Kurtz v. Vail Corporation, The

Filing 70

ORDER granting 34 Motion to Dismiss by Judge R. Brooke Jackson on 1/6/21.(jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No. 1:20-cv-00500-RBJ
DEBRA KURTZ, individually, and as representative of a Class of Participants and Beneficiaries,
on Behalf of the Vail Resorts 401(k) Retirement Plan,
Plaintiff,
v.
THE VAIL CORPORATION,
Defendant.

ORDER ON DEFENDANT’S MOTION TO DISMISS

This matter is before the Court on defendant’s motion to dismiss. ECF No. 34. For the
reasons discussed below, defendant’s motion is GRANTED.
I. FACTUAL BACKGROUND
The following facts are alleged by plaintiff in her Amended Complaint, ECF No. 30, and
are assumed to be true for purposes of the pending motion. Plaintiff Debra Kurtz is a resident of
New York state and a former employee of defendant Vail Corporation. Id. at ¶11. Defendant
Vail Corporation (“Vail”), which also does business as Vail Associates, Inc., is a Colorado
corporation with its headquarters in Broomfield, Colorado. Vail is the sponsor of the Vail
Resorts 401(k) Retirement Plan (“the Plan”). Id. at ¶14. Plaintiff participated in the Plan while
employed at Vail. Id. at ¶11.
Plaintiff brings her case as a putative class action under the Employment Retirement
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Income Security Act of 1974 (“ERISA”). Plaintiff seeks to certify a class for a period that
begins six years before the commencement of this action, i.e. February 4, 2016, and ends on the
date of judgment. Id. at ¶¶4, 63. Plaintiff alleges that the Plan is a “defined contribution” plan
that falls under 29 U.S.C. §§ 1102(2)(A) and 1002(34) of ERISA, and that defendant Vail is a
fiduciary with authority over and responsibility for the control, management, and administration
of the Plan under 29 U.S.C. § 1102(a). Id. at ¶¶15–16. In a defined contribution plan the
fiduciary manages the overall plan and has exclusive control over the menu of investment
options available to participants. Id. at ¶50. Participants choose which investments to make
among those options. Both participants and the employer make contributions. The value of
participants’ investments is determined by market performance of the contributions minus
expenses, and thus the ultimate benefit participants derive from the plan fluctuates (unlike in a
defined benefit plan in which the benefits are fixed). Id. at ¶¶15–16.
Since at least 2013 the Plan had more than 5,000 participants and over $170 million in
assets entrusted to the care of defendant as fiduciary. At the end of 2018, the Plan had 8,276
participants and over $309 million in assets. The Plan offered twenty-seven investment choices
to its participants. Id. at ¶26.
Plaintiff first alleges that the Plan’s fees were excessive compared to other comparable
401(k) plans that had similar numbers of participants and similar amounts of assets. The Plan
charged participants fees that were 90 percent more than comparable plans. For example, in
2017 the Plan charged $271 per participant, or 0.63% of assets under management, compared to
a mean of $179 per participant, or 0.2% of assets under management, across nineteen comparator
plans that had 5,000 to 10,000 participants. The mean fees for a group of twenty-one comparator
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plans with an asset range between $250 and $500 million was 0.43% of assets under
management. Id. at ¶¶27, 32.
Plaintiff next alleges that the Plan paid unreasonably high fees for investments when less
expensive, better performing investments were available. The investment options available to
Vail’s Plan participants were typically mutual funds. Id. at ¶33. Many mutual funds offer
different “classes” of shares in a single mutual fund that are more or less expensive. More
expensive shares are generally targeted towards smaller investors that have fewer assets and thus
less bargaining power, whereas less expensive shares are targeted towards larger investors with
more assets and thus more bargaining power. Despite the difference in cost, the share classes are
otherwise identical, as they hold identical investments and have the same manager. Id.
As of December 31, 2018, the Plan offered participants share classes from twenty-seven
investments in which they could invest. Plaintiff compared the Plan’s investment options to
other investment class shares it could have offered based on “expense ratios,” which express
each option’s fees as a percentage of assets under management. Id. at ¶36. Plaintiff claims that
defendant’s Plan was sufficiently large—in terms of assets—that it could invest in the cheapest
share classes available, but that instead defendant offered share classes that were more
expensive. Specifically, investment management firm T. Rowe Price offered fifteen of the
twenty-seven investment options of the Plan. It offered different share classes that charged
lower fees and had better rates of return than the share classes that defendant selected for
inclusion in the Plan options. Defendant was large enough to qualify for these cheaper share
classes, and thus could have, but did not, offer them to Plan participants. Plaintiff alleges that as
a result of these choices, participants necessarily paid higher costs and received lower returns for
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their investments. Id. at ¶¶36, 38–39.
Plaintiff’s third allegation is that defendant failed to offer lower cost passively managed
funds to participants. According to plaintiff, higher cost mutual funds rarely outperform less
expensive passively managed mutual funds over the long term. Id. at ¶¶41–42. Plaintiff again
compared the Plan’s actual options with potential alternative options. She asserts that the
expense ratios of the Plan’s options were more expensive compared to comparable passively
managed and actively managed funds of the same investment type. In many of the examples
plaintiff gives, all of which compare T. Rowe Price options to Vanguard options, the expense
ratio of the Plan’s option is three times as high as that of the comparable option. Id. at ¶43–44.
Plaintiff also asserts that defendant’s selection of actively managed investment options over
passively managed options was unjustifiable. This is because the actively managed funds (which
defendant offered as options) usually significantly underperformed, and never significantly
outperformed, the passively managed alternatives. Id. at ¶45.
Plan participants paid the investment offerings’ fees. However, Vail had a responsibility
as the Plan’s fiduciary to ensure these fees were reasonable. Id. at ¶49. Plaintiff alleges that
together, the various decisions defendant made regarding what investment options to offer led to
a selection of options that had higher fees and costs. In a defined contribution plan such as this
one, a participant’s benefits at retirement are the value of their own investment accounts minus
expenses, and thus high or unreasonable fees impair the value of the participant’s investment
benefits. Plaintiff thus contends that defendant’s decisions as fiduciary of the Plan cost
participants millions of dollars of their retirement savings. Id. at ¶¶46–47, 50–51.
At the time she was a participant in the Plan plaintiff did not know how defendant
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selected investment options, nor whether or how defendant monitored the options for prudence,
as it was required to do so as a fiduciary. She also had no knowledge of how the Plan’s options
compared to other lower-fee or better-performing investment options not offered through the
Plan. Id. at ¶48.
II. PROCEDURAL BACKGROUND
Plaintiff Debra Kurtz first filed this case on February 24, 2020. ECF No. 1. She filed an
amended complaint on May 29, 2020. ECF No. 30. In her amended complaint she brought a
single claim for breach of fiduciary duties of loyalty and prudence under 29 U.S.C. §
1104(a)(1)(A)–(B), (D) against defendant Vail Corporation. She brought this case as a class
action. Id. at ¶¶62–81. On July 17, 2020 defendant filed a motion to dismiss. ECF No. 34.
Plaintiff responded on August 6, 2020. ECF No. 36. Defendant replied on August 20, 2020.
ECF No. 39. The motion is thus ripe for review.
III. STANDARDS OF REVIEW
A. Rule 12(b)(1)
A court may dismiss a case for lack of subject matter jurisdiction under Rule 12(b)(1).
Standing is a question of subject matter jurisdiction, and thus a basis for 12(b)(1) dismissal. A
plaintiff has constitutional standing when (1) she has suffered an injury in fact, (2) there is a
causal connection between the injury and the conduct complained of, and (3) it is likely that the
injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555,
559–61. An “injury in fact” is an invasion of a legally protected interest that is concrete,
particularized, and actual or imminent as opposed to conjectural or hypothetical. Id. Although
the plaintiff bears the burden of establishing standing, a court must accept as true all well5

pleaded facts and construe all reasonable allegations in the light most favorable to the plaintiff.
United States v. Colorado Supreme Court, 87 F.3d 1161, 1164 (10th Cir. 1996) (citations
omitted). “At the pleading stage, general factual allegations of injury resulting from the
defendant's conduct may suffice, for on a motion to dismiss we presume that general allegations
embrace those specific facts that are necessary to support the claim.” Id. at 1165 (quoting Lujan,
504 U.S. at 561).
B. Rule 12(b)(6)
To survive a Rule 12(b)(6) motion to dismiss, the complaint must contain “enough facts
to state a claim to relief that is plausible on its face.” Ridge at Red Hawk, L.L.C. v. Schneider,
493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)). A plausible claim is a claim that “allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). While the Court must accept the well-pled allegations of the complaint as true and
construe them in the light most favorable to the plaintiff, Robbins v. Wilkie, 300 F.3d 1208, 1210
(10th Cir. 2002), conclusory allegations are not entitled to be presumed true. Iqbal, 556 U.S. at
681. However, so long as the plaintiff offers sufficient factual allegations such that the right to
relief is raised above the speculative level, he has met the threshold pleading standard. See, e.g.,
Twombly, 550 U.S. at 556; Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008).
If the parties rely on materials found outside the four corners of the complaint, the court
has the discretion to convert a motion to dismiss to one for summary judgment. If it does so the
court must inform the parties and permit them to meet all factual allegations with countervailing
evidence. See FED. R. CIV. P. 12(d); Burnham v. Humphrey Hospitality Reit Trust, Inc., 403 F.3d
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709, 713 (10th Cir. 2005). The court may consider evidence beyond the complaint without
converting a motion to dismiss to one for summary judgment if the documents are central to the
claims, referred to in the complaint, and if the parties do not dispute their authenticity. See Cty.
of Santa Fe, N.M. v. Pub. Serv. Co. of N.M., 311 F.3d 1031, 1035 (10th Cir. 2002).
IV. ANALYSIS
Defendant moves to dismiss this case on two grounds. First, it argues that plaintiff lacks
standing to bring her claim as to any of the Plan’s offered funds in which she did not invest.
Second, defendant argues that plaintiff fails to state a claim under Rule 12(b)(6) for which relief
can be granted. I address each of these arguments in turn.
In its motion defendant refers to documents outside the four corners of the complaint.
These are the Plan’s Form 5500 for 2014; the Plan’s Form 5500 for 2018; the May 2020 T.
Rowe Price Growth Stock Fund Prospectus; and plaintiff’s Plan statement for October through
December 2018. ECF Nos. 35-1, 35-2, 35-3, and 35-4. Plaintiff does not contest the authenticity
of any of these documents. The 2014 and 2018 Form 5500s are government-mandated filings
and publicly available. I may therefore take judicial notice of them without converting this
motion to one for summary judgment. See, e.g. Troudt v. Oracle Corp., No. 116CV00175-REBCBS, 2017 WL 663060, at *4 (D. Colo. Feb. 16, 2017) (taking judicial notice of a Form 5500 for
2014), report and recommendation adopted, No. 116CV00175-REB-CBS, 2017 WL 1100876
(D. Colo. Mar. 22, 2017). I may also consider them because they are documents referred to in
the complaint and central to the plaintiff’s claims. Cty. of Santa Fe, 311 F.3d at 1035; Gee v.
Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). I also take judicial notice of the 2020 T. Rowe
Price Growth Stock Fund Prospectus because it is an SEC filing and a public record. In re
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Oppenheimer Rochester Funds Grp. Sec. Litig., 838 F. Supp. 2d 1148, 1156 (D. Colo. 2012) (“In
securities cases, moreover, a court may take judicial notice of the contents of SEC filings that are
a matter of public record.”). I do not consider or take judicial notice of the remaining document,
as it does not fall under these exceptions.
A. Standing
To bring a suit under ERISA, a plaintiff must show both constitutional standing and a
cause of action (statutory standing) under the ERISA statute. E.g. Am. Psychiatric Ass’n v.
Anthem Health Plans, Inc., 821 F.3d 352, 359 (2d Cir. 2016). Plaintiff argues that she has
standing under 29 U.S.C. §§ 1132(a)(2) and 1109(a), ERISA provisions that establish statutory
standing. Some courts have noted that actions brought under § 1132(a)(2) are derivative in
nature—they focus on the injury to the Plan instead of to the individual Plan participants. E.g.
Tatum v. R.J. Reynolds Tobacco Co., 254 F.R.D. 59, 65 (M.D.N.C. 2008). However, defendant
does not dispute that plaintiff has statutory standing. Instead it asserts that plaintiff lacks
constitutional standing because she cannot meet the injury in fact requirement of Lujan.
Defendant argues that plaintiff only invested in five of the fifteen Plan options that she
challenges. As a result, defendant contends, plaintiff has no standing to challenge the remaining
ten options because she has not alleged a “concrete and particularized” injury in fact. ECF No.
34 at 5–6. Plaintiff focuses her argument on ERISA provisions, contending that she has standing
under 29 U.S.C. § 1132(a)(2). That sections states a “civil action may be brought . . . by a
participant, beneficiary or fiduciary for appropriate relief under section 1109 of this title.” ECF
No. 36 at 6. She asserts that she does not bring independent claims for each of the challenged
funds but instead brings a single claim for mismanagement of the entire Plan.
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The parties cite to a host of conflicting decisions on the issue of whether a plaintiff has
standing to bring claims related to Plan options in which he or she did not invest. There is no
Tenth Circuit authority on point for this issue. After my own review of the case, I conclude that
this case is more similar to ones in which courts have found standing to exist even without
plaintiff investing in each individual option. For example, in Larson v. Allina Health Sys.
plaintiff-participants in a defined-contribution plan sued the fiduciary for breach of its fiduciary
duties. The court held the plaintiffs had standing to sue on behalf of the entire plan and other
participants even though they hadn’t individually invested in each possible fund. 350 F. Supp.
3d 780, 791 (D. Minn. 2018). Larson pointed to Eighth Circuit precedent to support its
conclusion. It relied on Braden, which involved similar breach of fiduciary duty claims.
In Braden, the plaintiff alleged that defendants failed to adequately evaluate the defined
contribution Plan’s investment options, because many of the fund options charged excessive fees
and yet underperformed lower-cost alternatives. Braden v. Wal-Mart Stores, Inc., 588 F.3d 585,
589 (8th Cir. 2009). Defendants argued that plaintiff lacked standing to bring claims for the
entire time period because he only started contributing at a point in time after the starting date
used to define the class. The district court dismissed on this basis. The Eighth Circuit reversed.
The appellate court reasoned that plaintiff had constitutional standing because he alleged actual
injury to his own plan account, and the issue of whether he could represent claims for the time
period prior to his contributions related to his cause of action, not standing. Id. at 591–93.
The Braden court’s reasoning is not directly applicable because here the issue is
plaintiff’s non-investment in certain Plan options, not investment timing. However, Krueger
extended Braden to the issue before this Court. The Krueger plaintiffs alleged that fiduciaries of
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a defined contribution plan selected and retained funds despite their relatively high expenses and
poor performance, selected higher-cost versions of those funds instead of lower-cost versions,
and failed to negotiate a reasonable record-keeping fee. Krueger v. Ameriprise Fin., Inc., 304
F.R.D. 559, 564 (D. Minn. 2014). The court rejected defendants’ argument that plaintiffs lacked
standing to pursue claims in which they did not invest, or in which they did invest but that
outperformed the benchmark. It wrote that “a plaintiff’s standing to sue a plan’s fiduciaries, and
that same plaintiff’s ability to seek relief that goes beyond his own injuries, are separate issues.”
Id. at 567. The court concluded that whether plaintiffs could properly represent class members
whose injuries may be based on funds different than those in which plaintiff invested or suffered
injuries was an issue of class certification, not standing. Id. Here too, I conclude that plaintiff’s
non-investment in certain funds is a class certification question, not a standing one.
Other decisions from the First, Second, Third, Fourth, Eighth, and Ninth, circuits come to
the same conclusion. For example, in Hay the court wrote that “Plaintiff alleges in her complaint
that Defendants mismanaged the Plan by choosing and maintaining Transamerica funds, as well
as 18 other mutual funds, despite there being less costly options, a potential conflict of interest,
better performing investments, and a lack of variety in the offered funds.” Hay v. Gucci Am.,
Inc., No. 2:17-CV-07148, 2018 WL 4815558, at *1 (D.N.J. Oct. 3, 2018). Based on this
mismanagement, the court explained, plaintiff alleged she was subject to excessive fees and
underperformance. The court found that plaintiff had standing because she alleged “an injury
rooted in Defendants’ conduct in managing all the funds as a group.” Id. at *4. Here too,
plaintiff alleges mismanagement of the entire Plan and all its funds through the options it
provided, not breach related to an individual fund or funds. See also Cryer v. Franklin
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Templeton Res., Inc., No. C 16-4265 CW, 2017 WL 4023149, at *4 (N.D. Cal. July 26, 2017)
(holding plaintiff had standing to sue for funds in which he did not invest or that outperformed
because “the lawsuit seeks to restore value to and is therefore brought on behalf of the Plan.”);
McDonald v. Jones, No. 4:16 CV 1346 RWS, 2017 WL 372101, at *2 (E.D. Mo. Jan. 26, 2017)
(citing to Braden and concluding “a plan participant may seek recovery for the plan even where
the participant did not personally invest in every one of the funds that caused an injury to the
plan”); Glass Dimensions, Inc. v. State St. Bank & Tr. Co., 285 F.R.D. 169, 175 (D. Mass. 2012)
(“Plaintiff has established constitutional standing with respect to the 257 funds that it did not
purchase.”); Taylor v. United Techs. Corp., No. 3:06CV1494(WWE), 2008 WL 2333120, at *3
(D. Conn. June 3, 2008) (holding plaintiffs fulfilled standing “[b]ecause a retirement plan is an
aggregation of its participants’ individual accounts” and thus “any loss to the Plan causes a loss
to the Plan’s participants.”); Walsh v. Marsh & McLennan Cos., Inc., No. CIV. JFM-04-0888,
2006 WL 734899, at *1 (D. Md. Feb. 27, 2006) (finding that it did not matter for constitutional
standing that plaintiff did not invest in every fund offered).
Many of the authorities cited by defendant are distinguishable. For example, the court’s
holding in Meridian Funds was based on plaintiff’s non-investment of seven other funds that
were not ERISA funds at all. In re Meridian Funds Grp. Sec. & Employee Ret. Income Sec. Act
(ERISA) Litig., 917 F. Supp. 2d 231, 234 (S.D.N.Y. 2013). But here all of the mentioned funds
are ones that were offered as part of an ERISA Plan. The court in Dezelan ruled that plaintiff
lacked standing for claims related to general accounts, versus a “Separate Account” in which she
invested, because neither she nor the Plan had any relationship to or interest in the general
account funds. Dezelan v. Voya Ret. Ins. & Annuity Co., No. 3:16-CV-1251, 2017 WL 2909714,
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at *6 (D. Conn. July 6, 2017). By contrast, here the Plan has an interest in and relationship to
every fund which it offers as an option.
In Barrett, the only cited case from this jurisdiction, this Court addressed a claim based
on imprudent investment in a specific fund in which plaintiff had never invested. The court
ruled that plaintiff lacked standing because no recovery on that fund would ever inure to him.
Barrett v. Pioneer Nat. Res. USA, Inc., No. 17-CV-1579-WJM-NYW, 2018 WL 3209108, at *1
(D. Colo. June 29, 2018). Notably, the decision found that plaintiff did have standing to bring
his claims regarding excessive fees. In addressing lack of standing for the Money Market Fund
claim, it wrote that the complaint “does not allege that all investment choices or some sensibly
grouped subset were offered imprudently. It alleges only that the Money Market Fund was an
imprudent offering alongside the Retirement Trust.” Id. at *3. Barrett is thus also dissimilar to
this case because plaintiff’s claims are about the Plan overall or at least, a large subset of offered
funds, not a single fund. Recovery here would inure to plaintiff, unlike in Barrett.
Defendant does cite to a few decisions in which courts held that plaintiffs lacked standing
on facts similar to those here. See Patterson v. Morgan Stanley, No. 16-CV-6568 (RJS), 2019
WL 4934834, at *1 (S.D.N.Y. Oct. 7, 2019); Wilcox v. Georgetown Univ., No. CV 18-422
(RMC), 2019 WL 132281, at *1 (D.D.C. Jan. 8, 2019); Marshall v. Northrop Grumman Corp.,
No. CV 16-06794 AB (JCX), 2017 WL 2930839, at *8 (C.D. Cal. Jan. 30, 2017); In re UBS
Erisa Litig., No. 08-CV-6696 RJS, 2014 WL 4812387, at *6 (S.D.N.Y. Sept. 29, 2014), aff’d sub
nom. Taveras v. UBS AG, 612 F. App’x 27 (2d Cir. 2015). Nonetheless, I find that the bulk of
authority supports plaintiff’s position.
Defendant also relies on a 2020 Supreme Court case, Thole v. U.S. Bank N.A., for its
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standing argument. 140 S. Ct. 1615 (2020). In Thole the plaintiffs sued for fiduciary
mismanagement of a plan under ERISA. The court held that plaintiffs lacked Article III standing
because, regardless of whether plaintiffs lost or won the suit, their monthly payments from the
plan would not change one penny. As a result, plaintiffs had suffered no concrete injury. Id. at
1619. Defendants contend this case applies directly to the facts before this Court. But the Plan
here is a defined contribution plan, not a defined benefits plan. The Supreme Court explained
that it was of “decisive importance” that plaintiffs were participants in a defined-benefit plan
where payments do not fluctuate based on fiduciaries’ good or bad investment decisions. In
addressing plaintiffs’ argument it stated that “[t]he basic flaw in the plaintiffs’ trust-based theory
of standing is that the participants in a defined-benefit plan are not similarly situated to the
beneficiaries of a private trust or to the participants in a defined-contribution plan.” Id.
By contrast, if plaintiff were to win her suit here, monthly payments from the Plan would
change because the Plan participants’ benefits are not fixed. Mismanagement of the Plan by
defendant—which is what plaintiff alleges—shaped the investment options available to Plan
participants and the fee amounts by which investment values were reduced. These changes
purportedly reduced retirement funds available through the Plan to plaintiff, suggesting an actual
injury. Relatedly, a change in Plan management by defendant could increase the value of any or
all of the Plan’s fund options among which plaintiff chose, and thus increased returns would
inure first to the Plan and then indirectly to plaintiff. This is exactly the type of plan the
Supreme Court distinguished from in its holding in Thole, and therefore Thole does not control.
I conclude that plaintiff has both statutory and constitutional standing to bring this suit
against defendant for alleged breach of fiduciary duties under ERISA. However, because I find
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below that her claim fails under Rule 12(b)(6), this issue is ultimately irrelevant.
B. Rule 12(b)(6)
In addition to its argument on standing, defendant contends that the case should be
dismissed because plaintiff does not allege sufficient facts to meet the pleading requirements of
Rule 12(b)(6). Plaintiff brings a single claim in her amended complaint: breach of the duties of
loyalty and prudence under 29 U.S.C. § 1104(a)(1)(A)–(B), (D). ECF No. 30 at ¶¶74–81.
Plaintiff alleges that the Vail Resorts 401(k) Retirement Plan constitutes a plan covered
by ERISA under 29 U.S.C. § 1002(21)(A). ECF No. 30 at ¶4. Defendant does not contest this.
See generally ECF Nos. 34, 39. Nor does Vail contest that it is a fiduciary as defined by ERISA
under 29 U.S.C. §§ 1002(21) or 1102(a)(1). ECF Nos. 34, 39. Instead, defendant argues that
plaintiff’s complaint fails to allege facts sufficient to constitute a breach of its fiduciary duties
under ERISA.
ERISA imposes strict standards of duty and loyalty on fiduciaries of ERISA Plans.
Section 1104(a)(1) provides in relevant part:
[A] fiduciary shall discharge his duties with respect to a plan solely in the interest of the
participants and beneficiaries and –
(A) for the exclusive purpose of:
(i) providing benefits to participants and their beneficiaries; and
(ii) defraying reasonable expenses of administering the plan;
(B) with the care, skill, prudence, and diligence under the circumstances then prevailing
that a prudent man acting in a like capacity and familiar with such matters would use in
the conduct of an enterprise of like character and with like aims. . . .
Section 1109(a) provides in relevant part:
Any person who is a fiduciary with respect to a plan who breaches any of the
responsibilities, obligations or duties imposed upon by fiduciaries by this subchapter shall
be personally liable to make good to such plan any losses to the plan resulting from each
such breach, and to restore to such plan any profits of such fiduciary which have been
made through use of assets of the plan by the fiduciary, and shall be subject to such other
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equitable or remedial relief as the court may deem appropriate, including removal of such
fiduciary. . . .
Furthermore, “[a] civil action may be brought . . . by a participant, beneficiary or fiduciary for
appropriate relief under section 1109 of [ERISA] . . . .” 29 U.S.C. § 1132(a)(2).
Plaintiff brings a putative class action as a participant on behalf of herself and other
participants against Vail. “To properly assert an ERISA claim for breach of fiduciary duty under
29 U.S.C. § 1104(a)(1), a plaintiff must allege facts that plausibly demonstrate that: (1) the
defendant was a plan fiduciary, (2) the defendant breached its fiduciary duty, and (3) that the
breach resulted in harm to the plaintiff.” Troudt, 2017 WL 663060, at *4. See also Larson, 350
F. Supp. 3d at 793. Though plaintiff lumps the duties of loyalty and prudence together in her
complaint, both defendant and plaintiff address them separately in their briefs. I therefore
address them separately as well.
1. Breach of duty of prudence
Under ERISA a “prudent” fiduciary must act “with the care, skill, prudence, and
diligence under the circumstances then prevailing that a prudent man acting in a like capacity
and familiar with such matters would use in the conduct of an enterprise of a like character and
with like aims.” 29 U.S.C. § 1104(a)(1)(B). The fiduciary must also act “in accordance with the
documents and instruments governing the plan” insofar as those directives are consistent with
ERISA’s other requirements. 29 U.S.C. § 1104(a)(1)(D). Fiduciaries have “a continuing duty to
monitor investments and remove imprudent ones . . . .” Tibble v. Edison Int’l, 135 S. Ct. 1823,
1828 (2015).
As another judge in this district has written, to establish a claim for breach of the duty of
prudence a plaintiff must allege that a fiduciary’s “investment decisions—in the conditions
15

prevailing at the time, and without the benefit of hindsight—are such that a reasonably prudent
fiduciary would not have made that decision as part of a prudent, whole-portfolio, investment
strategy that properly balances risk and reward, as well as short-term and long-term
performance.” Birse v. CenturyLink, Inc, No. 17-CV-02872-CMA-NYW, 2019 WL 1292861, at
*3 (D. Colo. Mar. 20, 2019) (citing Pension Benefit Guard Corp. v. Morgan Stanley Inv. Mgmt.
Inc., 712 F.3d 705, 716 (2d Cir. 2013)). As long as a fiduciary meets the prudent person
standard, ERISA does not impose a “duty to take any particular course of action if another
approach seems preferable.” Diduck v. Kaszycki & Sons Contractors, Inc., 874 F.2d 912, 917
(2d Cir. 1989).
Instead, a plaintiff must show that a more prudent Plan management process would have
avoided the alleged harm, which “necessarily require[s] a plausible allegation explaining how no
reasonable fiduciary could conclude that removing such investments would not be likely to do
more harm than good to the plan and its participants.” In re SunEdison, Inc. ERISA Litig., No.
16-MC-2744(PKC), 2018 WL 3733946, at *8 (S.D.N.Y. Aug. 6, 2018) (citations omitted). In
essence, this requires alleging facts that plausibly establish that no reasonable fiduciary would
have retained a set of investments had the fiduciary engaged in proper monitoring, and that
abandoning the investments could have presented the plans losses. Kopp v. Klein, 894 F.3d 214,
221 (5th Cir. 2018). It is not sufficient to simply allege that an investment did poorly, and,
therefore, a plaintiff was harmed—relative underperformance is insufficient to state a claim.
Importantly, “the prudence test—the Prudent Man Rule—is one of conduct, and not a test
of the result of performance of the investment.” Donovan v. Cunningham, 716 F.2d 1455, 1467
(5th Cir. 1983); accord Bunch v. W.R. Grace & Co., 555 F.3d 1, 7 (1st Cir. 2009); Pension
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Benefit Guar. Corp. ex rel. St. Vincent v. Morgan Stanley Inv. Mgmt., 712 F.3d 705, 716 (2nd
Cir. 2012) (noting the standard focuses on a fiduciary’s conduct, not investment results, and asks
“whether a fiduciary employed the appropriate methods to investigate and determine the merits
of a particular investment.”). Courts therefore focus on the process the fiduciary uses rather than
the outcome of the Plan or investments. Id. However, plaintiffs may face challenges in
gathering information about a fiduciary’s procedure before discovery. Thus, courts have
recognized that even when the alleged facts do not specifically address the process by which a
Plan is managed, a fiduciary breach claim may still survive a motion to dismiss if the court can
reasonably infer from circumstantial factual allegations that the process was flawed. Pension
Ben. Guar. Corp. ex rel. St. Vincent Catholic Med. Centers Ret. Plan v. Morgan Stanley Inv.
Mgmt. Inc., 712 F.3d 705, 718 (2d Cir. 2013); Braden, 588 F.3d at 596.
Much of plaintiff’s complaint is taken up by statements explaining what ERISA requires,
or providing generic background about performance of different types of investment funds. ECF
No. 30 at ¶¶1–2, 18–25, 30–31, 33–35, 40–42, 50–55, 57–58. The deceptively long complaint
can thus be boiled down to a few factual allegations.
The first allegation is that in 2018, for fifteen of the twenty-seven Plan fund options, the
issuer T. Rowe Price offered different share classes with lower fees and better rates of return. Id.
at ¶36, 38–39. Plaintiff alleges that these cheaper share classes were offered in earlier years as
well. Id. Second, plaintiff alleges that in 2019, fourteen T. Rowe Price fund options were more
expensive “by multiples” than comparable passively and actively managed funds from
Vanguard. Id. at ¶43. Plaintiff contends this is true for all years of the putative class period. Id.
at ¶44. Third, plaintiff alleges that as of May 2020 eight of the T. Rowe Price funds were
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outperformed by comparable Vanguard funds. Id. at ¶45. The complaint also states that “the
Plan’s fiduciaries cannot justify selecting actively managed funds over passively managed ones.”
Id. Fourth, plaintiff alleges that in 2017 fees charged to Plan participants were higher than fees
charged in ninety percent of comparator plans. Id. at ¶32. Plaintiff also states that
“[c]omparisons in prior years show similar variances” with Vail’s Plan being more costly. Id.
Defendant’s motion asserts that plaintiff has failed to plead sufficient facts to surpass the
12(b)(6) standard. I agree. While certainly specific, plaintiff’s allegations are insufficient to
support a claim for breach of fiduciary duty. Nowhere in the complaint does plaintiff allege
anything imprudent about defendant’s process. In fact, it does not address at all Vail’s process
for selecting or retaining fund options, monitoring expenses, or managing the overall Plan. Nor
does it provide any factual allegations regarding whether defendant employed the appropriate
methods to investigate and determine the merits of any investments. The allegations related to
three-year investment returns depend on hindsight and say nothing about the information
defendant had available to it at the time it was making decisions regarding the Plan.
Plaintiff thus asks this Court to infer that defendant acted imprudently as a fiduciary
based on circumstantial allegations that the Plan did not offer the lowest-share class for certain
funds, and that certain funds were more expensive than alternatives. See e.g. Pension Ben. Guar.
Corp., 712 F.3d at 718. But I cannot infer from plaintiff’s allegations that defendant imprudently
managed the Plan. Plaintiff points to fifteen funds that she alleges are more expensive than
possible alternatives, but there are an additional twelve she takes no issue with at all. She does
not claim that all of the funds offered were too expensive or poorly-performing. A Plan
fiduciary is tasked with a “whole-portfolio, investment strategy that properly balances risk and
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reward, as well as short-term and long-term performance.” Birse, 2019 WL 1292861, at *3.
That mandate will naturally involve selecting funds with a range of return and expense profiles.
A fiduciary is not required to “scour the market to find and offer the cheapest possible fund,” as
there are other factors for which a fiduciary—and a participant—might want to optimize besides
cost. Hecker v. Deere & Co. 556 F.3d 575, 586 (7th Cir. 2009). Finally, plaintiff puts forth no
allegations of self-interested dealing, kickbacks, or inappropriate influence, from which the
Court could more readily derive an inference of fiduciary breach. Thus, while circumstantial
allegations are sometimes enough to survive a motion to dismiss, here they are not.
In comparing this case to others, neither party cites to any Tenth Circuit precedent on
point. Nor have I found any. Instead the parties direct me to a few cases from this district and a
wide range of decisions from other circuits. I start by comparing the three cases I have found
from this district as they are more persuasive. In two of those the court denied the motion to
dismiss, though in one the decision was “extraordinarily close.” In the third case the motion to
dismiss was granted.
In Ramos the plaintiffs alleged that the fiduciary provided investment options within the
Plan that were imprudent, because they had poor performance relative to the other investment
options available and had expense ratios in excess of other options. Ramos v. Banner Health,
No. 15-CV-2556-WJM-MJW, 2017 WL 4337598, at *6 (D. Colo. Sept. 29, 2017). The Court
denied the motion to dismiss because defendant’s arguments sought to “disprove Plaintiffs’
allegations on their merits or to put into evidence facts beyond what Plaintiffs have pled.” Id.
Importantly, however, the plaintiffs pled more than just excessive fees and imprudent investment
options. They also noted that many of the investment options were issued by Fidelity, who was
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also a fiduciary of the Plan, such that investment decisions drove revenues and profits to Fidelity
as kickbacks. Conversely, plaintiff has alleged no such interested party or relationship here.
In Troudt the plaintiffs alleged that defendants breached their fiduciary duty by causing
the Plan to pay unreasonable administrative expenses, and by providing three investment options
that underperformed and by not justifying their selection or retention.” Troudt, 2017 WL
663060, at *2. The magistrate judge analyzed this case only under the generic 12(b)(6)
standard—he did not analyze or compare to other cases alleging breach of a duty of prudence.
He recommended denying the motion to dismiss. Id. at *1. In accepting the recommendation
and denying the motion, Judge Blackburn wrote that “[i]t is clear . . . [the magistrate judge]
believed this case to be extraordinarily close and exceptionally context-specific,” and that his
own review “confirm[ed] that characterization, in spades.” Troudt, 2017 WL 1100876, at *1.
While this case is also close, my analysis of a broader range of case law on the issue leads me to
conclude that it must come out the other way.
Finally, in Birse, the magistrate judge recommended dismissing the case because
plaintiffs failed to allege imprudence in the fiduciary’s process in designing the Plan and
selecting and retaining potential investments. Birse v. CenturyLink, Inc., No. 17-CV-02872CMA-NYW, 2018 WL 6603961, at *5 (D. Colo. Nov. 19, 2018), report and recommendation
adopted in part, rejected in part sub nom. Birse, 2019 WL 1292861. The court emphasized that
plaintiffs improperly relied on hindsight to allege that defendant should have offered a better
performing fund, instead of “how an investigation would show an improvident process.” Id.
Birse, 2019 WL 1292861 at *5. They generally alleged issues with outcome, not process. Judge

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Arguello adopted the recommendation and dismissed the case. 1 Similarly, here plaintiff also
alleges many investment outcome-based allegations. Her allegations related to process are all
inferences about defendant Vail’s failure to adequately investigate alternative Plan options, and
these allegations are not enough to support the inference she asks this Court to make.
My review of decisions outside this jurisdiction also leads me to conclude that plaintiff
fails to allege a breach of the duty of prudence. Plaintiff’s first set of allegations relate to
defendant’s offering more expensive share classes instead of less expensive share classes from
the same issuer. With respect to these assertions, “merely alleging that a Plan offers retail-class
rather than institutional-class funds is insufficient to state a claim for the breach of duty of
prudence.” White v. Chevron Corp., No. 16-CV-793, 2017 WL 2352137, at *14 (N.D. Cal. May
31, 2017), aff’d, 752 F. App’x 453 (9th Cir. 2018) (unpublished). In White the plaintiffs asserted
that the fiduciaries should have offered cheaper share classes of the funds that were included
among the Plan options. The court stated that this contention was “based on the assumption that
the mere inclusion of a fund with an expense ratio that is higher than that of the lowest share
class violates the duty of prudence,” which is untrue. White v. Chevron Corp., No. 16-CV-0793PJH, 2016 WL 4502808, at *11 (N.D. Cal. Aug. 29, 2016). Other courts have also rejected the
theory that a fiduciary violates ERISA by offering more expensive share classes instead of less
expensive share classes. E.g. Loomis v. Exelon Corp., 658 F.3d 667, 671–73 (7th Cir. 2011);
Hecker v. Deere & Co., 569 F.3d 708, 711 (7th Cir. 2009). Alleging only the inclusion of more
expensive share classes is not enough, and plaintiff does not allege more.

1

Judge Arguello’s decision differed only in that she dismissed without prejudice, instead of with prejudice, because
plaintiffs sought leave to amend and had attached an amended complaint that incorporated facts learned during
discovery that allegedly addressed the deficiencies. Id. at *6–7.

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The decisions plaintiff cites for its share class argument differ substantially from the facts
here. In both Braden and Kruger, for example, all of the funds provided as options were retail
class shares instead of the less expensive institutional class shares. Braden, 588 F.3d at 595;
Kruger v. Novant Health, Inc., 131 F. Supp. 3d 470, 473 (M.D.N.C. 2015). By contrast, plaintiff
only alleges that some of the funds offered by defendant Vail in its Plan (fifteen of twenty-seven)
could have been replaced by identical lower-cost options—the twelve others were presumably
lower-cost options that participants could opt for. ECF No. 30 at ¶38. In Terraza the court
refused to dismiss share class claims when defendants did not secure the least expensive share
classes available. Terraza v. Safeway Inc., 241 F. Supp. 3d 1057, 1075–76 (N.D. Cal. 2017).
However, the court wrote that “Defendants’ failure to offer the investment option with the lowest
expense ratio is not enough, on its own, to plausibly state a claim for breach of the duty of
prudence.” Id. at 1076. The court denied the motion to dismiss because it found plaintiff alleged
“more than that.” Id. Most notably the court pointed to a potential inappropriate relationship
and influence over the fiduciary’s decision-making—at the time the Plan included challenged JP
Morgan funds, JP Morgan Chase Bank was the Plan’s trustee, and JP Morgan Retirement Plan
Services served as recordkeeper for the Plan. Id. Plaintiff makes no such assertions about an
inappropriate relationship here, leaving her only with bare allegations that defendant included
retail shares instead of institutional shares for some funds.
Plaintiff’s allegation that defendant was unjustified in choosing actively managed funds
over passively managed funds is equally unavailing. First, and most importantly, plaintiff fails
to mention that defendant did offer passively managed funds among its Plan options. ECF Nos.
30 at ¶43 (listing only fourteen of the twenty-seven options); 35-1; 35-3. I agree with defendant
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that plaintiff’s complaint reads as suggesting that actively managed funds can never be a prudent
choice, which cannot be true. Many courts have concluded that choosing actively managed
funds per se over actively managed funds is not a breach of fiduciary duty. In Meiners the
Eighth Circuit rejected a claim nearly identical to plaintiff’s allegations that compared actively
managed Wells Fargo funds to passively managed Vanguard funds. Meiners v. Wells Fargo &
Co., 898 F.3d 820, 823 (8th Cir. 2018). In Rosen the court rejected plaintiff’s claim for fiduciary
breach based on plan expense. There, similar to here, the Plan had a mix of actively and
passively managed funds—of fourteen, eleven were actively managed and three were passively
managed—and the court emphasized that the Plan thus included several alternatives to the
higher-cost actively managed options. Rosen v. Prudential Ret. Ins. & Annuity Co., No. 3:15CV-1839 (VAB), 2016 WL 7494320, at *15 (D. Conn. Dec. 30, 2016), aff’d, 718 F. App’x 3 (2d
Cir. 2017) (unpublished).
Plaintiff relies on Brotherston for the proposition that her allegations regarding passively
versus actively managed funds state a plausible claim. In that case plaintiffs alleged that
defendants breached their fiduciary duties by “offering participants a range of mutual fund
investments that included all of (and, for most of the class period, only) Putnam’s own mutual
funds without regard to whether such funds were prudent investment options.” Brotherston v.
Putnam Investments, LLC, 907 F.3d 17, 23 (1st Cir. 2018), cert. denied, 140 S. Ct. 911 (2020).
However, the First Circuit’s opinion came only after a bench trial in which the district court
found that “the entire portfolio of investment options . . . was selected by the use of imprudent
means.” Id. at 34. Plaintiff characterizes the court’s decision as holding that to favor largely
actively managed funds over passively managed funds establishes a prima facie breach of
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prudence case. ECF No. 36 at 12. But in fact, the case turned on defendant consistently
including its own funds, which it did not prudently select or monitor, in the portfolio. Plaintiff
makes no such allegations here about defendant Vail.
As for plaintiff’s allegation that the Plan’s fees were excessive, courts have held that to
establish a valid claim for excessive fees a fund must “charge a fee that is so disproportionately
large that it bears no reasonable relationship to the services rendered and could not have been the
product of arm’s-length bargaining.” Young v. General Motors Invest. Mgmt. Corp., 325 F.
App’x 31, 33 (2d Cir. 2009) (unpublished) (internal quotation and citation omitted). Put
differently, “the investment must be so expensive and so flatly improper that a reasonably
prudent investor could not have selected such an option—even if hedged with safer or lower-cost
investments elsewhere in the portfolio.” Birse, 2018 WL 6603961, at *7.
Courts have routinely rejected arguments like plaintiff’s that are based on allegations of
excessive fees. For example, in Hecker the court rejected the argument that defendants breached
their fiduciary duty by selecting investment options with excessive fees. 556 F.3d at 586. It
wrote “[t]he fact that it is possible that some other funds might have had even lower ratios is
beside the point; nothing in ERISA requires every fiduciary to scour the market to find and offer
the cheapest possible fund (which might, of course, be plagued by other problems).” Id. In fact,
“nothing in the statute requires plan fiduciaries to include any particular mix of investment
vehicles in their plan.” Id. Renfro, another Seventh Circuit case, came to the same conclusion.
Renfro v. Unisys Corp., 671 F.3d 314, 327–28 (3d Cir. 2011) (rejecting claims for fiduciary
breach based on excessive fees when Plan provided a “reasonable range of investment options
with a variety of risk profiles and fee rates”).
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Meiners from the Eighth Circuit is similar. The court affirmed a grant of defendant’s
motion to dismiss where plaintiffs alleged that defendants failed to remove their expensive and
underperforming funds from the Plan’s options based on high fees. Meiners, 898 F.3d at 823.
Likewise, in Rosen the District of Connecticut granted a motion to dismiss on analogous
allegations regarding costly investment options. It noted that “general allegations regarding the
cost of selected investments do not demonstrate that those investments were imprudent, or that a
prudent fiduciary would have decided any differently under the circumstances, and thus they fail
to state an ERISA claim as a matter of law.” Rosen, 2016 WL 7494320, at *14. The menu of
investment options resulted in expense ratios from 0.04% to 1.02%. The court noted that the
Plan thus offered a wider “mix and range” of offerings than those in Hecker and Renfro, in which
the courts also dismissed claims for fiduciary breach based on excessive fees. Id. at *15.
Plaintiff does point to other decisions that suggest it plausibly establishes an ERISA
violation. E.g. Sweda v. Univ. of Pennsylvania, 923 F.3d 320, 330 (3d Cir. 2019), cert. denied,
140 S. Ct. 2565 (2020). There is no doubt that this case is a close call. Ultimately, however, I
conclude that even when taken together plaintiff’s allegations fall short of a valid claim for
breach of the duty of prudence. While it is true that many of the funds defendant offered in its
Plan were more expensive and underperformed alternatives, this was not true of all the Plan’s
offerings. The complaint includes no direct allegations of imprudence in Vail’s fund selection,
retention, or management process. Nor can I “infer from what is alleged that the process was
flawed” and that Vail was an imprudent fiduciary. Braden, 588 F.3d at 596. Defendant’s Plan
offered a range of fund options with various costs, fee structures, and rates of return, as it is
expected to do so as a fiduciary. I therefore GRANT defendant’s motion to dismiss the claim for
25

breach of fiduciary duty of prudence under Rule 12(b)(6). Plaintiff has already had an
opportunity to amend her complaint once, and the Court does not believe that further opportunity
to amend would address the current deficiencies. Nor has plaintiff urged the Court to dismiss
without prejudice or provided a newly amended complaint like in Birse. The dismissal is
therefore with prejudice.
2. Breach of duty of loyalty
In her single claim plaintiff also mentions the duty of loyalty owed by ERISA fiduciaries.
Courts addressing the duty of loyalty separately under ERISA point to 29 U.S.C. §
1104(a)(1)(A), which requires fiduciaries to act “for the exclusive purpose of providing benefits
to participants and their beneficiaries.” E.g. Cunningham v. Cornell Univ., No. 16-CV-6525
(PKC), 2017 WL 4358769, at *4 (S.D.N.Y. Sept. 29, 2017). A breach of the duty of loyalty
requires factual allegations that a defendant’s actions were for the purpose of providing benefits
to himself or someone else—having that effect incidentally is not enough. Id.; Cassell v.
Vanderbilt Univ., 285 F. Supp. 3d 1056, 1062 (M.D. Tenn. 2018); Sacerdote v. New York Univ.,
No. 16-CV-6284 (KBF), 2017 WL 3701482, at *5 (S.D.N.Y. Aug. 25, 2017). Furthermore, “a
plaintiff must do more than simply recast purported breaches of the duty of prudence as disloyal
acts.” Sacerdote, 2017 WL 3701482, at *5.
Here, plaintiff’s allegations sound only in prudence. ECF No. 30 at ¶¶74–81. Plaintiff
puts forth no facts suggesting that any of defendant’s actions were for the purpose of benefiting
itself. Defendant raises this in its motion to dismiss, and plaintiff’s response is a short two
sentences: “The burden of Kurtz’s claims is that Vail oversaw a deeply flawed decision-making
process tainted by lack of diligence and effort. That is enough to state prima facie, and plausible,
26

claim.” ECF No. 36 at 14. I disagree. Plaintiff has fallen far below the Rule 12(b)(6) standard
with respect to this part of her claim. I therefore GRANT defendant’s motion to dismiss with
prejudice as to the alleged breach of fiduciary duty of loyalty as well.
ORDER
Defendant’s motion to dismiss, ECF No. 34, is GRANTED. The Court enters its final
written judgment dismissing this case with prejudice. As the prevailing party defendant is
awarded its reasonable costs to be taxed by the Clerk pursuant to FED. R. CIV. P. 54(d)(1) and
D.C.COLO.LCivR 54.1.
DATED this 6th day of January, 2021.

BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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