Baird v. BlackRock Institutional Trust Company, N.A. et al

Filing 136

ORDER by Judge Kandis A. Westmore Regarding 114 115 116 117 119 Joint Discovery Letters. (kawlc2, COURT STAFF) (Filed on 7/20/2018)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CHARLES BAIRD, et al., Plaintiffs, 8 9 10 11 Case No. 17-cv-01892-HSG (KAW) ORDER REGARDING JOINT DISCOVERY LETTERS v. BLACKROCK INSTITUTIONAL TRUST COMPANY, N.A., et al., Re: Dkt. Nos. 114-117, 119 United States District Court Northern District of California Defendants. 12 13 On April 5, 2017, Plaintiffs filed the instant putative class action against Defendants, 14 alleging violations of the Employee Retirement Income Security Act's ("ERISA") fiduciary duty 15 and prohibited transactions provisions. (Compl. ¶ 1, Dkt. No. 1.) The parties filed four joint 16 discovery letters on June 7, 2018, and a fifth joint discovery letter on June 8, 2018. (Dkt. Nos. 17 114-117, 119.) On July 19, 2018, the Court held a discovery hearing on two of the letters. 18 19 I. BACKGROUND Plaintiffs bring this case on behalf of two classes: the "BlackRock Plan Class," which 20 consists of participants and beneficiaries in the BlackRock Retirement Savings Plan, and the "CTI 21 Class," which includes participants whose individual accounts were invested in BlackRock 22 proprietary collective trust investment funds ("CTIs"). (First Amended Compl. ¶ 1 ("FAC"), Dkt. 23 No. 75.) Plaintiffs allege that Defendants violated their fiduciary duties under ERISA in two 24 ways. (FAC ¶ 3.) First, Plaintiffs allege that Defendant BlackRock sponsored a 401(k) plan for 25 its employees, in which Defendant "BlackRock offers an investment menu consisting almost 26 entirely of BlackRock proprietary funds, and charges participants excessive, hidden fees, expenses 27 and other compensation paid to BlackRock and its affiliates, through a layered fund structure." 28 (FAC ¶ 5.) Second, Plaintiffs allege that Defendant BlackRock Institutional Trust Co. ("BTC"), 1 which provides management services, gave itself and its affiliates preferential treatment as to 2 compensation paid by the BlackRock CTIs. (FAC ¶¶ 6, 23.) This alleged preferential treatment 3 included paying itself excessive fees for securities lending services. (FAC ¶ 6.) II. 4 LEGAL STANDARD Under Rule 26, in a civil action, a party may obtain discovery “regarding any non- 6 privileged matter that is relevant to any party's claim or defense and proportional to the needs of 7 the case considering the importance of the issues at stake in the action, the amount in controversy, 8 the parties' relative access to relevant information, the parties' resources, the importance of the 9 discovery in resolving the issues, and whether the burden or expense of the proposed discovery 10 outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Additionally, the court must limit the 11 United States District Court Northern District of California 5 frequency or extent of discovery if it determines that: “(i) the discovery sought is unreasonably 12 cumulative or duplicative, or can be obtained from some other source that is more convenient, less 13 burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to 14 obtain the information by discovery in the action; or (iii) the proposed discovery is outside the 15 scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C). III. 16 DISCUSSION 17 A. Joint Discovery Letter No. 1 (Dkt. No. 114) 18 Joint Discovery Letter No. 1 concerns Plaintiff's Request for Production No. 33, which 19 seeks documentation and communications concerning changes to revenue sharing splits between 20 Defendant BlackRock and investors in iShares1 ETFs and mutual funds for securities lending 21 revenue. (Dkt. No. 114 at 1.) These ETFs and mutual funds are not at issue in the case. 22 Securities lending revenue is generated when a fund lends securities that it owns to a 23 borrower in exchange for collateral, which is reinvested to generate additional revenue for the 24 fund. (Id.) Plaintiffs assert that Defendant BTC charges the BlackRock CTIs a fee of 50% of this 25 revenue for its securities lending services. (Id. at 2; FAC ¶ 256.) Plaintiffs allege that this 50% 26 fee is excessive because Defendant BTC charges investors in similar BlackRock ETFs and mutual 27 28 1 iShares are managed by BlackRock. 2 1 funds a fee of 15-30% for the same services. (Dkt. No. 114 at 2; FAC ¶¶ 259-60.) Plaintiffs 2 further allege that Defendant BTC receives less compensation for its securities lending services to 3 these other BlackRock ETFs and mutual funds because those fund investors are represented by 4 independent fiduciaries, whereas Defendant BTC is the sole fiduciary representing the BlackRock 5 CTIs investors. (Dkt. No. 114 at 2; FAC ¶¶ 257-58.) To this end, Plaintiffs seek the requested 6 documents to determine how and why the securities lending fees for the mutual funds and ETFs 7 were reduced when the fees paid by the BlackRock CTIs remained at 50%. (Dkt. No. 114 at 4.) 8 Defendants argue that the discovery is not relevant because the CTIs are different from the mutual funds and ETFs, such that the fees charged are not comparable. (Dkt. No. 114 at 4.) 10 Defendants primarily argue that the CTIs "consist[] of an integrated offering of investment 11 United States District Court Northern District of California 9 management and securities lending, in exchange for an integrated or 'bundled' set of fees," in 12 contrast to the mutual funds and ETFs, for whom the securities lending services "have been 13 negotiated a la carte . . . ." (Id. at 4-5.) Defendants also point to structural differences, including 14 "distinct services arrangements, compensation arrangements, reporting requirements, lending 15 strategies, and management style," as well as "a distinct regulatory framework." (Id.) 16 The Court disagrees. First, the Court finds that it does not appear the 50% securities 17 lending fee was a "bundled set of fees" that included both securities lending and investment 18 management services. In Defendants' motion to dismiss, Defendants' argument was based on the 19 CTIs paying a securities lending fee that was separate from investment management fees, stating: 20 "[t]he Plan's payment of only securities lending compensation, with no investment management 21 fees, is self-evidently reasonable." (Dkt. No. 79 at 21 (emphasis added).) Defendants also filed a 22 declaration by Mr. Matthew Soifer, who oversees the negotiation of agreements by which 23 sponsors of large plans invest in collective trust funds, stating: "Almost all of the [sponsors] that 24 invest in the Lending [collective trust funds] invest pursuant to an agreement which provides that 25 BTC shall receive both an investment management fee and 50% of securities lending income 26 associated with the investment." (Dkt. No. 79-19 ¶ 5 (emphasis added).) Likewise, the "16 27 28 3 1 Things You Should Know" document2 explains that the income earned from securities lending 2 transactions are divided equally between Defendant BTC and the CTIs, and that "[t]he income 3 divided is net of cash collateral management fees and the accrued borrower rebate fees." (Dkt. 4 No. 125, Exh. 3 at BAIRD_046154.) All of this demonstrates that, contrary to Defendants' claim, 5 the CTIs do not pay a single integrated fee for investment management and securities lending 6 services, and that the 50% securities lending fee is for the securities lending service only. This 7 was confirmed at the hearing, in which Defendants primarily argued that there was an integrated 8 offering of the services, but that the amount of the securities lending fee itself was 50%. Second, with respect to the argument about structural differences between the CTIs and the 9 mutual funds and ETFs, Defendants fail to adequately explain why these structural differences 11 United States District Court Northern District of California 10 would result in a difference between the amounts charged for the same securities lending services. 12 Although Defendants point to White v. Chevron Corp., Case No. 16-cv-793-PJH, 2016 WL 13 4502808 (N.D. Cal. Aug. 29, 2016), the Court finds this case distinguishable. There, the plaintiffs 14 alleged that the fiduciaries offered mutual funds with fees that could have been reduced by using 15 alternative investments like collective trusts. 2016 WL 4502808, at *8. The district court rejected 16 this claim, explaining that these different investment vehicles could not be compared solely by 17 cost because they had different essential features, including regulatory and transparency features. 18 Id. at *12. In other words, while it was true that the fiduciaries could have offered collective trusts 19 with lower management fees, this would have been at the expense of other substantive features 20 that warranted the higher fees. Here, in contrast, Defendants do not identify any structural 21 difference that would warrant the CTIs charging a higher securities lending fee than the mutual 22 funds and ETFs. 23 2 24 25 26 27 28 The "16 Things You Should Know" document was provided in response to the Court's request for additional documents, despite the Court not requesting the document. (See Dkt. No. 124 at 1; Dkt. No. 125.) The Court had only requested BAIRD 429-436 and excerpts of the STIF Guidelines related to Discovery Letter No. 5. (Dkt. No. 124 at 1.) Plaintiffs request that the Court not consider these documents. (Dkt. No. 126.) The Court agrees that submission of the documents not requested by the Court was inappropriate, and that the Court would be within its authority not to consider these improper submissions. Nevertheless, the Court has reviewed the documents, and will cite to them accordingly. In the future, however, the Court will not consider any documents that are not properly before it. 4 Glass Dimensions, Inc. v. State Street Bank & Trust Co., 931 F. Supp. 2d 296 (D. Mass. 1 2 2013), is instructive. There, the plaintiff asserted that the defendants breached their fiduciary duty 3 when it appointed itself as a lending agent and set its securities lending fee at 50%. Id. at 302. 4 The plaintiff argued that damages should be measured as the difference between the 50% 5 securities lending fee charged by the defendant to the plaintiff, and the securities lending fee 6 charged by the defendant to other clients during the same period. Id. at 307. The plaintiff argued 7 that the defendants' other clients were comparable because "the fees [the defendant] charged these 8 other clients were for the same service (securities lending) from the same service provider . . . 9 during the same service time period . . . as the 50% fee at issue in this case." Id. The plaintiff also argued that the only significant distinguishing factor was how the fees were negotiated. Id. The 11 United States District Court Northern District of California 10 district court ultimately agreed that the other clients could provide a proper point of comparison.3 12 The Court finds that the fees charged by the CTIs are comparable to those charged by the 13 mutual funds and ETFs, making the discovery sought relevant. Here, as in Glass Dimensions, 14 Plaintiffs seek to compare the fees charged by the CTIs with the fees charged by the mutual funds 15 and ETFs for the same securities lending service, which was provided by the same agent, 16 Defendant BTC. (Dkt. No. 114 at 3.) Moreover, Plaintiffs assert -- and Defendants do not dispute 17 -- "that the same group of BlackRock employees provide [sic] lending services to all BlackRock 18 clients whether the client fund is a CTI, a mutual fund, or an ETF," further highlighting the 19 similarities between the services being provided. (Id.) Also, like Glass Dimensions, Plaintiffs 20 here assert that the reason for the difference in the fees charged is because of how the fees were 21 negotiated, as Plaintiffs believe the CTIs were represented by a conflicted fiduciary (Defendant 22 BTC) while the ETFs and mutual funds were represented by a board consisting of a majority of 23 disinterested trustees. (Id. at 1.) In the alternative, Defendants argue that there is no need for discovery because Plaintiffs 24 25 could simply argue that the excessive compensation was the result of Defendant BTC's conflicted 26 3 27 28 Defendants argue that Glass Dimensions, Inc. is not applicable because it concerned damages. (Dkt. No. 114 at 5 fn.4.) While true, this does not change that the court had to first find that the fees charged to the plaintiff and the fees charged to the other clients was comparable in the first place. 5 1 process. (Dkt. No. 114 at 4.) The Court disagrees. Plaintiffs would still need to prove that the 2 difference was because of the conflict, as opposed to some other unrelated reason; for example, 3 Defendants argue that the ETFs have greater bargaining power, which could account for the 4 differences. (See id. at 5.) Therefore, the Court finds that documents sought by Request for 5 Production No. 33 are relevant to Plaintiffs' claims. 6 At the hearing, however, the Court explained that while Plaintiffs were entitled to the 7 discovery sought, there were concerns regarding the breadth of the discovery requests. The Court 8 therefore orders the parties to engage in further meet and confer, so that Plaintiffs can more clearly 9 define what documents they really want from the request, taking into account proportionality and 10 burden. United States District Court Northern District of California 11 B. Joint Discovery Letter No. 2 (Dkt. No. 115) 12 Joint Discovery Letter No. 2 concerns Plaintiff's Request for Production No. 34, which 13 seeks documents concerning the gross and net profits that Defendant BlackRock and its affiliates 14 earn from providing securities lending services to the BlackRock CTIs. (Dkt. No. 115 at 1.) 15 Plaintiffs assert that this goes to whether the fees charged for the securities lending fees are 16 reasonable. (Id. at 2.) Whether the fees are reasonable, in turn, goes to Defendants' argument in 17 their motion to dismiss that the securities lending fee is permitted because it is reasonable 18 compensation under § 408(b)(8). (Dkt. No. 79 at 20-21.) 19 Defendants argue that whether a fee is reasonable is not dependent on the cost of providing 20 the service, but "focuses on whether the market is working. Where independent plan fiduciaries 21 have agreed to a fee structure in the context of a competitive market for the services at issue, the 22 court's inquiry is at [an] end." (Dkt. No. 115 at 4.) Defendants rely on the Best Interest Contract 23 Exemption, which states: 24 27 The reasonableness of the fees depends on the particular facts and circumstances at the time of the recommendation. Several factors inform whether compensation is reasonable including, inter alia, the market pricing of service(s) provided and the underlying asset(s), the scope of monitoring, and the complexity of the product. No single factor is dispositive in determining whether the charges are reasonable in relation to what the investor receives. 28 Best Interest Contract Exemption, 81 Fed. Reg. 21,002, 21,031 (Apr. 8, 2016). Defendants argue 25 26 6 1 that this Exemption does not list profitability. (Dkt. No. 115 at 4.) Defendants also argue that in 2 considering what "reasonable compensation" for a fiduciary is, the Court need only consider "such 3 amount as would ordinarily be paid for like services by like enterprises under like circumstances," 4 relying on 26 C.F.R. § 2550.408c-2. (Id.) The Court disagrees with Defendants' assertion that the cost of the service is not relevant to 6 whether compensation is reasonable. Courts have explicitly found that the cost of a service can be 7 a factor in determining whether a fee is reasonable. The Second Circuit has looked to the 8 profitability of the fund to the adviser-manager in determining whether compensation is 9 reasonable or in violation of a fiduciary duty. Krinsk v. Fund Asset Mgmt., Inc., 875 F.2d 404, 10 409 (2d Cir. 1989) (articulating six-factor test for determining if a fee is so disproportionately 11 United States District Court Northern District of California 5 large that it bears no reasonable relationship to the services rendered, including "the profitability 12 of the fund to the adviser-manager"); Young v. GM Inv. Mgmt. Corp., 325 Fed. Appx. 31, 33 (2d 13 Cir. 2009) (citing to Krinsk's six-factor test to determining whether excessive fees violated 14 ERISA). Other courts have also found that reasonable compensation depends on the costs of the 15 service in determining "reasonable compensation" under § 408(b)(2), which concerns contracting 16 or making reasonable arrangements with a party in interest for services necessary for the 17 establishment or operation of a plan.4 See Solis v. Current Dev. Corp., 557 F.3d 772, 779 (7th Cir. 18 2009) ("The statute requires that the services . . . cost no more than what's reasonable"); Chao v. 19 Malkani, 216 F. Supp. 2d 505, 515 (D. Md. 2002) ("without any evidence of the services actually 20 provided, or of the actual cost of those services, the defendants cannot show that the compensation 21 requested was 'reasonable'"); Engelhart v. CONRAIL, Civil Action No. 92-7056, 1996 WL 22 526726, at *12 (E.D. Penn. Sept. 18, 1996) (in finding that the transaction satisfied § 408(b), 23 noting that the plaintiff "does not challenge the reasonableness of the costs associated with 24 25 26 27 28 4 Although these cases interpret § 408(b)(2), whereas the instant case concerns § 408(b)(8)(B), both subsections use the term "reasonable compensation." "The normal rule of statutory construction" is "that identical words used in different parts of the same act are intended to have the same meaning," and there is nothing in the statute to suggest that Congress intended for this term to have a different meaning between subsections. Dep't of Revenue v. ACF Indus., 510 U.S. 332, 342 (1994) (internal quotations omitted). 7 1 services provided by the Company" and "has offered no evidence which would suggest a genuine 2 issue of material fact as to these matters"). 3 Neither the Best Interest Contract Exemption nor 26 C.F.R. § 2550.408c-2 assist 4 Defendants here. While the Best Interest Contract Exemption does not list profitability as a factor 5 in determining whether the fees are reasonable, the factors listed are not exclusive. See 81 Fed. 6 Reg. 21,002, 21,031 ("Several factors inform whether compensation is reasonable including . . . .") 7 (emphasis added). 26 C.F.R. § 255.408c-2(5), in turn, states that "any compensation which would 8 be considered excessive under 26 CFR 1.162-7 . . . will not be 'reasonable compensation.'" 26 9 C.F.R. 1.162-7 states that "[i]t is, in general, just to assume that reasonable and true compensation is only such amount as would ordinarily be paid for like services by like enterprises under like 11 United States District Court Northern District of California 10 circumstances." 26 C.F.R. § 255.408c-2(5), however, goes on to say that "compensation which is 12 not excessive under 26 CFR 1.162-7 may, nevertheless, not be 'reasonable compensation' . . . ." 13 Thus, 29 C.F.R. § 255.408c-2(5) explicitly acknowledges that compensation that would ordinarily 14 be paid for like services could still be unreasonable. 15 The Court therefore finds that information regarding the cost of the securities lending 16 services provided by BTC is relevant to whether the fees are reasonable. To the extent Defendants 17 assert that they do not perform a profitability analysis and that calculations of gross and net profits 18 do not exist, Defendants are not required to create or produce documents that do not already exist. 19 (Dkt. No. 115 at 5.) Defendants are, however, required to produce the information that does exist. 20 C. Joint Discovery Letter No. 3 (Dkt. No. 116) 21 Joint Discovery Letter No. 3 concerns Defendants' privilege log. The parties dispute 22 whether certain entries should have been produced per the fiduciary exception to attorney-client 23 privilege. (Dkt. No. 116 at 1.) "As applied in the ERISA context, the fiduciary exception 24 provides that an employer acting in the capacity of ERISA fiduciary is disabled from asserting the 25 attorney-client privilege against plan beneficiaries on matters of plan administration." United 26 States v. Mett, 178 F.3d 1058, 1063 (9th Cir. 1999). The Ninth Circuit has found, however, that 27 "the fiduciary exception has its limits." Id. at 1063. "[W]hile the fiduciary exception does apply 28 to advice on matters of plan administration, the attorney-client privilege reasserts itself as to any 8 1 advice that a fiduciary obtains in an effort to protect herself from civil or criminal liability." Id. at 2 1066. Such is the case even if the advice relates to plan administration. See id. at 1064-65 3 (rejecting argument that the fiduciary exception applies "whenever otherwise privileged legal 4 advice 'relates to' fiduciary matters"). 5 First, Plaintiffs challenge Entry Nos. 3, 5-10, and 19-36. (Dkt. No. 116 at 2.) Plaintiffs 6 argue that the privilege log "descriptions indicate that the communications concern plan 7 administration, and not the fiduciaries' personal liability." (Id.) Plaintiffs, however, focus solely 8 on whether the description concerns matters of plan administration or settlor functions that fall 9 outside of the fiduciary exception; Plaintiffs do not acknowledge that each of these entries also state that the legal advice sought "implicat[es] potential fiduciary risk concerns." (Dkt. No. 116-1 11 United States District Court Northern District of California 10 at Nos. 3, 5-10, 19-36.) Thus, while the advice concerns plan administration, it also involves risks 12 to the fiduciaries, therefore falling outside of the fiduciary exception. See Mett, 178 F.3d at 1066. 13 The Court finds these entries were properly withheld. 14 Second, Plaintiffs challenge Entry No. 39, which is "[p]rivileged email . . . from in-house 15 counsel . . . providing legal advice regarding historical approach for allocating expenses to the 16 RSP [("Retirement Savings Plan")]." (Dkt. No. 116 at 2.) The Court conducted an in-camera 17 review of this document. (See Dkt. No. 124.) The Court finds that the documents were not 18 obtained by a fiduciary to protect herself from civil or criminal liability; instead, they are general 19 guidelines concerning when expenses may be charged to the RSP. Entry No. 39 must be 20 produced. 21 Third, Plaintiffs challenge Entry Nos. 17, 43, and 53-55, on the ground that the 22 descriptions "indicate that it may concern fiduciary acts . . . ." (Dkt. No. 116 at 3.) Entry No. 17 23 is described as a "[p]rivileged presentation by outside counsel Joan Disler, Esq. related to 24 fiduciary risk." (Dkt. No. 116-1 at No. 17.) Plaintiffs argue that the fiduciary privilege does not 25 apply because "advice about fiduciary best practices is for the benefit of participants, even if it 26 also intended to prevent the fiduciaries from taking any actions that might expose them to personal 27 liability." (Dkt. No. 116 at 3.) If, however, the advice was obtained to protect the fiduciary from 28 legal liability, the attorney-client privilege attaches even if the advice is related to plan 9 1 administration. See Mett, 178 F.3d at 1066. With respect to Entry Nos. 43 and 53-55, these 2 entries concern "settlor decisions" or a "Plan Amendment," which Plaintiffs do not dispute was a 3 settlor function. (Dkt. No. 116-1 at Nos. 43, 53-55; see also Dkt. No. 116 at 4.) "'Decisions made 4 by a person or entity while acting in its settlor capacity do not trigger ERISA's fiduciary duties.'" 5 Ronches v. Dickerson Empl. Benefits, Case No. CV 09-4279 MMM (PJWx), 2009 WL 10669571, 6 at *11 (C.D. Cal. Oct. 30, 2009) (quoting Reynolds v. Edison Int'l, 238 F.3d 430 (Table), 2000 WL 7 145937, at *1 (9th Cir. Oct. 2, 2000).) Plaintiffs, however, argue that it is not clear if the advice 8 was provided in a settlor capacity or a fiduciary capacity. (Dkt. No. 116 at 3.) The descriptions 9 are clear that the advice concerned settlor functions, and Plaintiffs provide no argument for why the advice about settlor capacity would implicate any fiduciary actions. The Court therefore finds 11 United States District Court Northern District of California 10 that these entries were properly withheld. 12 Finally, Plaintiffs challenge Entry Nos. 1-2 and 61-70, on the ground that it is conclusory 13 that the withheld information is privileged. (Dkt. No. 116 at 3.) Entry Nos. 1-2 both state that 14 they concern requests for legal advice to in-house counsel "regarding potential fiduciary risk 15 concerns." (Dkt. No. 116-1 at Nos. 1-2.) The Court finds this to provide sufficient information to 16 show that the fiduciary exception does not apply, and that these entries were properly withheld. 17 Entry No. 61 states that it is a "Privileged calendar invitation to meeting with outside counsel . . . 18 and in-house counsel teams," while Entry Nos. 62-70 state that they concern "[r]edacted 19 description of privileged legal update from in-house counsel . . . ." (Dkt. No. 116-1 at Nos. 61- 20 70.) The Court conducted an in-camera review of these documents. (See Dkt. No. 124.) The 21 Court finds that these documents do not concern legal advice; instead, they are brief descriptions 22 of the general topic that in-house counsel will be providing at an upcoming meeting. The redacted 23 information does not describe what the legal advice is. Therefore, Entry Nos. 61-70 must be 24 produced. 25 D. 26 Joint Discovery Letter No. 4 concerns Defendants' Request for Production Nos. 12-14, Joint Discovery Letter No. 4 (Dkt. No. 117) 27 which seek discovery related to Plaintiff's typicality and adequacy as class representatives. (Dkt. 28 No. 117 at 1.) Plaintiffs have identified three non-privileged documents that are "arguably 10 1 responsive" to Defendants' Requests, but refuse to produce them because they are "not relevant." 2 (Id. at 3.) Plaintiffs further argue that production of these documents could "unreasonably expose 3 Plaintiffs to embarrassment and harassment," citing to cases that prohibited forensic imaging of a 4 party's electronic devices. The documents must be produced. Plaintiffs admit that the documents are responsive to 5 6 Defendants' requests, and they do not argue in the discovery letter that Defendants' requests seek 7 irrelevant information.5 It is therefore not clear why the responsive documents would not have 8 some relevance as well. Further, the production of three documents is significantly lower than the 9 forensic imaging of a party's electronic device, the latter of which would involve a multitude of 10 documents that would be completely immaterial to the instant case. United States District Court Northern District of California 11 E. Joint Discovery Letter No. 5 (Dkt. No. 119) 12 Finally, Joint Discovery Letter No. 5 concerns Plaintiffs' Request for Production No. 20, 13 which seeks documents concerning the investment of securities lending cash collateral for the 14 BlackRock CTIs. (Dkt. No. 119 at 1.) Again, securities lending is the practice where securities 15 owned by the fund are lent to the borrower in exchange for collateral, which in turn is held in 16 interest-bearing Short Term Investment Funds ("STIFs") to generate additional revenue for the 17 CTIs. (Id.) Here, Plaintiffs are seeking two categories of information: (1) documents and 18 communications concerning how the STIFs were selected, and (2) documents and 19 communications regarding how the investments in the STIFs' portfolios were monitored and 20 selected. (Id. at 2.) First, with respect to the selection of STIFs, Plaintiffs argue that such information is 21 22 relevant because Plaintiffs have alleged that Defendant BTC improperly invested all of the 23 collateral in its own proprietary STIFs, which were substantially more expensive than similar 24 25 26 27 28 5 Plaintiffs cite to In re: Coca-cola Products Marketing and Sales Practices Litigation (No. II), Case No. 14-md-2555-JSW (MEJ), 2016 WL 6245899 (N.D. Cal. Oct. 26, 2016), for the proposition that documents that were responsive to the party's request could include irrelevant communications and other information completely unrelated to the claims at issue. (Dkt. No. 117 at 4.) There, however, the district court explained that the requests themselves were so broad that a response could include irrelevant information. In re: Coca-cola, 2016 WL 6245899, at *5. Plaintiffs make no argument here that the requests at issue are similarly broad. 11 1 funds. (Dkt. No. 119 at 2; FAC ¶¶ 268-270.) By only selecting their own proprietary STIFs, 2 Defendant BTC reduced the returns the CTIs would earn through investing activities, passed along 3 securities lending risks to the CTIs, and exposed the CTIs to excessive risk and deteriorated 4 collateral value with high fees. (FAC ¶ 274.) Defendants respond that Defendant "BTC invests 5 the securities lending cash collateral in the BTC-managed STIFs at client direction, according to 6 fees, investment objectives, and risk guidelines set forth in the governing documents for the 7 BlackRock CTIs." (Dkt. No. 119 at 4.) In other words, Defendants assert that it is the "client[ 8 who] instruct[s] BTC to invest securities lending cash collateral in the BTC-managed STIFs." 9 (Id.) 10 The Court disagrees. While the governing documents describe general objectives and United States District Court Northern District of California 11 guidelines, they do not require that Defendant BTC only invest the collateral in BTC-proprietary 12 STIFs. Indeed, in the Short-Term Investment Funds Overview and Guidelines, the document 13 describes the investment objectives and eligible investments, and states that "[t]he fund may invest 14 directly in other STIFs managed by BTC." (Dkt. No. 125, Exh. B at BAIRD_0071404, 71406, 15 71407, 71408, 71409 (emphasis added).) Likewise, the "16 Things You Should Know" document 16 states that "Funds that engage in securities lending may invest cash collateral received from the 17 borrowers in a series of Funds managed by BTC." (Dkt. No. 125, Exh. C at BAIRD_0046148 18 (emphasis added).) Such language is permissive, not mandatory. Furthermore, within these 19 guidelines -- which again, do not require that Defendant BTC only invest in BTC-proprietary 20 STIFs -- the manager "is granted full discretionary investment authority to invest the Account," 21 demonstrating that Defendant BTC had discretion in how to investment the cash collateral. (Dkt. 22 No. 125, Exh. D at BAIRD_0000347.) The fact that the manager may not have unfettered 23 discretion does not mean there was no discretion; Defendant BTC was able to invest the collateral 24 pursuant to general guidelines, and allegedly chose to invest solely in BTC-proprietary STIFs. 25 Thus, Defendants have not shown that Defendant BTC only invested in BTC-proprietary STIFs at 26 client direction, and information on how Defendant BTC selected the STIFs is relevant to 27 Plaintiffs' claims regarding Defendants' alleged breach of their fiduciary duties. 28 Second, as to the selection and monitoring of the STIFs' investments, Plaintiffs argue that 12 1 this information is relevant because Plaintiffs have "allege[d] that BTC engages in impermissible 2 self-dealing and fiduciary breaches by taking excessive risk with the 'synthetic STIFs' which hold 3 complex, sub-prime investments," and that Defendant BTC deliberately chose "high-risk/high- 4 reward investments to maximize BTC's securities lending fees while passing all the risk of loss on 5 to the CTI Class." (Dkt. No. 119 at 3.) Defendants respond that this information is irrelevant 6 because Plaintiffs have not pled a theory that the STIFs were imprudently managed or unduly 7 risky. (Id. at 4-5.) 8 9 The Court finds that Plaintiffs have sufficiently alleged that the "synthetic STIFs" were risky investments, and that those investments caused losses to Plaintiffs. Specifically, in the amended complaint, Plaintiff alleges that Defendant BTC invested a substantial amount of cash 11 United States District Court Northern District of California 10 collateral into the "synthetic STIF," which "is more expensive than the traditional STIF and 12 permits investments in riskier assets than the traditional STIF . . . ." (FAC ¶ 277.) Plaintiffs also 13 allege that Defendant BTC's decision to invest in these riskier synthetic STIFs "have a material 14 impact on the growth of the retirement plan assets invested in the BlackRock CTIs." (FAC ¶ 279.) 15 Moreover, how these synthetic STIFs were managed is relevant to show that the synthetic STIFs 16 were, in fact, riskier than other STIFs, and whether the decisions caused the losses alleged. 17 In the alternative, Defendants argue that Plaintiffs "never identified the particular 18 investments they believe to be imprudent, the dates of those investments, the associated losses, the 19 available alternatives, or any other circumstantial details about Defendants' purported 20 'imprudence.'" (Dkt. No. 119 at 5.) Defendants, however, cite no authority that would require this 21 level of detail in order to obtain discovery. Defendants also argue that they cannot conduct a 22 search based on conclusory assertions of "mismanagement," but Plaintiffs' discovery request is not 23 limited to such matters; Plaintiffs seek documents regarding the management of the STIFs, 24 specifically the selection and monitoring of the investments, in order to show that they were 25 mismanaged. 26 The Court concludes that the requested discovery is permissible. The Court will, however, 27 limit the discovery of how the STIFs' investments were selected and monitored to the synthetic 28 STIFs only, as Plaintiffs have only alleged that there was undue risk as to those particular STIFs. 13 1 (See FAC ¶ 277.) Otherwise, Plaintiffs' allegations regarding the investment in BTC-proprietary 2 STIFs are concerned with the expenses charged, not the specific investments chosen by the non- 3 synthetic STIFs.6 (See FAC ¶¶ 267-272.) 4 IV. CONCLUSION 5 The Court will require production of the following discovery: 6 (1) 7 All responsive documents to Plaintiffs' Request for Production No. 34, to the extent such documents already exist; 8 (2) Privilege log Entry Nos. 39 and 61-70; 9 (3) The three non-privileged documents in response to Defendants' Request for 10 Production Nos. 12-14; and (4) United States District Court Northern District of California 11 12 All responsive documents to Plaintiffs' Request for Production No. 20, excluding documents concerning the selection and monitoring of investments in non-synthetic STIFs. As to Plaintiffs' Request for Production No. 33, the parties are ordered to meet and confer 13 14 (preferably in person) to narrow the request, taking into consideration both proportionality and the 15 Court's finding that the documents requested are relevant to Plaintiffs' case. If the parties are 16 unable to reach an agreement regarding the scope of the document production, the parties shall file 17 another joint letter (not to exceed five pages) explaining each issue remaining in dispute, each 18 party's final substantive position, and final proposed compromise on each issue, including relevant 19 legal authority. (Judge Westmore Standing Order ¶ 13(c).) IT IS SO ORDERED. 20 21 Dated: July 20, 2018 __________________________________ KANDIS A. WESTMORE United States Magistrate Judge 22 23 24 25 26 27 28 6 At the hearing, Plaintiffs argued that it had put Defendants on notice that all of the STIFs were risky. The Court disagrees. The operative complaint focuses on the risks of the synthetic STIFs, and further distinguishes the synthetic STIFs from BTC's other STIFs by alleging that "BTC has directed substantially more assets into its Synthetic STIFs than it has directed into its cheaper, traditional STIFs." (FAC ¶ 278.) 14

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