,” and

7    “[a]s such, the provisions of the SIP Document provide sufficient evidence of the settlor’s clear

8    intent that the Stock Fund be offered as an investment option.” In re UBS AG ERISA Litig.,

9    2011 WL 1344734, at *5 (citations and internal quotations omitted).

10           We are not similarly persuaded that the aforementioned passages from the SIP Plan

11   Document amount to strong encouragement.        The SIP, unlike the Plus Plan and the plans in

12   Gearren and Citigroup, does not in any way require or encourage its fiduciaries to offer the UBS

13   Stock Fund as an investment option to plan participants, as opposed to any other available

14   investment fund. See In re Citigroup ERISA Litig., 662 F.3d at 138 (“[A] fiduciary’s failure to

15   divest from company stock is less likely to constitute an abuse of discretion if the plan’s terms

16   require—rather than merely permit—investment in company stock.”).          The SIP Plan Document

17   simply lists the UBS Stock Fund as one potential investment option, and notes that the

18   Investment Committee ultimately did, in 2001, decide to offer the fund as an investment option

19   to plan participants.   That the SIP Plan Document also describes particular ways that dividends

20   and voting rights accruing from the UBS Stock Fund should be distributed to plan participants

21   does not change our conclusion.     These subsections are relevant only if the Investment

22   Committee has already made the entirely discretionary decision to add the fund as an option in

23   the first instance.
                                                      14
 1           EIAPs, of which the SIP is one, have an ERISA-recognized interest in “encourag[ing] . . .

 2   employee ownership [of the employer’s stock] through the special status provided to . . . eligible

 3   individual account plans.” In re Citigroup ERISA Litig., 662 F.3d at 136.        In light of this goal,

 4   it is likely that many EIAPs will, when possible, provide their fiduciaries a discretionary means

 5   by which to offer plan participants the ability to invest in the employer’s stock.   If the

 6   presumption of prudence was triggered in every instance where the EIAP plan document, as

 7   here, simply (1) named and defined the employer’s stock in the plan document’s terms, and (2)

 8   allowed for the employer’s stock to be offered by the plan’s fiduciaries on a discretionary basis

 9   to plan participants, then we are hard pressed to imagine that there exists any EIAP that merely

10   offered the option to participants to invest in their employer’s stock whose fiduciaries would not

11   be entitled to the presumption of prudence.

12           Such an outcome contravenes our reasoning in In re Citigroup ERISA Litig. and Gearren

13   II, and the reasoning employed by the Third Circuit in creating the presumption of prudence in

14   the first instance.   The presumption of prudence was applied in those cases to address the

15   “tension” between “the competing ERISA values of protecting retirement assets and encouraging

16   investment in employer stock” that exists primarily in instances where a fiduciary has an

17   “explicit obligation to act in accordance with plan provisions” by offering employer stock to

18   participants. In re Citigroup ERISA Litig., 662 F.3d at 136, 138-39; see also Edgar v. Avaya,

19   503 F.3d 340, 346 (3d Cir. 2007) (noting guiding principle in trust law that “if the trust merely

20   permits the trustee to invest in a particular stock, then the trustee’s investment decision is subject

21   to de novo judicial review.”) (internal quotation marks omitted); In re Schering-Plough Corp.

22   ERISA Litig., 420 F.3d 231, 238 n.5 (3d Cir. 2005), amended by 2005 U.S. App. LEXIS 19862

23   (3d Cir. Sept. 15, 2005) (noting Moench presumption was “inapposite” where fiduciaries were
                                                      15
 1   “simply permitted to make investments in employer securities”) (internal quotation marks and

 2   alterations omitted); Moench, 62 F.3d at 571 (indicating presumption applies where “fiduciary

 3   presumptively is required to invest in employer securities,” but not where the fiduciary is

 4   “simply permitted to make such investments”).

 5             Here, the tension between these competing concerns is weak at best, if not absent

 6   entirely. And, as noted, the SIP fiduciaries had no such “obligation” to offer the UBS Stock

 7   Fund.   The UBS Stock Fund was one investment fund among many that the SIP Investment

 8   Committee had the discretion to offer.    It was free to offer it, or not.   The SIP Plan Document,

 9   particularly Section 9.2, clearly establishes that the UBS Stock Fund was to be treated no

10   differently from any other investment fund that the SIP Investment Committee elected to offer to

11   participants.   Thus, the SIP fiduciaries should not benefit from an especial presumption that

12   they behaved prudently merely by offering it to plan participants.

13           Accordingly, we hold that, because the SIP Plan Document does not require or even

14   “strongly encourage” investment in the UBS Stock Fund, but instead simply presents it as one

15   permissible investment option, fiduciaries of the SIP are not entitled to the presumption of

16   prudence. The District Court erred in holding otherwise.

17   II. Additional Claims
18           The District Court dismissed plaintiffs’ claims for secondary liability, raised in Counts 3,

19   5, and 6 of the AC, reasoning that those claims were dependent upon, among others, plaintiffs’

20   breach of the duty of prudence claim.    Because we hold that plaintiffs’ breach of the duty of

21   prudence claim as to the SIP was wrongly dismissed, the secondary liability claims raised in




                                                      16
1   Counts 3, 5, and 6 based on the SIP and its fiduciaries8 are also reinstated.           We affirm the

2   District Court’s dismissal of Counts 2 and 4, however, for the reasons stated in our companion

3   Summary Order, filed today.

4                                                 CONCLUSION

5           For the aforementioned reasons, the order of the District Court denying

6   Plaintiffs-Appellants’ motion to dismiss is AFFIRMED in part and VACATED in part, and the

7   case is REMANDED for further proceedings consistent with this opinion.




    8
     The District Court declined to address whether plaintiffs’ complaint adequately alleged that the various named
    defendants were ERISA fiduciaries of the SIP and/or Plus Plan. In re UBS AG ERISA Litig., 2011 WL 1344734, at *4
    n.11. We decline to analyze this issue for the first time on appeal.
                                                          17
