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Appeals from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 06 C 4900—John W. Darrah, Judge.
ARGUED SEPTEMBER 13, 2010—DECIDED SEPTEMBER 6, 2011 Before EASTERBROOK, Chief Judge, and POSNER and EASTERBROOK, Chief Judge. Many defined-contribution pension plans offer participants an opportunity toselect investments from a portfolio, which oftenincludes mutual funds. In recent years participants inpension plans have contended that the sponsor offerstoo few funds (not enough choice), too many funds (pro-ducing confusion), or too expensive funds (meaning that the funds’ ratios of expenses to assets are need-lessly high). See, e.g., Hecker v. Deere & Co., 556 F.3d 575,rehearing denied, 569 F.3d 708 (7th Cir. 2009); Howell v.
Motorola, Inc
., 633 F.3d 552 (7th Cir. 2011); Spano v.
Boeing Co
., 633 F.3d 574 (7th Cir. 2011); George v. Kraft FoodsGlobal, Inc., 641 F.3d 786 (7th Cir. 2011). The district courtdecided that the current suit is a replay of Hecker anddismissed it on the pleadings. 2009 U.S. Dist. LEXIS 114626(N.D. Ill. Dec. 9, 2009).
Exelon’s defined-contribution pension plan allows participants to choose how their retirement assets willbe invested. It offers 32 options, including 24 mutualfunds that are open to the public. These funds are no-load vehicles. In other words, they do not chargeinvestors a fee to buy or sell shares. Purchases and salesoccur at net asset value, calculated daily. A no-load fundcovers its expenses by deducting them from the assetsunder management. So if these assets appreciate 10% ina given year, and the expenses come to 1%, investorsreceive a net gain of 9%; if the assets decline 5% in themarket, investors’ net return is -6% that year. Thefunds available to participants in the Exelon Plan haveexpense ratios ranging from 0.03% to 0.96%. The low-expense funds tend to be passively managed (indexfunds, for example, which do not make any independentinvestment choices but simply track a designatedportfolio such as the Standard & Poor’s 500 Index) andhave features that discourage turnover (an index fundtypically disallows new investments for a month ormore following any withdrawal). The high-expensefunds tend to be actively managed (that is, the fund’s investment advisers try to find and buy underpricedsecurities while selling ones that the advisers think areovervalued) and to allow rapid turnover both in thefunds’ holdings and the participants’ investments.
Higher turnover means higher brokerage fees andhigher administrative expenses.
Plaintiffs, participants in Exelon’s Plan, contend that its administrators have violated their fiduciary dutiesunder the Employee Retirement Income Security Act, see29 U.S.C. §1104(a), in two ways: by offering “retail” mutualfunds, in which participants get the same terms (andthus bear the same expenses) as the general public; andby requiring participants to bear the economic incidenceof those expenses themselves, rather than having thePlan cover these costs. Plaintiffs contend that Exelonshould have arranged for access to “wholesale” or “institu-tional” investment vehicles. Some mutual funds offera separate “institutional” class of shares, and Exelon’sPlan also could have participated in trusts and invest-ment pools to which the general public does not haveaccess.
Similar arguments were made in Hecker but did not prevail. Deere offered 25 retail mutual funds withexpense ratios from 0.07% to just over 1% annually. Weheld that as a matter of law that was an acceptable arrayof investment options, observing that “all of these fundswere also offered to investors in the general public, andso the expense ratios necessarily were set against thebackdrop of market competition. The fact that it ispossible that some other funds might have had even lower ratios is beside the point; nothing in ERISArequires every fiduciary to scour the market to find andoffer the cheapest possible fund (which might, of course,be plagued by other problems).” 556 F.3d at 586. Byoffering a wide range of options, Hecker held, Deere’splan complied with ERISA’s fiduciary duties.
Plaintiffs contend that the panel in Hecker retreated from this holding when denying a petition for rehearing.
It did not. Two principal issues were disputed inHecker: first, whether ERISA plans must offer “whole-sale” or “institutional” funds; second, whether Deere’sportfolio of funds was covered by a safe harbor,29 U.S.C. §1104(c), that made the answer to thefirst question irrelevant. The opinion denying rehearingprincipally concerned the second issue. (Exelon doesnot rely on §1104(c).) The panel reaffirmed its negativeanswer to the first question, stating that plaintiffs argued—and especially in their Petition for Re-hearing they continue to argue—that the Planswere flawed because Deere decided to accept‘retail’ fees and did not negotiate presumptivelylower ‘wholesale’ fees. The opinion discusses anumber of reasons why that particular assertionis not enough, in the context of these Plans, tostate a claim, and we adhere to that discussion.
569 F.3d at 711. Unless Hecker is to be overruled, ourplaintiffs cannot prevail. Two other circuits haveagreed with Hecker. See Renfro v. Unisys Corp., 2011 U.S.
App. LEXIS 17208 (3d Cir. Aug. 19, 2011); Braden v. Wal- Mart Stores, Inc., 588 F.3d 585 (8th Cir. 2009). Plaintiffs donot persuade us to overrule Hecker and create a conflict.
Nothing in Jones v. Harris Associates, L.P., 130 S. Ct. 1418 (2010), undermines Hecker’s analysis. The petition forrehearing in Hecker was denied three months after Jonescame down. That case dealt with the fiduciary dutiesof investment advisers, which as the Court observedhave a conflict of interest when seeking managementfees from mutual funds under their effective control.
Plaintiffs do not contend that the funds that Exelonselected had any control over it, or it over them; there isno reason to think that Exelon chose these funds toenrich itself at participants’ expense. To the contrary,Exelon had (and has) every reason to use competitionin the market for fund management to drive down theexpenses charged to participants, because the largerparticipants’ net gains, the better Exelon’s pension planis. That enables Exelon to recruit better workers, orreduce wages and pension contributions withoutmaking the total package of compensation (wages plusfringe benefits) less attractive. Competition thus assistsboth employers and employees, as Hecker observed. (Bycontrast, the plaintiffs in Braden alleged that the plansponsor limited participants’ options to ten funds as aresult of kickbacks; while adopting the approach ofHecker, the eighth circuit held this allegation sufficientto state a fiduciary claim under ERISA. Nothing of thesort is alleged in this case.) True, the participants in Exelon’s Plan press an argu- ment that was not presented to the panel in Hecker: that the Plan should have paid the expenses directly, allowingparticipants to reap the gross rather than the net re-turn. But whether to cover these expenses is a questionof plan design, not of administration. The participantswant Exelon to contribute more to the Plan than it does.
ERISA does not create any fiduciary duty requiringemployers to make pension plans more valuable to par-ticipants. When deciding how much to contribute to aplan, employers may act in their own interests. See, e.g.,Hughes Aircraft Co. v. Jacobson, 525 U.S. 432 (1999); Lock-heed Corp. v. Spink, 517 U.S. 882 (1996). Fiduciary dutiesunder ERISA are limited to a requirement of honest andprudent management of the assets that are under anadministrator’s control. So the participants’ argumentthat Exelon should have ponied up additional money,to cover the operating expenses of their retirement vehi-cles, is a non-starter. What remains is the argumentthat flopped in Hecker: that Exelon should have offeredonly “wholesale” or “institutional” funds. Exelon’s Planhas at least 8 options other than “retail” mutual funds,and plaintiffs do not complain about these; insteadthey insist that the number of “retail” funds must be zero.
Note that this is not an argument about the absolute level of fees. Any participant who wants a fund withexpenses under 0.1% can get it through Exelon’s Plan.
Nor is it an argument that Exelon has left participantsadrift and apt to blunder into the high-expense fundswhen they would be better off with the low-expensefunds. Cf. Warren Bailey, Alok Kumar & David Ng,Behavioral biases of mutual fund investors, 102 J. Fin. Econ. 1(2011). Both Exelon and the funds distribute literature and hold seminars for the participants, educating themabout how the funds differ and how to identify the low-expense vehicles. Plaintiffs do not contest the adequacyof the Plan’s and the funds’ disclosures. What plaintiffscontend instead is that, if a pension plan offers only“institutional” vehicles, fees will be lower on average,and that participants tempted by a high-expense fundmight save.
One reason Hecker rejected this argument that the administrator’s fiduciary duties require limiting choicesto “institutional” funds is that “retail” funds, beingopen to the public, give participants the benefits of com-petition. A pension plan that directs participants intoprivately held trusts or commingled pools (the sort ofvehicles that insurance companies use for assets undertheir management) lacks the mark-to-market benchmarkprovided by a retail mutual fund. It can be hard to tellwhether a closed fund is doing well or poorly, orwhether its expenses are excessive in relation to thebenefits they provide. It can be hard to value thevehicle’s assets (often real estate rather than stock orbonds) when someone wants to withdraw money, andany error in valuation can hurt other investors.
A helpful amicus brief filed by the Investment Company Institute tells us that the average expenseratio of institutional-share classes in equity funds in 2009was 1.09%, which is higher than that of any of the retailfunds offered to the participants in Exelon’s Plan. (TheICI calculates the average expense ratio of retail equityfunds at 0.76%.) Likely the professional investors who negotiate for these investments are getting somethingextra for the money, but this expense ratio is not com-patible with plaintiffs’ belief that institutional sharesalways have lower expenses. Meanwhile, institu-tional investment vehicles come with a drawback: lowerliquidity. The retail funds that Exelon offers allow dailytransfers. Participants can move their money from onevehicle to another whenever they wish, without payinga fee. In retirement, they can withdraw money daily.
Institutional trusts and pools do not offer that choice.
It is not clear that participants would gain fromlower expense ratios at the cost of lower liquidity.
Plaintiffs treat the situation as one in which Exelon, whose retirees have more than $1 billion in the Plan, couldexercise “buying power” by negotiating lower fees inexchange for a promise to place more money with agiven investment manager, while demanding the sameretail services (such as daily transfers) for whichmutual funds charge their normal expenses. Alterna-tively, plaintiffs contend, Exelon could use its “buyingpower” to insist that mutual funds charge a capitationfee (an annual flat price per investor) in lieu of expensesas a percentage of capital under management.
Now it isn’t clear to us why mutual funds would offer lower prices just because participants in this Plan havepension wealth that in the aggregate exceeds $1 billion.
Exelon can’t commit that sum, or any portion of it, to anyone fund without abandoning the arrangement underwhich the participants themselves choose where theirmoney will be invested. The expenses of retail funds derive in large measure from the need to deal with inves-tors one at a time: to receive and mail small checks, toprint and mail individual prospectuses and accountstatements, frequently to exchange modest sums fromone fund to another, and so on. Expenses per dollarunder management necessarily are higher if theaverage account is $100,000 than if it is $100,000,000.
Hertz gets a fleet discount from General Motors whenit orders 10,000 cars at a time, but Hertz does notsecure fleet discounts for members of its #1 Club to buytheir own GM cars; retail transactions occur at retailprices. So too with retail transactions in mutual funds.
Likewise it isn’t clear to us why participants would view a capitation fee as a gain. A flat-fee structuremight be beneficial for participants with the largestbalances, but, for younger employees and others withsmall investment balances, a capitation fee could workout to more, per dollar under management, than a feebetween 0.03% and 0.96% of the account balance. (Thesame holds true if plaintiffs’ argument is limited to feesof the Plan’s own recordkeeper; flat payments per par-ticipant may help some participants but hurt others,depending on the size of each participant’s account.) Even if a restructured means of covering a fund’s costs would benefit participants, it is not something thatExelon could achieve. Mutual funds are regulated underthe Securities Act of 1933, the Securities Exchange Actof 1934, and the Investment Company Act of 1940. Thesestatutes, and their implementing regulations, requiremutual funds to treat alike all investors holding the same class of shares. See 17 C.F.R. §270.18f–3. So thesponsor of a mutual fund could not agree with Exelon tooffer a special deal (lower expense ratios, capitation feesrather than expenses paid from account balances) whilegiving participants the same rights as retail investors.
And it could be hard to establish a separate class ofshares, limited to Exelon. That might run afoul of the1940 Act’s rule against senior securities, 15 U.S.C.
§80a–18(f), or the Internal Revenue Code’s rule againstpreferential dividends from investment companies, 26U.S.C. §562(c). (A mutual fund’s failure to charge ex-penses against certain investors would be economicallyequivalent to a preferential dividend.) Pension plans’ sponsors could get around these limits by creating in-house or captive mutual funds, whichthen would have only one class of shares and one set ofrights. But captive funds run into the sort of problemswe discussed above. They offer less choice (participantswould have 1 or 2 options, not the 32 Exelon currentlyoffers); they also are less liquid, less diversified, andmay be harder to value. And a captive fund also wouldbe smaller, so the expense ratio per dollar under man-agement could be higher, especially if the fund hadsome expenses that do not vary with the amount undermanagement. (The cost of writing a registration state-ment and prospectus, for example, is largely fixed, sothe smaller the fund the larger this expense looms asa percentage of invested capital.) Plaintiffs’ theory is paternalistic. They appear to believe that participants should prefer captive funds, even with loss of liquidity, and should not be allowed to invest inthe funds from the Fidelity Group that Exelon’s Plannow offers. According to plaintiffs, participants likethese mutual funds for “the wrong reasons,” such asadvertising. Since the seminars that Exelon offers havenot dissuaded the participants from continuing tocommit what plaintiffs call mistakes, they want the judi-ciary to force Exelon to make these investments impos-sible. Hostility to advertising has a long history, re-flecting a belief that advertising is costly and thusmust drive price up; but available data suggest thatadvertising promotes competition, which drives pricedown by more than the costs of the ads. See, e.g., LeeBenham, The Effect of Advertising on the Price of Eyeglasses, 15J.L. & Econ. 337 (1972); Craig A. Depken II & Dennis P.
Wilson, Is Advertising Good or Bad?, 77 J. Business S61(April 2004); John Rizzo, Advertising and Competition inthe Ethical Pharmaceutical Industry, 42 J.L. & Econ. 89 (1999).
For current purposes, it does not matter whether ad- vertising is good or bad; all that matters is the absencefrom ERISA of any rule that forbids plan sponsors toallow participants to make their own choices. Far fromreflecting a paternalistic approach, the safe harbor in§1104(c) encourages sponsors to allow more choice toparticipants in defined-contribution plans. Exelonoffered participants a menu that includes high-expense,high-risk, and potentially high-return funds, togetherwith low-expense index funds that track the market, andlow-expense, low-risk, modest-return bond funds. Ithas left choice to the people who have the most interestin the outcome, and it cannot be faulted for doing this.
This concludes our discussion of the merits. Plaintiffs have filed a second appeal, No. 10-1755, from the districtcourt’s award of some $42,000 in costs to Exelon. 2010U.S. Dist. LEXIS 24405 (N.D. Ill. Mar. 11, 2010). Thedistrict court relied on Fed. R. Civ. P. 54(d), which saysthat prevailing parties presumptively recover theircosts. Plaintiffs reply that there is an exception.
Rule 54(d)(1) begins: “Unless a federal statute, theserules, or a court order provides otherwise”. Theycontend that 29 U.S.C. §1132(g)(1) “provides otherwise”.
It reads: “In any action under this subchapter (otherthan an action described in paragraph (2) [to enforce§1145]) by a participant, beneficiary, or fiduciary, thecourt in its discretion may allow a reasonable attorney’sfee and costs of action to either party.” Section 1132(g)(1)gives the district judge more discretion than doesRule 54(d), plaintiffs contend, and therefore supersedesthe rule. Plaintiffs then assert that an award of attor-neys’ fees under §1132(g)(1) depends on a finding thatthe plaintiff sued in bad faith or in order to harass; anaward of costs must depend on the same standard, theargument continues. The district court did not orderplaintiffs to pay Exelon’s attorneys’ fees under §1132(g)(1)and therefore, the argument wraps up, cannot properlyorder plaintiffs to pay costs either.
One court of appeals has rejected this line of argument, and none has accepted it. Quan v. Computer SciencesCorp., 623 F.3d 870, 888–89 (9th Cir. 2010), holds that§1132(g)(1) does not “provide otherwise” than Rule 54(d)because it never forbids an award of costs. The ninthcircuit wrote: “To ‘provide otherwise’ than Rule 54(d)(1), the statute or rule would have to bar an award of coststo a prevailing party.” 623 F.3d at 888 (emphasis in origi-nal). We are skeptical about this conclusion. Rule 54(d)establishes a presumption in favor of an award to theprevailing party. A statute that established a presump-tion against an award of costs, but without forbiddingone, would provide “otherwise” than the rule; similarlya statute establishing a presumption that the winnerpays the loser’s costs would provide “otherwise” thanRule 54(d), even though it did not forbid an award tothe winner.
Decisions in this circuit could be read both to support and to reject the conclusion in Quan. Compare Nicholv. Pullman Standard Inc., 889 F.2d 115, 121 (7th Cir. 1989),with Quinn v. Blue Cross & Blue Shield Association, 161F.3d 472, 478–79 (7th Cir. 1998). Our court has nevergrappled directly with the subject, and it is notappropriate to read oblique remarks as answering aquestion not squarely posed. We need not resolve thisquestion definitively today, because one of the minorpremises in plaintiffs’ syllogism is wrong. Plaintiffsbelieve that only a litigant who proceeds in bad faith, orto harass, can be required to pay attorneys’ fees under§1132(g)(1), and that bad faith therefore must beessential to an award of costs. That’s not what §1132(g)(1)says.
Section 1132(g)(1) authorizes a district “court in its discretion [to] allow a reasonable attorney’s fee and costsof action to either party.” The Supreme Court dis-cussed the meaning of this language in Hardt v. Reliance Standard Life Insurance Co., 130 S. Ct. 2149 (2010), andheld that “a court ‘in its discretion’ may award fees andcosts ‘to either party’ as long as the fee claimanthas achieved ‘some degree of success on the merits.’ ” 130S. Ct. at 2152 (citations omitted). In other words, eventhe ultimate loser could receive an award of attorneys’fees and costs, if on the way to defeat the litigant wona skirmish that conferred some legal benefit. SeeRuckelshaus v. Sierra Club, 463 U.S. 680, 694 (1983). Adistrict judge need not find that the party ordered topay fees has engaged in harassment or otherwiselitigated in bad faith. Language in some appellateopinions declaring “bad faith” vital to an award under§1132(g)(1) did not survive Hardt. (Whether other ap-proaches, such as Bittner v. Sadoff & Rudoy Industries, 728F.2d 820 (7th Cir. 1984), which analogized §1132(g)(1) tothe Equal Access to Justice Act, survived Hardt, is yetanother issue we can avoid until the answer matters.) Both the rule and the statute give the district judge discretion to decide whether an award of costs is ap-propriate. Plaintiffs did not succeed on any issue in thislitigation, so the award could not run in their favorunder Hardt’s standard. Doubtless §1132(g)(1) gave thedistrict judge discretion to deny Exelon’s request forcosts—but then so did Rule 54(d). If the district judgehad understood Rule 54(d) to make an award inExelon’s favor mandatory, then a remand would benecessary, but the judge recognized that he possesseddiscretion. Plaintiffs stake their all on the propositionthat, under §1132(g)(1), attorneys’ fees and costs mustbe awarded (or denied) together, and may be awarded only to penalize misconduct by the losing side. Becausethat’s not the statutory standard, we can leave to an-other day the question whether §1132(g)(1) supersedesRule 54(d)(1) in some other situation.

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