United States District Court, N.D. New York
ULICO CASUALTY COMPANY, Plaintiff,
CLOVER CAPITAL MANAGEMENT, INC., Defendant.
The opinion of the court was delivered by: HOWARD MUNSON, Senior District Judge
MEMORANDUM DECISION AND ORDER
Plaintiff Ulico Casualty Company ("Ulico"), instituted this
lawsuit against Defendant Clover Capital Management,
Inc.("Clover"), under §§ 404 (a) (1) (B); 404 (a) (1) (D)
Fiduciary Duties Prudent Man Standard, and 405(a)(2)
Liability for breach of a co-fiduciary Circumstances given rise to liability, of the Employment
Retirement Income and Security Act ("ERISA"), 29 U.S.C §§ 1104
(a) (1) (B); 1104 (a) (1) (D); and 1105 (a) (2). A state common
law breach of contract cause of action was dismissed as preempted
by the ERISA as part of a decision made May 11, 2001, by the Hon.
Thomas J. McAvoy in a prior summary judgment motion made in this
case. This non-jury case was tried before this court on January
29, 30, and February 3, 4, 5, 2003.
Plaintiff Ulico underwrote fiduciary liability coverage to the
Funds and their Trustees. Clover Capital Management, Inc. is an
asset manager for individuals, employee benefit plans, endowments
and foundations, and is a registered investment advisor. Laborers
International Union of North America Local 35 Pension Fund, Local
No. 322 Pension Fund and Carpenters Local No. 120 Pension Fund
(collectively the "Funds") are employee pension benefit plans
within the meaning of ERISA 29 U.S.C. § 1002 (2)(A). Clover
became the investment manager for all three Locals in
February/March 1995. Local 35 ended its relationship with Clover
on March 23, 1999, and Locals 322 and 120 did so on May 1, 2000.
The complaint asserts that the defendant has breached ERISA
fiduciary obligations while managing assets of the Funds' pension
plans. Before this court are the questions of whether defendant
breached and ERISA duty by (1) failing to satisfy the "prudent
man" standard of 29 U.S.C § 1104(a)(1)(B) and (D), by not
conducting a careful analysis before selling the Fund's major
assets at a loss, and 29 U.S.C. § 1105(a)(2) his not complying
with § 1104(a)(1) enabled another fiduciary to commit a breach.
The following constitutes the court's findings of fact and
conclusions of law pursuant to Rule 52 (a) of the Federal Rules
of Civil Procedure. This action was begun as a result of previous lawsuits brought
by the United States Department of Labor (DOL) against the
Trustees of these three unions pension Funds alleging that they
had improperly invested in Z-Bonds and sold them at a significant
loss to the Funds. Z-Bonds are a class, or tranche, of
Collateralized Mortgage Bonds ("CMOs") which are real estate
mortgage investment conduit bonds that are derivative of
mortgage-backed securities. These bonds are considered volatile
because an upward change in the interest rate could result in a
appreciable decrease in their market value.
Background and Findings of Fact
The witnesses' testimony laid out in detail the events and
individual actions taken regarding the Funds' purchase and sale
of their Z-bonds investments.
From 1988 to 1995, the trustees of the Funds retained W.J.
Nolan & Company ("Nolan"), a broker in mortgage backed
securities, to invest in fixed income securities on behalf of the
Funds. Starting in 1992 and proceeding through 1994, Nolan
acquired Z-bonds for the Funds. At the end of 1994, the Funds
portfolio of investments purchased by Nolan consisted principally
of Z-bonds. During that same year, the market value of Z-bonds
At a joint meeting of the boards of Trustees of the Funds, held
August 10, 1994, Stephen Thomas, of O'Sullivan Associates, the
Funds actuary and monitor, addressed the Trustees. He stated that
the returns on the W.J. Nolan brokerage account looked poor, the
Trustees should consider retaining an investment manager. The Funds actuarial strength, relied in part, on the current
market value of the investment assets, and not the yield to
maturity of those assets. Actuarial funding is based upon the
market value of assets. The market value of the Funds' assets
consist of investment yield and market value fluctuations,
appreciation and depreciation are counted and included in the
value of the securities, and even if a security pays a guaranteed
yield, for actuarial purposes and governmental reporting, it must
looked at each year. (Thomas Dep. 47-50). This is emphasized on
page 5 of the minutes of the August 10, 1994 meeting, the second
paragraph from the bottom recites that "since benefits
improvements are based on market value assets, it is no
consolation to rely on return only, even if the investments are
held to maturity." (Id.)
Market value increase or decrease from the prior year and
actuarial information are reported to the government on Form 5500
prepared by the Funds' accountants. This means that fluctuating
market value in the assets held by a pension fund have very
direct consequences on the way the government perceives their
funding activities. Tr. 616-18 (Holmer), Defendant's Exhibits
In the fall of 1994, the Funds' Trustees decided to retain
other investment managers for their Nolan portfolios. At the
request of Gerald Scotti, the Funds manager, on September 27,
1994, Clover's William Wilson made an oral and written
presentation to the Trustees describing the services Clover was
prepared to provide to the Funds.
In the presentations to the trustees of each of the Funds,
Clover's representative stated that attempting to predict
interest rate changes was a highly risky undertaking and it
virtually guaranteed poor long term results. Consequently, Clover
would not attempt to predict interest rates in its bond
management efforts. Clover called it portfolio objective "Income Emphasis" having approximate mixed targets of 70% fixed income
securities and 30% equity securities. (Tr. 375-76) Tr. 15
(Bergeron) Clover described its "market risk" fixed management
approach where fixed income instruments with short, medium and
long maturities are utilized to achieve a maturity with an
average duration of approximately 8 to 10 years and an average
duration of approximately 5 years. (Tr. 389-90)The trustees also
received a detailed presentation booklet describing Clover's
investment style with respect to equities and fixed income
After the presentations were made to the trustees of the Funds
by the various investment manger entities, the trustees of each
of the Funds voted to hire Clover as an investment manager, and
to transfer the securities in the Nolan portfolio to Clover's
The trustees further resolved that a portion of the assets
assigned to Clover would eventually be transferred to one or more
investment managers. For the Local 35 Fund, the transfer would be
made to Loomis, Sayles & Company ("Loomis Sayles")which would
result in Clover and Loomis Sayles having an equal amount of the
assets formerly in the Nolam portfolio; for the Local 120 Fund, a
transfer would be made that would result in HGK Asset Management,
Loomis Sayles and Clover managing approximately equal portions of
all pension funds available for investment; and for Local 322, a
transfer of $1 million of assets to Manning & Napier, an existing
investment manager for Local 322.
In January 1995, after Clover had evaluated all the Nolan
Z-bonds in the various management portfolios, it decided to
liquidate the Nolan Z-Bonds to cash and transfer the proceeds pro
rata to the other invest managers as soon as possible. The other
managers of the Funds had advised Clover that they were not
interested in acquiring any of the Z-Bond securities either. Tr. 393. Liquidating the Z-Bonds would produce cash for
funding the other managers' accounts and permit Clover's to carry
out it's equity and fixed income investment programs. Clover then
sold the Z-Bonds at a significant loss to the Funds.
There is disputed testimony between the Trustees and Clover as
to whether the Trustees or their representatives directed Clover
to sell the Z-Bonds, or whether Clover did it on its own
initiative. However, the court finds that it is unnecessary to
the determination of liability in this case for a decision to be
made as to which testimony is more credible.
In 1998, the ("DOL") commenced its lawsuits against the
Trustees for breaching their fiduciary duties and sought recovery
of all losses in market value to the Funds attributable to the
Z-bond investment from 1992 through 1994. The DOL complaint did
not allege that the Z-Bonds sale failed to comply with the
prudent man standard of care set forth in § 1104(a)(1).
The Trustees entered into Consent Decrees with the DOL, that
discontinued the lawsuits and provided that the Trustees would
make payments to the funds in the amount of $3 million, plus a
20% penalty under 29 U.S.C. § 1132(1). Ulico took responsibility
for the defense of the DOL lawsuits, and payments of the $3
million settlement, and the $600,000 penalty. Ulico and the
trustees then executed a settlement agreement which provided,
inter alia, that the Trustees assigned, transferred, and
conveyed to Ulico all claims, causes of action, rights and
recoveries against all parties responsible for the losses
sustained by the Funds including but not limited to Clover . . .
based upon, or arising from Clover's management and sale of the
Z-bonds referred to in the DOL action. Ulico thereupon started
the instant action against Clover.
The Legal Standard In its first cause of action, Ulico alleges that Clover
breached its fiduciary duty under 404(a)(1)(B) of ERISA
29 U.S.C. § 1104(a)(1)(B)and (D).
Fiduciaries under ERISA are obligated to discharge their duties
"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 his conduct
of an enterprise of like manner of a like character and with like
aims," 29 U.S.C. § 1104(1)(B), and, (D) "in accordance with the
documents and instruments governing the plan insofar as such
documents and instruments are consistent with the provisions of
this subchapter and subchapter III of this chapter. §
1104(a)(1)(c), also imposes a duty of diversification whereby the
fiduciary should not normally invest all or an unduly large
portion of plan funds in a single security, or any one type of
security, or even in various securities that depend on the
success of one enterprise. Marshall v. Teamsters Local 282
Pension Trust Fund, 458 F. Supp. 986, 990 (E.D.N.Y. 1978)
The source of the standard set forth in these sections is the
objective "prudent person" standard developed in the common law
of trusts. Kastaros v. Cody, 744 F.2d 270, 279 (2d Cir. 1984);
cert. denied sub nom, Cody v. Donovan, 469 U.S. 1072,
105 S. Ct. 565, 83 L. Ed.2d 506 (1984).
ERISA's prudence standard "is not that of a prudent person but
rather that of a prudent fiduciary with experience dealing with a
similar enterprise." United States v. Mason Tenders District
Council of Greater New York, 744 F. Supp. 882, 886 (S.D.N.Y.
1995) (quoting Marshall v. Snyder, 1 Empl. Ben. Cases (BNA)
1878, 1886 (E.D.N.Y. 1979). In enacting ERISA, "Congress made
more exacting the requirements of the common law of trusts
relating to employee benefit trust funds." Donovan, 716 F.2d at 1231-32;
Reich v. Valley National Bank of Arizona, 837 F. Supp. 1259,
1273 (S.D.N.Y. 1993) (ERISA is a more stringent version of the
prudent person standard than in the common law). Rice v.
Rochester Laborers' Annuity Fund, 888 F. Supp. 494, 499
(W.D.N.Y. 1995); Donovan v. Bierwirth, 680 F.2d 263, 272 n. 8
(2d Cir.) cert. denied, 459 U.S. 1069, 103 S. Ct. 488,
74 L.Ed.2d 631 (1982) (duties of an ERISA fiduciary are the highest
known in law).
["T]he prudence rule does not make the fiduciary
insure the plan's assets or of the success of the
investments. ERISA does not require that a pension
take no risk with its investments. Virtually every
investment entails some degree of risk, and even the
most carefully evaluated investments can fail while
unpromising investments may succeed.
Marshall v. Glass/Metal Association and Glaziers & Glassworkers
Pension Plan, 507 F. Supp. 378, 384 (D. Haw. 1980), aff'd.
895 F.2d 729
(11th Cir. 1990). However, the fiduciary's
subjective, good faith belief in an investment does not insulate
him from charges that he acted imprudently. Donovan v.
Bierwirth, 538 F. Supp. 463, 465 (E.D.N.Y. 1981).
ERISA's prudent person standard has been interpreted by the
courts as an objective standard requiring (1) to employ proper
methods to investigate, evaluate and structure the investment;
(2) to act in a manner as would others who have a capacity and
familiarity with such matters; and (3) to exercise independent
judgment when making investment decisions. Mason Tenders,
909 F. Supp. at 886; Lanka v. O'Higgins, 810 F. Supp. 379, 387
(N.D.N.Y. 1992). This standard requires that the fiduciary's
behavior be measured against the standards in the investment
industry. Lanka, 810 F. Supp. at 187. In evaluating whether a
fiduciary acted prudently under ERISA, the court should inquire
whether the fiduciaries "at the time they engaged in the
challenged transaction, employed the appropriate methods to
investigate the merits of the investment and to structure the investment."
Kastaros, at 279. ERISA's test of prudence is one of conduct,
and not a test of the result of performance of action taken by
the fiduciary. The focus of the inquiry is what steps the
fiduciary took before making the decision to act, and not whether
the action succeeded or failed. Donovan v. Cuningham,
716 F.2d 1455, 1467 (5th Cir. 1983), cert. denied, 467 U.S. 1251,
104 S. Ct. 3533, 82 L. Ed.2d 839 (1984). The right inquiry,
therefore, is whether the fiduciary, prior to making the
challenged transactions, employed appropriate methods to
investigate the merits and merits of the actions to be taken.
Donovan v. Mazzola, 716 F.2d 1266, 1272 (9th Cir. 1983),
cert. denied, 464 U.S. 1040, 104 S. Ct. 704, 79 L. Ed.2d 169
(1984). So the court must look to the time the fiduciary was
making the decisions regarding the Funds, and not hindsight.
United States v. Mason Tenders District Council of Greater New
York, 90 F. Supp. 882, 886 (S.D.N.Y. 1995).
Ulico's second cause of action alleges that Clover violated
29 U.S.C. § 1105(a)(2), which provides that "[A] fiduciary with
respect to a plan shall be liable for breach of fiduciary
responsibility of another fiduciary with respect to the same plan
. . . if, by his failure to comply with section 1104(a)(1) of
this title in the administration of the specific responsibilities
which give rise to his status as a fiduciary, he has enabled
another fiduciary to commit a breach".
Discussion and Conclusions of Law
The crucial issue in the instant case is whether Clover
breached its fiduciary duties when it liquidated the Funds'
Z-Bonds portfolio to cash in making the transition of assets to
the other investment managers and to implement it Income Emphasis
portfolio for the Funds. Ulico contends that the evidence adduced at trial clearly demonstrate
that Clover failed to act in accordance with the prudent person
standard set forth in ERISA by failing to investigate whether the
1995 liquidation to cash was the most appropriate means of
accomplishing the transition of assets between investment
Dr. Martin R. Holmer, Clover's expert, obtained his PhD in
economics from the Massachusetts Institute of Technology. He
taught and researched portfolio selection and mortgage securities
at the University of Pennsylvania Wharton School of Finance. He
has published articles on portfolio choice, risk return,
trade-offs to get optimum portfolios where mortgaged backed
securities were involved as a choice set. He was an expert
witness for the U.S. Department of Labor in a case concerning a
pension fund's trustees CMOs purchases. He employed by the U.S.
Government as a director of a large research program concerning
Social Security, by E.F. Hutton in their CMO group and developed
the computer simulation model that allowed Hutton to issue CMOs.
He was at Federal National Mortgage Corporation (Fannie Mae)
where, for over five years as vice president for asset/liability
strategy, he assisted in constructing their computer simulation
capabilities to trade off risk and return in their mortgage
portfolio which is probably the world's largest. Fannie Mae also
issued mortgage backed securities and some of the Funds' CMOs
were Fannie Mae originated. After leaving Fannie Mae, he started
the Policy Simulation Group, an economic consulting firm. His
company's self-built computer simulation model reproduced
fluctuating values in defined benefit pensions and the funding,
and the pension plan sponsor's responses, or lack thereof to
fluctuating asset values. This monitoring procedure was needed
because insurance companies collected premiums and paid claims,
and the bankruptcy of an insured sponsor of an underfunded
pension plan could result in a sizable loss claim.
The testimonies of Dr. Holmer, and Clover employees Richard
Huxley, Paul W. Spindler and William Wilson in this case support
the reasonableness of Clover's decision to transition the assets
as cash rather than as securities. The difference in investment
strategies between Clover and Nolan made it relatively certain
that Clover would liquidate the Z-Bond portion of the portfolio
when it was transferred, and the other new investment managers
indicated that if they had received the Z-Bonds, they also would
have liquidated them. Additionally, the disappointing results
from the Nolan portfolio made it suitable to liquidate the
portfolio to cash to better the chances for the new managers to
implement more quickly their new management investment strategy.
Dr. Holmer testified that from the materials and depositions
that he had read, Clover's sale of the Z-Bond was correct because
before doing so, it had considered a wide range of issues
involved in reaching the decision on whether to hold the Z-Bonds,
or sell them and use the proceeds to purchase other securities.
Among those considerations were statistical data from the
Bloomberg screens, yield to maturity, shorter term market value
risk and diversity of the portfolio it was assuming. (Tr. 619).
Richard Huxley, Executive Vice President and Director of Fixed
Income Management for Clover, testified that when Clover received
a list of the Funds' assets in the Norton portfolio, Paul W.
Spindler, a portfolio manager analyst, who had been assigned the
portfolio management responsibilities for the Funds' accounts,
loaded each individual security into Clover's internal software
systems, which then produce a report that gave an overall view of
the types of securities that were in the portfolio and what the
overall characteristics of the portfolio were in total.
After viewing the report, Messsrs. Huxley, Spindler and William
Wilson, Clover's Director of Institutional Sales, conferred and
decided that since the weighted average duration of the portfolio
was twenty years, the Funds' portfolio would have to be
significantly reconstructed to supply the funds needed for the
equity portion of the portfolio, and to reconfigure the bond
portfolios to correspond with the central mandate and jibe with
Clover's strategies and model portfolio at that time. (Tr.
William Wilson testified that he initiated a telephone
conference call on a January 25, 1995, between himself, Messers
Huxley and Spindler, Gerald Scotti, third party administrator to
the Funds' pension plans, and Steve Thomas, the Funds' actuary.
During this call, the Clover representatives explained that
examining the Funds' portfolio, it was concluded that a
substantial liquidation of the portfolio was necessary to acquire
the funds needed for the equity portion as well as reconfiguring
the remaining dollars to Clover's core fixed income strategy. The
Clover personnel then explained in detail how they reached their
conclusion. Mr. Scotti and Mr. Thomas understood the information
that was conveyed by Clover, and no objections were raised
thereto. At the end of the discussion, Mr. Scotti advised the
Clover people that he had heard from the other investment
managers the Funds had hired, and they were not interested in
keeping any of the Z-Bonds either, and would Clover complete the
sale of the Z-Bonds because it did not appear that Clover was
interested in keeping them either. Clover agreed to do so. On
January 27, 1995, Mr. Wilson sent Mr. Scotti a letter confirming
the discussions that had taken place during the telephone
conference (Tr. 391-393).
Clover's sale of the Z-Bonds did not violate its fiduciary duty
under ERISA. In Board of Trustees of the Local 295/Local 851 Pension Fund v. Callan
Associates Inc., 175 F.3d 1007, 1999 WL 159893 (2d Cir.), the
Second Circuit held that even though the plaintiff pension funds
sustained a loss of approximately $1.5 million, it was acceptable
in the investment community in 1995 for asset transition between
fixed income managers to be executed through a liquidation to
cash method similar to what was done in 1995 by Clover when it
sold the Z-Bonds. The Second Circuit further found that because
of this investment community acceptance, the use of this
transition method did not breach the fiduciary duty under ERISA,
nor was the fiduciary required to undertake additional
investigation of alternative transition methods.
The plaintiff's expert witness was Dr. Andrew S. Carron, an
economic consultant who earned his PhD in economics at Yale
University. He worked for several years at the Brookings
Institute in Washington D.C., a not-for-profit-public policy
research organization. While there, he studied and wrote on
financial products, markets and institutions. In 1984 he left
Brookings and moved to Wall Street, where he was employed for 12
years, the first two at Lehman Brothers and, the final 10, at
Credit Suisse First Boston. In 1996, he took his current position
with National Economic Research Associates. He is qualified to
testify regarding portfolio management and CMO investment. He has
provided expert testimony in state and federal courts and before
enforcement proceedings of U.S. government agencies, in
arbitrations under the auspices of the National Association of
Dr. Carron testified that Clover's method of selling the bonds
was imprudent and resulted in the aggregate proceeds received by
the Funds being approximately $720,000 (TR. 233-257) less than
the market prices at the time of the sale, and that the Z-Bonds
should have been retained by Clover or sold gradually. (Tr. 241)
He also stated that Clover should have undertaken a quantitative analysis in which the relative yield of
the Z-Bonds and the securities that would be purchased in their
stead would be compared under different scenarios, and using a
comparable benchmark as a source of measurement; the relative
yields would then be evaluated in conjunction with other relevant
considerations such as risk (Tr.195-205).
On direct examination, Dr. Carron did acknowledge that there
are a number of different approaches that institutional investors
use in deciding to purchase or sell fixed income securities. (Tr.
194) On cross examination, he stated that his opinion is only
directed at the sale of the Z-Bonds, he has not expressed an
opinion about Clover's Income Emphasis strategy, but if Clover
had started with cash, he would not find anything imprudent about
the stocks and bonds Clover purchased for the Fund, but, in
hindsight, Clover would have done better with the Z-Bonds. (Tr.
442-444). He also stated that he was not sure whether and to what
extent and what type of analysis Clover did in reaching its
decision to sell the Z-Bonds. (Tr. 448-450). Dr. Carron also
admitted that he no experience as a bond trader. (Tr. 506). Dr.
Carron states that Clover received a below market price for the
Z-Bonds it sold because they were offered to too many dealers
coincidently, which could have manifested oversupply. He tested
this theory by examining third-party pricing sources for Z-Bonds
on the sale date, and calculating the difference between the
third party pricing sources and the actual sales price. (Tr.
255). He did admit, however, that he did not know what the volume
of Z-Bond sales were on the dates of Clover's sales. (Tr. 566).
Nor did he show that entities using fewer dealers on the same
days as Clover's Z-Bonds sales were selling the same or
comparable bonds at higher prices than Clover. (Dr. Holmer, Tr.
631). Paul Spindler testified that soliciting more bidders
resulted in actual sales prices being closer to model prices for
the Z-Bonds Clover sold. (Tr. 691-92). Using a Bloomberg terminal, Dr. Carron accessed two pricing
services, FT Interactive and Merrill Lynch, that produce
computerized model sales prices for bonds, not the actual prices
at which transactions occurred. (Tr. 515, Dr. Holmer Tr. 631). He
did not know why the prices produced by these two services are
not the same, or how an existing third service could produce
another price (Tr.517-518). He was not aware of any historical
data for actual trades for Z-Bonds that could be compared to the
model prices to determine how accurate they are, and agreed that
sale prices of securities on a given day are a better indication
of fair market value.(Tr. 517). When advised that on three
different dates the difference between Merrill Lynch's and FT
Interactive sale prices deviated by 10, 7 and 45 percent, he
could not explain the differences. (Tr. 521). His analysis did
not include an adjustment for many of the Z-Bonds sold as odd
lots. This type of security has a lower face value maturity or
security and, generally, is sold for lower prices than higher
face value securities. Many of the Z-Bonds Clover sold were odd
lots.(Tr. 523, 524).
The court finds that Dr. Charron's testimony insufficient to
prove Clover's sale of the Z-Bonds was imprudent and caused the
combined proceeds received by the Funds to be approximately
$720,000 below the market price for Z-Bonds on the dates of their
A trier of fact may reject testimony of a witness where he is
not convinced of its merits. Tyson v. Jones & Laughlin Steel
Corp., 958 F.2d 756, 759 (7th Cir. 1992).
Dr. Carron's quantitative analysis indicated that had the
Z-Bonds not have been sold, but held to maturity, they would have
out performed alternative investments .
Paragraph 9 of the DOL's complaint in it action against the
The specific Z-Bonds purchased by the Defendant
Trustees were a high risk, volatile class of security
with a long weighted average life, whose market value was highly sensitive to changes in interest
rates and the resulting changes in mortgage
prepayment rates. . . . the Fund's Nolan portfolio
was invested predominantly in Z-Bonds, placing the
Plan's assets at inappropriate and unnecessary risk.
In spite of this ominous condemnation of overloading pension
funds with Z-Bond investments, Dr. Carron testified that Clover
should have kept the Z-Bonds, or sold them gradually, because his
quantitative analysis showed that they would have out performed
alternative securities. (TR. 195-210). This opinion overlooks the
facts that there was no way to discover with certainty whether
additional interest rate raises could have further depressed
their market valuation, or if and when they might begin to
recover; that continuing to hold them could constitute a lack of
diversification violation under 29 U.S.C. § 1104 (a)(1)(c); and
that it would prevent Clover from carrying out the investment
management plan that it had presented to the Funds' trustees, and
which they were expecting to be establish forthwith.
Additionally, while Dr. Carron's hindsight projections
indicated that the Z-Bonds would have out performed the
securities purchased by Clover, in his deposition testimony of
November 13, 2001, Steve Thomas, the Funds' actuary, stated that
Clover's investments exceeded the Funds' 7½% yield assumption
from April 1, 1995 through March 31, 1999. (Thomas Dep. 122-124).
This court finds the defendant acted in conformity with the
prudent man standard and therefore fully complied with its
fiduciary obligations under 29 U.S.C. § 1104(a)(1)(B) and (D),
and 29 U.S.C. § 1105(a)(2).
Accordingly, plaintiff's claims against the defendant are
DISMISSED in their entirety.
Plaintiff's motion in Limine to Exclude Expert Testimony of Jon
D Carlson w/exhibits 1 & 2, and Dr. Martin R. Holmer w/exhibits
1-3, were not argued prior to the trial and are made MOOT by
this decision, Plaintiff's motion in Limine to Admit Document into Evidence is
DENIED as moot, the document was admitted into evidence and
considered by the court in its deliberations,
Defendant's renewed motion to exclude the trial testimony of
Dr. Andrew Carron is DENIED,
Defendant's motion for a directed verdict in its favor pursuant
to Federal Rule of Civil Procedure 52(c), is DENIED as moot,
All objections made at trial regarding the admission of
testimony and/or evidentiary exhibits into evidence are DENIED.
IT IS SO ORDERED.
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