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In re Wilmington Trust Corp. Erisa Litig.

United States District Court, D. Delaware

May 3, 2013

IN RE: WILMINGTON TRUST CORP. ERISA LITIGATION

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[Copyrighted Material Omitted]

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Joseph J. Bodnar, Esquire of Law Offices of Joseph J. Bodnar, Wilmington, Delaware, Counsel for Plaintiff. Of Jacob A. Goldberg, Esquire and Gerald D. Wells, III, Esquire of Faruqi & Faruqi, LLP; Edwin J. Mills, Esquire and Michael J. Klein, Esquire of Stull, Stull & Brody; and, Gregory M. Egleston, Esquire of Egleston Law Firm.

Robert Scott Saunders, Esquire, Stephen Dale Dargitz, Esquire, and Daniel R. Ciarrocki, Esquire of Skadden, Arps, Slate, Meagher & Flom, Wilmington, Delaware, Counsel for Defendant. Of Michael J. Prame, Esquire, Sarah A. Zumwalt, Esquire, and Julia E. Zuckerman, Esquire of Groom Law Group, Chartered.

OPINION

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MEMORANDUM OPINION

SUE L. ROBINSON, District Judge.

I. INTRODUCTION

On December 20, 2010, plaintiffs Karen Outten (" plaintiff Outten" ) and James Bradford (collectively " plaintiffs Outten and Bradford" ), individually and on behalf of all others similarly situated, instituted an Employee Retirement Income Security Act (" ERISA" ) class action against Wilmington Trust Corporation, et al. [1] (D.I. 1 at ¶ 1). On January 31, 2011, plaintiff Julie Gray (" plaintiff Gray" ), on behalf of herself and a class of persons similarly situated, instituted an ERISA class action against Wilmington Trust Corporation, et al. [2] (D.I. 1 at ¶ ¶ 8-20 in 11-00101) On

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February 28, 2011, plaintiff Gray filed a motion for consolidation and appointment of co-lead and liaison counsel. (D. I. 23) Plaintiffs Outten and Bradford filed a competing motion for consolidation and appointment of lead counsel on March 14, 2011. (D.I. 26) On March 15, 2012, the court ordered the cases consolidated and appointed Interim Lead and Co-Lead counsel. (D.I. 35; D.I. 36)

On May 25, 2012, plaintiffs Julie Gray, Karen Outten, and James Bradford [3] (collectively " plaintiffs" ) filed an amended consolidated complaint (" complaint" ) against all defendants [4] (collectively " defendants" ). (D.I. 38) Pending before the court is defendants' Rule 12(b) motion to dismiss plaintiffs' consolidated complaint for breach of ERISA's fiduciary duties. (D.I. 42) The court has jurisdiction over this action pursuant to ERISA § 502(e)(1), 29 U.S.C. § 1132(e)(1).

II. BACKGROUND

A. Parties

Plaintiffs Gray and Outten are residents of the State of Delaware. Plaintiff Bradford is a resident of the State of Pennsylvania. Each plaintiff maintained an investment in Wilmington Trust stock in their individual account in the Wilmington Trust Company Thrift Savings Plan (" Plan" ) during the class period. (D.I. 38 at 22-24)

Defendant Wilmington Trust Corporation (" WT Corp" ) was a financial holding company that provided regional banking services throughout the mid-Atlantic region, as well as wealth advisory services and corporate client services to clients in the United States and overseas. [5] WT Corp was founded in 1901 and was headquartered in Wilmington, Delaware. Plaintiffs allege that WT Corp was a de facto fiduciary under 29 U.S.C. § 1002(21)(A) and through the doctrine of respondeat superior. (D.I. 38 at 25-34)

Defendant Wilmington Trust Company (" WT Bank" ) was the wholly-owned bank subsidiary of WT Corp. WT Bank sponsored the Plan, was the Plan administrator, a named fiduciary, and served as the Plan's trustee. WT Bank was a named fiduciary of the Plan. (D.I. 38 at ¶ 28)

Defendant Wilmington Trust Employee Benefit Administrative Committee (the " Committee" ) managed and administered the Plan and its assets. The Committee acted as a fiduciary of the Plan. (D.I. 38 at ¶ 35)

Defendant Gibson served as the Chairman of the Committee from December 31, 2006 until May 13, 2011 (shortly before the closing of the M& T Bank Corporation (" M& T" ) acquisition of WT Corp). He

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also served at relevant times as WT Corp's Chief Financial Officer (CFO), Chief Operating Officer (COO), and Executive Vice President. (D.I. 38 at ¶ 36)

Defendant DePorte served as a member of the Committee from December 31, 2006 until May 13, 2011. She also served as senior vice president of Personal Financial Services at the WT Corp during the class period. (D.I. 38 at ¶ 37)

Defendant DiGregorio served as a member of the Committee from December 31, 2006 until May 13, 2011. He also served as Executive Vice President of WT Corp and of WTC, and as Secretary and General Counsel of WT Corp and WT Bank, during the class period. (D.I. 38 at ¶ 38)

Defendant Farrell served as a member of the Committee from December 31, 2006 until May 13, 2011. He also served as Executive Vice President of WT Corp and WT Bank, and had oversight of WT Bank's Corporate Client Services Department during the class period. (D.I. 38 at ¶ 39)

Defendant Howard served as a member of the Committee from December 31, 2006 until May 13, 2011. She also served as Vice President, Human Resources for WT Corp during the class period. (D.I. 38 at ¶ 40)

Defendant Rakowski served as a member of the Committee from December 31, 2006 until May 13, 2011. He also served as WT Corp's Controller and Senior Vice President since 2006. (D.I. 38 at ¶ 41)

Defendant Sparks served as a member of the Committee from December 31, 2006 until May 13, 2011. He also served as Vice President, Corporate AML Officer & Division Manager of Client Operations during the class period. (D.I. 38 at ¶ 42)

Defendant Butler served as a member of the Committee from December 31, 2006 until May 13, 2011. He also served as Vice President in charge of tax services for Wilmington Trust ...


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