Lawsuit over U.S. Bancorp pension headed to Supreme Court

The lawsuit against U.S. Bancorp for mismanaging its pension, which is headed for the U.S. Supreme Court, originated in our backyard, but that's not the reason to pay attention to this one.

The suit — a multifaceted, legal oddball — has dragged on for years.

It is generally about the rules and the remedies baked into the Employee Retirement Income Security Act going back to the 1970s, but this suit has one very quirky feature.

It alleges harm from improperly managing a pension fund, even though no U.S. Bank pensioner has ever come close to missing a full check.

An analysis of the issues led to this laugh-out-loud headline in the industry publication Plansponsor: "Supreme Court Asked If Well-Funded Pensions Can Harm Participants."

If they sleep so soundly they miss their golf tee times.

It seems a little like suing the tour bus operator because you are sort of bugged after the driver drove briefly on the shoulder of the road, 6 feet from the guardrail.

After a couple of days of digging through the documents — even court decisions that went U.S. Bank's way — it has become easier to see why the Supreme Court might want to address this one.

It's a class-action case, but the retiree listed on the case is James J. Thole, who lives in Missouri.

Thole was due to get $2,198 a month. No one disputes that he or any of the other beneficiaries ever missed getting the expected amount.

With the case still dragging on, U.S. Bank declined to comment, as you would expect.

It's important to note, however, that Minneapolis-based U.S. Bancorp had voluntarily stuck a bunch of money in this fund since the bad markets of a decade ago.

Without a Great Recession, maybe none of this would have ended up in court. According to the case file, the U.S. Bank pension fund at issue started 2008 overfunded and ended that year, because of precipitous declines in the stock market, well underwater.

A lot of that kind of thing was going around back in 2008. Yet here, the plaintiffs argued, U.S. Bank unwisely took an eggs-all-in-one-basket approach, investing everything in stocks. Worse, some of the money had been invested with U.S. Bank-affiliated funds.

The plaintiffs have yet to really get a day in court, as the suit has been tossed out.

One court didn't like U.S. Bank's last legal argument as much as it liked its own, yet still gave U.S. Bank what it wanted. Long after this whole thing had started, the pension fund had fully recovered and was now overfunded, the court reasoned, so the whole claim was moot.

This court made a few other observations that pointed to how odd this all is, such as how U.S. Bank generated $11.4 billion in cash from operations in 2013 and had roughly $62 billion in liquidity to cover unexpected expenses.

The Eighth Circuit Court of Appeals later sided with U.S. Bank, too, although with what appears to be a slightly different argument. That led the plaintiffs to try to get it before the U.S. Supreme Court.

One reason this suit is still getting pushed ahead might be the plaintiffs' lawyers' commitment to justice, although it seems more likely their dogged pursuit is driven by a hope to finally get paid.

When running this by a law-school professor who finds this case of interest — even though ERISA law isn't his area of expertise — he pointed out that it is far too easy to make fun of lawyers going after their fees. Without provisions in the law that lets lawyers get paid for working for a bunch of middle-class retirees, they'd never get into court against the likes of U.S. Bank. Few consumers ever would.

One line jumps out in the document the federal government filed in support of the appeal to the high court, noting that "whether a participant or beneficiary in an overfunded … plan may maintain a suit for breach of fiduciary duty is an important question that arises with some frequency."

Here's where this thing gets interesting.

The plaintiffs' explanation for why U.S. Bank managed the fund the way it did does not pass the test of common sense. Yet it's also true that plans are usually managed with a mix of asset classes.

As the government lawyers argued in their brief asking the Supreme Court to take it up, the Court of Appeals acknowledged the right to sue for breach of fiduciary duty if a plan became underfunded, as was once the case here, based on the increased risk of someday not getting what's coming to them.

"The risk of underpayment does not vanish the instant a plan crosses the threshold from underfunded to overfunded," the government argued, in its brief.

The right to get the court to step in over a breach of fiduciary duty can't evaporate because of a bull market.

What this really boils down to is whether the wrong way to do things when running a pension is still wrong, even if no one looks likely to lose any money.