Facts
The Complaint alleged that the WorldCom Retirement Plan administrators were WorldCom insiders who knew or had reason to know that the price of WorldCom stock was artificially high because public statements concerning the Company's business and prospects were false or misleading to investors. When the facts became public, the stock plummeted, thus resulting in the near total loss of retirement funds.
MCI, Inc. was an American telecommunication corporation, and is currently a subsidiary of Verizon Communications, with its main office in Ashburn, Virginia. The corporation was formed originally as a result of the merger of WorldCom and MCI Communications corporations, and used the name MCI WorldCom, succeeded by WorldCom, before changing its name to the present version on April 12, 2003, as part of the corporation's ending of its bankruptcy status. The company traded on NASDAQ as WCOM (pre-bankruptcy) and MCIP (post-bankruptcy). The corporation was purchased by Verizon Communications with the deal finalizing on January 6, 2006, and is now identified as that company's Verizon Enterprise Solutions division with the local residential divisions being integrated slowly into local Verizon subsidiaries.
- Problems With Remedies Under the Securities Law
The allegations of fraud and artificial inflation of WorldCom's stock price formed the basis for a lawsuit brought by investors under the securities laws, but that suit offered inadequate chance for recovery for WorldCom employees who invested in company stock in their 401(k) plan. A common perception is that employees actually own stock in their companies when they invest in company stock funds in their retirement plan. Typically, however, the plan itself owns the stock.
The securities laws provide limited help in the case of 401(k) plans because investors can only recover for shares that they purchased during the period when the stock was artificially inflated by fraud; they cannot recover for losses to stocks that they purchased before the fraud began, but held during the period of artificial inflation. Moreover, suits on behalf of a retirement plan need only prove breach of fiduciary duty and are not required to meet the more difficult fraud standard.
- The Vivien Suit's ERISA-Based Theory of Recovery
Because of the limitations outlined above, plaintiffs in the Vivien action sued under the Employee Retirement Income Security Act (ERISA) of 1974, a federal statute established to protect the rights of employee benefit plan participants.
ERISA requires that those who run employee welfare plans – including 401(k) retirement plans – have a duty to provide accurate information about the plans to participants, and to invest the assets of the plans prudently. These are "fiduciary duties" – the highest duties imposed by law.
A fiduciary is a person who holds a legal or ethical relationship of trust with one or more other parties. Typically, a fiduciary prudently takes care of money or other assets for another person. One party, for example, a corporate trust company or the trust department of a bank, acts in a fiduciary capacity to another party, who, for example, has entrusted funds to the fiduciary for safekeeping or investment. Likewise, financial advisers, financial planners, and asset managers, including managers of pension plans, endowments, and other tax-exempt assets, are considered fiduciaries under applicable statutes and laws. In a fiduciary relationship, one person, in a position of vulnerability, justifiably vests confidence, good faith, reliance, and trust in another whose aid, advice, or protection is sought in some matter. In such a relation good conscience requires the fiduciary to act at all times for the sole benefit and interest of the one who trusts.
A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence.
The Vivien Complaint alleged that the Defendants breached their fiduciary duty of prudence under ERISA by continuing to invest plan assets in WorldCom stock when the stock was artificially inflated by the false and misleading statements of WorldCom's senior management.
In Trust Law, the Duty of Prudence traditionally includes the duty of a trustee to administer a trust with a degree of care, skill and caution. The degree of care required depends both on the jurisdiction on the trustee's actual or purported skill, for example if they have an accounting background, they must exercise professional care. At a minimum, a trustee is required to act with the care of a "prudent person" would in dealing with the assets of another, given the purposes, terms, and other circumstances of the trust.
The Defendants moved to dismiss the complaint, arguing that it was "actually a securities-fraud action governed by the Private Securities Litigation Reform Act masquerading as an ERISA action." The Court disagreed.
The Private Securities Litigation Reform Act of 1995, Pub. L. 104-67, 109 Stat. 737 ("PSLRA") implemented several substantive changes in the United States, affecting certain cases brought under the federal securities laws, including changes related to pleading, discovery, liability, class representation, and awards fees and expenses.
Insider trading is the trading of a public company's stock or other securities based on material nonpublic information about the company. In various countries, some kinds of trading based on insider information is illegal. This is because it is seen as unfair to other investors who do not have access to the information, as the investor with insider information could potentially make larger profits than a typical investor could make. The rules governing insider trading are complex and vary significantly from country to country. The extent of enforcement also varies from one country to another. The definition of insider in one jurisdiction can be broad, and may cover not only insiders themselves but also any persons related to them, such as brokers, associates, and even family members. A person who becomes aware of non-public information and trades on that basis may be guilty of a crime.
The Employee Retirement Income Security Act of 1974 (ERISA) is a federal United States tax and labor law that establishes minimum standards for pension plans in private industry. It contains rules on the federal income tax effects of transactions associated with employee benefit plans. ERISA was enacted to protect the interests of employee benefit plan participants and their beneficiaries by:
A retirement plan is a financial arrangement designed to replace employment income upon retirement. These plans may be set up by employers, insurance companies, trade unions, the government, or other institutions. Congress has expressed a desire to encourage responsible retirement planning by granting favorable tax treatment to a wide variety of plans. Federal tax aspects of retirement plans in the United States are based on provisions of the Internal Revenue Code and the plans are regulated by the Department of Labor under the provisions of the Employee Retirement Income Security Act (ERISA).
SEC Rule 10b-5, codified at 17 C.F.R. 240.10b-5, is one of the most important rules targeting securities fraud promulgated by the U.S. Securities and Exchange Commission, pursuant to its authority granted under § 10(b) of the Securities Exchange Act of 1934. The rule prohibits any act or omission resulting in fraud or deceit in connection with the purchase or sale of any security. The issue of insider trading is given further definition in SEC Rule 10b5-1.
A financial adviser or financial advisor, is a professional who suggests and renders financial services to clients based on their financial situation. In many countries financial advisors have to complete specific training and hold a license to provide advice. In the United States for example a financial adviser carries a Series 7 and Series 65 or Series 66 license and according to the U.S. Financial Industry Regulatory Authority (FINRA), license designations and compliance issues must be reported for public view. FINRA describes the main groups of investment professionals who may use the term financial advisor to be: brokers, investment advisers, private bankers, accountants, lawyers, insurance agents and financial planners.
A cause of action, in law, is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit. The legal document which carries a claim is often called a 'statement of claim' in English law, or a 'complaint' in U.S. federal practice and in many U.S. states. It can be any communication notifying the party to whom it is addressed of an alleged fault which resulted in damages, often expressed in amount of money the receiving party should pay/reimburse.
Stock appreciation rights (SARs) is a method for companies to give their management or employees a bonus if the company performs well financially. Such a method is called a 'plan'. SARs resemble employee stock options in that the holder/employee benefits from an increase in stock price. They differ from options in that the holder/employee does not have to purchase anything to receive the proceeds. They are not required to pay the (options') exercise price, but just receive the amount of the increase in cash or stock.
MIND CTI Ltd. is a global provider of billing and customer care solutions for voice, data, video and content services. Headquartered in Yokneam, Israel; the company also has offices in Silver Spring, MD, in the United States of America, Iaşi, in Romania, and Suceava in Romania.
Bradford P. Campbell was the Assistant Secretary for Employee Benefits Security of the United States Department of Labor (DOL), the official in charge of the Employee Benefits Security Administration (EBSA). Mr. Campbell was nominated by President George W. Bush as Assistant Secretary on May 3, 2007, and was unanimously confirmed by the United States Senate on August 3, 2007. He held the position until January 20, 2009. Prior to his confirmation as Assistant Secretary, Mr. Campbell had served as Acting Assistant Secretary since October 30, 2006 and as EBSA's Deputy Assistant Secretary for Policy since March 5, 2004.
Fairfield Greenwich Group is an investment firm founded in 1983 in New York City. The firm had among the largest exposures to the Bernard Madoff fraud.
Grant & Eisenhofer P.A. is a national law firm that focuses on securities and complex litigation, corporate governance, shareholder activism, false claims/whistleblower, antitrust, bankruptcy, consumer protection, environmental disaster, public entity, intellectual property, complex pharmaceutical and medical device, birth injury litigation, and civil rights cases. G&E represents public and private institutional investors, whistleblowers, and consumers who seek restitution for damage caused by fraud, greed or mismanagement by corporations and major accounting firms.
Honest services fraud is a crime defined in 18 U.S.C. § 1346, added by the United States Congress in 1988, which states "For the purposes of this chapter, the term scheme or artifice to defraud includes a scheme or artifice to deprive another of the intangible right of honest services."
LVRC Holdings v. Brekka 581 F.3d 1127, 1135 is a Ninth Circuit Court of Appeals Decision that deals with the scope of the concept of "authorization" in the Computer Fraud and Abuse Act. The major finding of this case is that even if an employee accesses a computer for an improper purpose, such as one that violates the duty of loyalty to their employer, the employee remains authorized to access the computer until the employer revokes the employee's access. The findings of this case were upheld by another Ninth Circuit decision in United States v. Nosal, 676 F.3d 854 and are the current law in this circuit.
An Employee Stock Ownership Plan (ESOP) in the United States is a defined contribution plan, a form of retirement plan as defined by 4975(e)(7)of IRS codes, which became a qualified retirement plan in 1974. It is one of the methods of employee participation in corporate ownership.
Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, 577 U.S. ___ (2016) was a case in which the Supreme Court of the United States clarified subrogation procedures under the Employee Retirement Income Security Act ("ERISA"). The Court held that healthcare plan fiduciaries cannot demand reimbursement for medical benefits from a plan member's general assets if the beneficiary's general assets cannot be traced back to the original payment from the fiduciary. Although some scholars suggested that the court's ruling would have little impact, others suggested the case places "significant restrictions" on the rights of ERISA benefit plan providers.
Peiffer Wolf Carr & Kane, APLC, is an American law firm founded in 2013. This nationwide litigation law firm has offices in New Orleans, Cleveland, San Francisco, Los Angeles, St. Louis and upstate New York. Peiffer Wolf Carr & Kane, APLC is a nationwide litigation law firm that represents individuals and entities who have been the victims of negligence, fraud or the misconduct of powerful interests.
Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning, 578 U.S. ___ (2016), was a United States Supreme Court case in which the Court held, 8–0, that the jurisdictional test established by §27 of the Securities Exchange Act of 1934 is the same as 28 U.S.C. § 1331's test for deciding if a case "arises under" a federal law.
