The Supreme Court on Monday put companies managing 401(k) retirement plans on notice they have a continuing duty to be judicious on plan investment decisions, adding protections for the worker savings plans.
A unanimous court said plan administrators must continue "to monitor trust investments and remove imprudent ones. This continuing duty exists separate and apart from the trustee’s duty to exercise prudence in selecting investments at the outset."
The case involves investors in Edison International 401(k) offerings who claimed the Rosemead, Calif., energy holding company violated its fiduciary duties by buying retail mutual funds when nearly identical products were available through less-expensive institutional-class funds. It came to the court on the issue of calculating how long investors had to bring their lawsuit.
The court’s opinion, written by Justice Stephen Breyer, expands the time limit for investors to sue by saying a six-year deadline isn’t automatically set the moment the investments are purchased. It also addressed administrator responsibilities, setting standards that legal experts said could reverberate in the retirement-savings industry.
"This will be of tremendous importance in protecting the interests of retirees going forward," said Jerome Schlichter, the St. Louis attorney at Schlichter Bogard & Denton LLP who led the class-action case on behalf of Edison employees.
John Donovan, a partner in Boston for Ropes & Gray LLP who wasn’t involved in the case, said the opinion is a clear signal that company plans "can’t go on autopilot."
The high court rejected a ruling by the Ninth U.S. Circuit Court of Appeals in San Francisco. The appeals court had thrown out the suit after finding it was filed after a six-year time limit expired. The case goes back to a lower court, which will review how often the administrator must re-examine the investments and how to calculate the deadline.
"We fear the court has invited litigation into an arena that is already rife with regulatory burden and litigation exposure," Linda Kelly, a senior vice president and general counsel at the National Association of Manufacturers, said in a written statement. The group filed a court brief supporting Edison.
Lauren Bartlett, a spokeswoman for Edison International and Southern California Edison, in a written statement said the ruling "does not find any violation by the companies or plan fiduciaries. The opinion also does not question our loyalty to plan participants."
More than a dozen companies, including Boeing Co. and Massachusetts Mutual Life Insurance Co., have faced similar claims.
In 13 lawsuits over the years, Mr. Schlichter has pushed large U.S. corporate 401(k) plans to reduce expenses and improve fee disclosures. He has settled eight of those suits, including the largest settlement announced earlier this year, in which Bethesda, Md., defense firm Lockheed Martin Corp. agreed to pay $62 million.
While Monday’s ruling established principles that plan administrators must follow as fiduciaries—to act with "care, skill, prudence and diligence"—the eight-page opinion left lower courts to sort out what they might mean in application.
Still, consumer advocates cheered.
"It gives an added ability to consumers to sue. When plan fiduciaries know that’s a possibility they’ll do what they should have been doing all along," said Mary Ellen Signorille, a senior attorney with the AARP Foundation, which filed a friend-of-the-court brief supporting the investors.
The Brotherhood of Locomotive Engineers and Trainmen (BLET) announced today that it strongly opposes S. 650, the Railroad Safety and Positive Train Control Extension Act, which is expected to be voted on in the Senate Committee on Commerce, Science & Transportation within hours.
Positive Train Control (PTC) is a technology that will prevent most train-to-train collisions in the rail industry, and was mandated by the Rail Safety Improvement Act of 2008. The Deadline for implementation of PTC technology is December 31, 2015, and when it is completed, the technology will cover nearly 60,000 miles of track. S. 650 proposes extending the deadline for the implementation of PTC from the current deadline to December 31, 2020, with the possibility of an additional two-year extension to 2022.
In addition to the blanket extension, the legislation prohibits the Federal Railroad Administration (FRA) from ever requiring railroads other than Class I and passenger/commuter railroads to have PTC if “the railroad does not choose to implement positive train control.”
Additionally, it mandates that the FRA must respond to a railroad application for extension within 10 days, which makes it nearly impossible for FRA to perform the sort of analysis required to determine whether the applicant truly cannot comply with the law, and would effectively grant the railroads the requested extension with little or no proof of legitimate need.
Secretary of Transportation Anthony Foxx said the Obama administration is opposed to extending the PTC implementation deadline, testifying before the House Transportation and Infrastructure Committee in early February that the U.S. Department of Transportation (DOT) continues to hold the “industry’s feet to the fire in getting PTC done as quickly as possible,” as opposed to allowing a blanket extension. In spite of that, certain railroads have convinced their “friends” in Congress to propose just that.
“Not all railroads have treated PTC the same, but contrary to statements made by certain railroads, Positive Train Control is not a new technology,” BLET National President Dennis R. Pierce said. “It has been around in some form for more than 40 years, and has been on the National Transportation Safety Board’s most wanted technology list since 1971.
“The bottom line is that the technology saves lives, both in the railroad workplace and with the public in general. On the heels of the horrific railroad accident at Chatsworth, California that claimed 27 lives, Congress mandated in 2008 that PTC technology be implemented by the end of 2015. This latest push by Congress to now allow up to a 7-year delay raises the question of just who Congress works for – their large corporate benefactors or the general public. Those pushing this extension have obviously forgotten the multitude of avoidable railroad tragedies and resulting loss of life much quicker that I will ever be able to,” said President Pierce.
“Since 2005, the NTSB has completed 16 investigations of railroad accidents that could have been prevented or mitigated with Positive Train Control,” BLET Vice President & National Legislative Representative John Tolman said. “These 16 accidents claimed 52 lives and injured 942 people; the damages totaled hundreds of millions of dollars; and yet certain railroads have spent the last seven years dragging their feet on the implementation of PTC.
“Each death caused by the delay of PTC’s implementation is one too many, and Congress capitulating to the railroads for this broad extension is most certainly not in the public interest,” Tolman said.
CLEVELAND, February 14 — Progressive Railroading is conducting an informal poll this week asking, "Do you think all freight trains should be required to have a minimum crew size of two people?" This poll follows the introduction of the Safe Freight Act (H.R. 3040) in Congress, a piece of legislation backed jointly by the BLET and SMART Transportation Division (former UTU) that would require two person train crews.
H.R. 3040 would mandate that "no freight train or light engine used in connection with the movement of freight may be operated unless it has a crew consisting of at least 2 individuals, one of whom is certified under regulations promulgated by the Federal Railroad Administration as a locomotive engineer pursuant to section 20135, and the other of whom is certified under regulations promulgated by the Federal Railroad Administration as a conductor pursuant to section 20163."
For more information regarding the Safe Freight Act, please visit:
BLET members, retirees, the BLET Auxiliary, and all concerned family members are being urged to contact their member of Congress and to ask for their support of H.R. 3040. To find your member of the U.S. House, go to www.house.gov and enter your Zip Code.
You can also cast your vote in Progressive Railroading’s poll here:
BLET/SMART–TD statement on Positive Train Control, crew size following fatal Amtrak derailment in Philadelphia
(The following is a joint statement by Dennis R. Pierce, National President of the Brotherhood of Locomotive Engineers and Trainmen, and John Previsich, President, SMART Transportation Division, regarding questions that have arisen since the fatal Amtrak derailment in Philadelphia on May 12, 2015.)
CLEVELAND, May 19 — Members of BLET’s Safety Task Force and SMART Transportation Division’s National Safety Team, in addition to representatives from the Brotherhood of Maintenance of Way Employees Division of the Teamsters Rail Conference (BMWED), are working with the National Transportation Safety Board (NTSB) to assist in the investigation of the catastrophic May 12 derailment of Amtrak Train 188.
Significant progress has been made in understanding how the accident occurred on May 12. That portion of the investigation is not yet complete, however, and even more work needs to be done to determine why the events of that tragic night transpired the way they did.
BLET and SMART–TD do not make official comments about any ongoing NTSB investigation. Due to the number of press inquiries concerning issues not under investigation, however, we are providing the following information on why Amtrak trains on the Northeast Corridor are manned by a lone engineer in the control cab and why Positive Train Control (PTC) has not been installed on the Corridor. The answers to both questions begin with the United States Congress.
Why a One-Person Train Crew?
In 1981, Congress passed legislation (the Northeast Rail Service Act of 1981) that ended the previous Conrail requirement that there be a second crew member in the control cab of commuter rail trains on the Northeast Corridor. Armed with that legislative precedent — and mindful of where its funding originates — Amtrak has since 1983 refused to crew Northeast Corridor trains with more than one employee in the cab – the locomotive engineer. Although BLET and SMART–TD have steadfastly maintained that there should be two crew members in the cab of all trains to ensure public safety, only Congress can change the 1981 legislation that reduced crew size on the Northeast Corridor. But this is only one piece of a very large, complex puzzle.
Why No Positive Train Control?
On the heels of another catastrophic railroad accident in Chatsworth, CA, the federal government mandated in 2008 that Positive Train Control (PTC) be put in effect by the end of this year. That was seven years ago. Even with that mandate in place, and with the exception of some railroads such as BNSF Railway, the industry at large has spent the interim finding reasons to avoid implementing PTC technology. They have created the situation about which they all now complain — they say they cannot meet the December 31, 2015 deadline. Each death caused by the delay of PTC implementation is one too many, yet Congress is preparing to consider a blanket 5-year extension to 2020. This is most certainly not in the public interest.
Since 2005, the NTSB has completed 16 investigations of railroad accidents that could have been prevented or mitigated with PTC. These 16 accidents claimed 52 lives — many being BLET and SMART–TD members — and injured 942 people, with damages totaling hundreds of millions of dollars. NTSB has publicly stated that the accident on May 12, 2015 was also PTC preventable. There is no disagreement over the value of PTC technology.
That said, there is no technology available today that can ever safely replace a second crew member in the cab of the locomotive. The only thing on a locomotive that is not a machine is the crew. The uncontrolled external environment in which trains are operated along with regulatory and operational demands of a safe transportation service demand a crew of at least two fully trained and qualified employees in the control cab of every train. PTC is only a safety overlay that ensures a safer operation, and no technology can replace the level of safety provided when two crew members are on board and can serve as a check and balance to one another.
Even with all the safety-related technology that the government has mandated on commercial airlines, the public would never accept an airline operation with a single person in the cockpit. There is no reason that rail employees and rail passengers’ lives should be viewed any differently.
Contrary to what some in government may say, the only place that crew size and PTC do connect is when it comes to funding. That is especially true in the case of Amtrak, because the government has woefully underfunded Amtrak since its inception. Additional crew members and new technology both cost money, and so long as those in Congress see fit to underfund the operation, they undermine their own mandate and shortchange the safety of the traveling public.
Cameras Are Not the Answer
Statement by National President Dennis R. Pierce
CLEVELAND, December 13 – Dennis Pierce, National President of the Brotherhood of Locomotive Engineers and Trainmen, a Division of the Teamsters Rail Conference, issued the following statement concerning the suggestion in the media in the aftermath of the tragic Metro North accident that placing cameras in the cabs of all locomotives will somehow be a deterrent to fatigue:
“In the wake of the horrific accident on Metro North Commuter Railroad, there have been several public calls for the installation of inward facing cameras in the cabs of all locomotives, which have suggested that videotaping locomotive engineers in the workplace will somehow reduce fatigue in the railroad industry. Nothing could be further from the truth, or could lead us further away from preventing another tragic accident. Cameras are essentially an accident investigation tool; they are not an accident prevention tool. Installation of cameras will provide the public nothing more than a false sense of security.
“There are many factors that contribute to fatigue in our industry, but one thing is certain; locomotive engineers are true professionals who do their best to report for work fully rested. The fact of the matter is that engineers do not intentionally report to work fatigued by their own choice.
“If we are to learn from fatigue related accidents in the railroad industry we must look at the actual causes of fatigue and not assume that training a camera on a fatigued engineer will somehow deter him or her from being tired, an assumption that borders on absurdity as it is not based in medical science. The only things in the cab of a moving locomotive that are not machines are the locomotive engineers and trainmen assigned to that locomotive, who are human beings.
“Engineers already place life and limb at risk when they are compelled to work tired, and filming them provides no deterrent to the risks we already face. To the contrary, these cameras will create yet another source of distraction from the engineer’s work tasks. More than a century of research establishes that monitoring workers actually reduces the ability to perform complex tasks, such as operating a train, because of the distractive effect. But there are steps that can be taken that will truly reduce the effect of fatigue on safety in the railroad industry, and safeguard against those occasions where fatigue overwhelms an engineer while operating a moving locomotive.
“No locomotive engineer who attempts to call off from working due to fatigue should be subjected to disciplinary retaliation for so called “poor attendance.” The majority of the nation’s engineers in freight service, who operate side by side on the same tracks as passenger and commuter engineers, work unscheduled jobs. They are “on call” 24/7, 365 days a year and receive as little as an hour and half notice to report to work a twelve hour shift, in many cases with no reliable advance predictability as to their reporting time and after already being awake for twelve to sixteen hours. No camera can realistically affect the human fatigue created by such an unpredictable work schedule.
“I call today on all railroads that are currently suspending and/or terminating engineers for taking time off due to fatigue, because they cannot with certainty be rested for an unknown on-duty time, to stop this counter intuitive behavior immediately. Pressuring engineers to work tired through threat of the loss of their jobs is contributing to fatigue in the railroad industry and all but ensures that another fatigue related accident will happen.
“Equally important is the implementation of Positive Train Control technology and I again call on the railroad industry, the Federal Railroad Administration and Congress to see that this technology is implemented before another avoidable accident occurs. This technology would prevent a tired engineer from entering any speed restricted area too fast, and would prevent a fatigued engineer from passing a meeting point with a crowded passenger or commuter train. How many lives must be lost, and what cost in human life will this great nation tolerate, before the nations’ railroads are required to take the steps available and necessary to truly protect their employees and the public in general from these avoidable accidents?
“The true test of any solution is in its ability to prevent an accident. On the one hand, Positive Train Control will prevent these horrific accidents and the toll they take on those affected. On the other hand, should another accident occur due to Congress delaying the now required 2015 implementation of PTC, a camera in the cab would merely capture an image of the avoidable carnage that follows, but only in the unlikely event that the camera and recording apparatus is not destroyed in the accident. The problem that confronts us is obvious, and cameras in the cab are no solution to that problem.”