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IBM Wants Stock-Drop Ruling Revisited by Full Second Circuit

Dec. 24, 2018, 3:33 PM

International Business Machines Corp. want a federal appeals in New York to revisit a ruling that revived a lawsuit by workers accusing the company of failing to protect their retirement savings from a 7 percent drop in company stock.

Earlier this month, the U.S. Court of Appeals for the Second Circuit handed IBM workers a rare win by reviving their Employee Retirement Income Security Act lawsuit.

Following the U.S. Supreme Court’s 2014 decision in Fifth Third Bancorp v. Dudenhoeffer, courts have consistently rejected lawsuits by 401(k) investors challenging drops in company stock involving companies such as RadioShack, WellsFargo, Target, Lehman Brothers, Citigroup, Whole Foods, JPMorgan, L-3 Communications, and BP Plc, among others.

IBM wants the full Second Circuit to rehear the case and affirm the lawsuit’s dismissal, according to documents filed Dec. 21.

The Second Circuit held that the workers sufficiently alleged that no prudent ERISA plan fiduciary in IBM’s position could have concluded that an early corrective disclosure would have done more harm than good to the company’s stock price.

The ruling conflicts with governing authority providing that fiduciary duties under ERISA can’t arise outside a fiduciary capacity. It allegedly provides conflicting standards to employee stock ownership plan fiduciaries who also serve as corporate officers, IBM said in its petition for a rehearing. The ruling breached the “basic barrier” between defendants’ capacity as corporate officers and their capacity as ERISA fiduciaries, IBM said.

The confusion could frustrate one of Congress’s stated intentions for ERISA, which was to encourage companies to offer ESOPs to their employees, the company said. It could also encourage forum shopping among investors desperate to avoid the uniformly contrary rulings in other circuits, the company said.

Zamansky LLC represented the workers. Davis Polk & Wardwell represented IBM.

The case is Jander v. Ret. Plans Comm. of IBM, 2d Cir., No. 17-3718, petition for rehearing en banc 12/21/18.

To contact the reporter on this story: Carmen Castro-Pagan in Washington at

To contact the editor responsible for this story: Jo-el J. Meyer at