12-3401-cv
Laboy v. Bd. of Trustees of Bldg. Serv. 32 BJ SRSP

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
6th day of March, two thousand thirteen.

Present:
                 CHESTER J. STRAUB,
                 PETER W. HALL,
                 CHRISTOPHER F. DRONEY,

                        Circuit Judges.
____________________________________________________

BRUCE LABOY, Individually, and on behalf of a
class of all others similarly situated, and on behalf
of the Building Service 32 BJ SRSP Fund,

                         Plaintiff-Appellant,
                 v.                                                 No.     12-3401-cv

BOARD OF TRUSTEES OF BUILDING
SERVICE 32 BJ SRSP, HOWARD I.
ROTHSCHILD, JOHN SANTORA, CHARLES
DOREGO, FRED WARD, MICHAEL P.
FISHMAN, KEVIN J. DOYLE, HECTOR J.
FIGUEROA, BRIAN LAMBERT, LARRY
ENGELSTEIN,

                        Defendants-Appellees.

____________________________________________________
FOR APPELLANT:                  ROBERT J. BERG (James R. Denlea, Jeffrey I. Carton, on the brief)
                                Meiselman, Denlea, Packman, Carton & Eberz, P.C., White Plains,
                                N.Y.

FOR APPELLEES:                  MYRON D. RUMELD (Brian S. Neulander, Proskauer Rose LLP, and
                                Jacob Karabell, Bredhoff & Kaiser, PLLC, on the brief), Proskauer
                                Rose LLP, New York, N.Y.
_____________________________



     Appeal from a judgment of the United States District Court for the Southern District of
New York (Baer, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant Bruce Laboy appeals from a judgment entered by the district court on

August 8, 2012, granting Defendants’ motion to dismiss Laboy’s Second Amended Complaint

(the “Complaint”) alleging that Defendants breached their fiduciary duty under the Employee

Retirement Income Security Act of 1974 (“ERISA”), as amended. We assume the parties’

familiarity with the underlying facts, procedural history, and issues on appeal.

       The district court held that the Complaint asserted merely conclusory statements

unsupported by facts which could plausibly establish that Defendants breached their fiduciary

duty to manage prudently the Local 32 BJ Union’s 401(k) plan (the “Plan”). Laboy argues that

the Complaint satisfied the notice pleading standard of Bell Atlantic Corp. v. Twombly, 550 U.S.

544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), by alleging facts showing that Defendants

failed to remove from its roster of investments the Plan’s default fund, Putnam Asset Allocation:

Conservative Portfolio Y (the “Putnam Fund”)—into which Plan contributions were placed in the

event a contributor did not select one of the alternative funds—despite the Putnam Fund’s lagging

performance and high expense ratio relative to other comparable funds.

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        Under ERISA, a fiduciary is required to “discharge his duties with respect to a plan . . .

with the care, skill, prudence, and diligence under the circumstances then prevailing.” 29 U.S.C.

§ 1104(a)(1)(B). To state a claim for breach of a fiduciary duty, a plaintiff must allege that (1) the

defendant was acting as a fiduciary of the plan, (2) the defendant breached that duty, and (3) the

breach caused harm to the plaintiff. Pegram v. Herdrich, 530 U.S. 211, 225-26 (2000). On

review of a district court’s judgment dismissing a complaint for failure to state a claim, we accept

as true all facts alleged in a complaint and draw all reasonable inferences in plaintiff’s favor.

ECA & Local 134 IBEW Joint Pension Trust of Chicago v. JP Morgan Chase Co., 553 F.3d 187,

196 (2d Cir. 2009).

        The parties do not dispute that Defendants are fiduciaries of the Plan. Laboy argues that

the Complaint has alleged sufficient facts to establish that Defendants breached their fiduciary

duty. Specifically, Laboy points to allegations in the Complaint that Defendants failed to

implement a procedure providing for review of the Putnam Fund’s performance and fee structure,

Complaint ¶ 55; failed to inform themselves of comparable alternatives to the Putnam Fund, id. at

¶ 86; and failed to discontinue the Putnam Fund as their default fund even when it was clear that

the Putnam Fund lagged behind comparable funds in its performance and management expenses,

id. at ¶ 62. The Complaint compared the one-, three-, and five-year returns and management fees

of the Putnam Fund with those of eight other funds, which Laboy characterized as minimal risk-

exposure alternatives to the Putnam Fund.1 The Complaint alleged that the Putnam Fund had the




1
 In his First Amended Complaint, Laboy also alleged that over the one-year period ending March 31, 2011, the
Putnam Fund performed in the top 44% of comparable funds; over a three-year period, in the top 36%; over a five-
year period, in the top 61%; and over a ten-year period, in the top 37%. First Am. Compl. ¶ 53. Laboy’s Second
Amended Complaint omits these figures.
                                                        3
worst performance of all nine funds over each period and carried the second highest expense ratio

of all the listed funds.2 Id. at ¶ 68. Laboy cites no authority for these statistics.3

        These allegations are insufficient to meet Laboy’s burden to plead a breach of fiduciary

duty. It is well-established that allegations of poor results alone do not constitute allegations

sufficient to state a claim for such a breach. In re Citigroup ERISA Litig., 662 F.3d 128, 140 (2d

Cir. 2011) (noting that “[t]he test of prudence is . . . one of conduct rather than results”). As the

district court correctly held, Laboy has failed to allege any conduct by Defendants that could

plausibly establish a breach of fiduciary duty. Laboy cites Braden v. Wal-Mart Stores, Inc., 588

F.3d 585 (8th Cir. 2009), as support for the adequacy of its pleadings, arguing that the Complaint

pleads a claim comparable to the one recognized in Braden. There, the court held that a 401(k)

plan participant had sufficiently pleaded a claim for breach of fiduciary duty when the plaintiff

alleged that the plan’s fiduciaries failed to consider a conflict of interest on the part of Merrill

Lynch, the plan’s trustee, which stood to collect portions of fees if certain funds were included in

the plan’s portfolio. Id. at 589-90. Braden charged that “the process by which mutual funds were

selected was tainted” by the fiduciaries’ failure to consider Merrill Lynch’s self-dealing, thereby

resulting in higher management fees. Id. at 590. The Braden court noted that the plaintiff

“allege[d] extensive facts in support of these claims,” including that although the plan, which had

nearly $10 billion in assets, qualified for low-expense institutional shares of mutual funds, the

plan opted for retail shares, which were generally available to individual investors and carried

higher fees than the institutional shares. Id.


2
 It is not evident from the Complaint at what date the expense ratio calculations were made.
3
 The statistics comparing the Putnam Fund to eight comparable alternative funds carry little weight in light of the
allegation, later in the Complaint, that over the five-year period ending on March 31, 2011, the Putnam Fund “ranked
188 out of 312 [comparable] funds (61st percentile),” thus placing the Putnam Fund near the middle of the pack in a
performance assessment. ¶ 75.
                                                         4
        Braden is therefore easily distinguished from the case before us. Braden alleged specific

conduct—the fiduciaries’ failure to foresee that Merrill Lynch’s self-dealing resulted in higher

management fees—which resulted in the plan being charged excessive fees. Here, Laboy has not

alleged a similar failure. Rather, he relies on Defendants’ decision in March 2011 to change from

the Putnam Fund to the Vanguard Wellesley Income Fund as the Plan’s default fund, the Putnam

Fund’s poor performance relative to comparable funds over the last five years, and the Fund’s

volatility and high management fees.4 Such observations are not adequate to permit a plausible

inference that the Defendants breached their fiduciary duties.

        In sum, Laboy has failed to establish that the foregoing factors were so unreasonable as to

render the fund an improper investment, thereby making the fiduciaries’ decision to stick with the

fund from 2001 through 2011 a breach of their fiduciary duty.

        We have considered all of Laboy’s remaining arguments and find them to be without

merit. The judgment of the district court is AFFIRMED.

                                                              FOR THE COURT:
                                                              Catherine O’Hagan Wolfe, Clerk




4
  In Young v. Gen. Motors Corp., 325 F. App’x 31, 33 (2d Cir. 2009), this Court considered as “useful” the standard
articulated for claims under the Investment Company Act in the context of the plaintiffs’ claim under ERISA for
breach of fiduciary duty based on excessive fees. This calls for balancing the fee charged against “the services
rendered.” Id. (internal quotation marks omitted). To the very limited extent that Laboy has alleged the facts
required for such balancing, the fees charged do not appear disproportionate to the services rendered.
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