Corporate Governance Expert Witness Testimony Allowed

Plaintiffs sued defendant for breach of duty of loyalty related to Plans under the Employee Retirement Income Security Act of 1974.  The plaintiffs hired a Corporate Governance Expert Witness to provide expert witness testimony.  The defendants filed a motion to exclude the testimony of this witness, which was denied by the court.


This is another opinion in a case we reported on yesterday.

Facts:  This case (Wildman et al v. American Century Services, LLC et al – United States District Court – Western District of Missouri – May 22, 2018) involves a claim under the Employee Retirement Income Security Act of 1974 (ERISA).  The plaintiffs, former employees of the defendants, allege that the defendants breached their duties of loyalty and caused the retirement plan to pay excessive fees.  The plaintiffs also allege that the defendants maintained a list of investment options that consisted only of proprietary funds owned by the defendants.  These funds underperformed when compared to other funds in the marketplace and charged higher fees.  The plaintiffs hired Mr. Roger Levy (Corporate Governance Expert Witness) to provide testimony.  The defendants filed a motion to exclude the expert opinions of Roger Levy.

Discussion:  Mr. Levy’s testimony involves prudent retirement plan practices.  He has 30 years of experience in the fiduciary consulting industry, which includes consulting with retirement plan sponsors and investment advisors.  His education includes a masters of laws degree and is an Accredited Investment Fiduciary Analyst.  In addition, he has published many articles on the topic.

Mr. Levy states that the fiduciaries of the plan did not act in a prudent matter, based on his experience in the industry and he provides examples of conduct by the defendants that do not meet the standard of care.

The defendants wish to exclude Mr. Levy’s testimony by because: 1) his opinions are legal conclusions; 2) he is not qualified to provide an opinion on the standard of care in this case; 3) he provides baseless opinions; and 4) some of his opinions contradict the facts on record.

The court first opines that none of the opinions espoused by Mr. Levy are legal conclusions.

The defendants argue that Mr. Levy’s testimony should be excluded because he lacks the relevant experience with the practices of fiduciaries of a retirement plan for a mutual fund company.  The plaintiffs respond that such a specialty does not exist because all ERISA fiduciaries are subject the to the same standard of care.  The court agrees with the plaintiffs and opines that Mr. Levy is qualified to provide expert witness testimony in this case.

The defendants also argue that Mr. Levy’s opinions are baseless.  The plaintiffs state that the basis of his arguments are his extensive experience in the industry, to which the court agreed.  Last, regarding the defendants arguments that Mr. Levy’s opinions are contrary to the record, the court opines that these arguments go to the weight of the evidence, and not their admissibility.

Conclusion:  The motion to exclude the expert witness testimony of Mr. Roger Levy is denied.