Category Archives: ERISA Litigation Index

8th Circuit Oral Arguments Heard in Tussey v. ABB, Inc.

Today, September 24, 2013, the oral arguments in the appeal of Tussey v. ABB, Inc. were heard in the 8th Circuit Court of Appeals. Because they were heard in downtown St. Louis, where I am based, I attended.

The Panel

The judges that heard the oral arguments and will decide the case are:

I’ve linked to each judge’s Wikipedia page for more information. (Most interesting facts: Judge Bright was appointed by President Johnson in 1968 and Judges Bye and Bright are both from North Dakota!).

It is also worth pointing out that Judges Riley and Bright were 2 of the 3 judges that decided Braden v. Wal-Mart Stores, Inc. The Braden case is one of the more important excessive fee case decisions for plan participants. There, the panel reversed a district court decision throwing the case out and found that the claims of excessive fees were plausible enough for the case to go forward. The case ultimately settled for $13.5 million.

 The Lawyers

Thomas E. Wack from the law firm of Bryan Cave represented ABB, Inc. and Jonathan Hacker of O’Melveny & Myers represented Fidelity Investments. (by way of background, Mr. Hacker’s name has appeared on appellate briefs in many of the excessive fee cases, including Hecker v. Deere & Co., Renfro v. Unisys Corp., and Tibble v. Edison Int’l, each time representing either a plan sponsor or a service provider)

Representing the plaintiffs was Jerome J. Schlichter of Schlichter, Bogard & Denton. David Ellis represented the Secretary of Labor Thomas E. Perez who filed an amicus brief on behalf of the plaintiffs.

The Oral Arguments

For those who are inclined, the 8th Circuit has uploaded the audio of the oral arguments. To download the audio, click here (on my Mac I had to right click to download). To play the audio in your browser, click here.

Like I’ve said before with the Abbott case, I’m not going to get into the game of tea leaf reading. Oral arguments are notoriously bad indicators of outcomes in cases. In fact, in my personal experience with the 8th Circuit in a non-ERISA case, I was convinced sitting in the gallery that we would ultimately win an issue based on the favorable questions asked at argument. When the opinion was published, we didn’t. Lesson learned.

That being said, I thought the judges today asked tough questions of both sides. Topics covered included whether an IPS is a plan document, when is the 6 year statute of limitations triggered, what is the proper measure of damages for a performance claim, how much discretion should a plan fiduciary have, what exactly is float, and whether target data funds are better than balanced funds because they are dynamic rather than static. It wasn’t clear that the judges agreed with one side completely, or the other. Instead, the judges seemed to still be making up their minds as they sought additional information outside the briefs.

Our Thoughts

Relevant to our readership, the Department of Labor attorney made a few arguments worth noting. First, under the Field Assistance Bulletin 2002-3, all fiduciaries have an obligation to understand and negotiate over float. And second, having an Investment Policy Statement is consistent with prudent fiduciary behavior and that they should be considered plan documents and thus binding on plan fiduciaries. These are two common compliance issues for many retirement plans and should be addressed by all fiduciaries.

Finally, it is worth noting the particular interest the court took in the case. Only 30 minutes per side was scheduled, but the court repeatedly allowed additional time to all parties, with oral arguments going a full hour and 17 minutes plus.

So when will we see a decision? Sometimes as short as 6 weeks, sometimes as long as 6 months (or more). It all depends on the complexity of the case and the workload of the court on other cases. If I were a betting man, I’d say we might see an opinion before Christmas.

Breaking: Class Cert Granted in Spano v. Boeing Co.

In light of the recent 7th Circuit decision in Abbott v. Lockheed Martin Corporation, the district court in Spano v. Boeing Company has granted the Plaintiffs’ amended motion for class certification. Spano is one of the original excessive fee cases filed in 2006.

(Read about the Abbott decision here: Victory for Plaintiffs: 7th Circuit Allows Class Certifications for Excessive Fee Cases)

As many of you are aware, it was the 2011 decision in the Spano appeal to the 7th Circuit that for a time put in doubt the exact standard for certifying a class in an ERISA fiduciary breach case in the 7th Circuit.

Plaintiffs’ Allegations

The court summarized the Spano plaintiffs’ allegations as:

  • (1) defendants caused the Plan to pay unreasonable administrative fees to its recordkeeper CitiStreet;
  • (2) defendants imprudently included, among the Plan’s 11 investment options, four mutual funds, when superior institutional investment products were available;
  • (3) that these same four mutual funds charged excessive fees which included kickbacks to CitiStreet in the form of revenue sharing;
  • (4) that among these four mutual options, the Technology Fund was included in the Plan even though it was undiversified and imprudent for a retirement plan, and the Small Cap Fund was included even though it failed defendants’ standards of prudence, because it provided additional revenue sharing fees to CitiStreet; and
  • (5) that the Boeing Company Stock Fund imprudently held high levels of low-yielding cash, allowing State Street to place cash in its own funds and receive multiple layers of fees.
The Court’s Decision

The court keyed in on what was different this time around, as compared to the class certification that was overturned earlier: (1) the breadth of the defined classes has been limited to a specific time period, not all participants, past, present, and future and (2) each of the claims has been broken into subclasses, rather than one gigantic class, with specific evidence that the class reps seeking to represent that subclass meets the adequacy and typicality tests.

The decision reads very matter of fact despite the last few years of upheaval in this area. Citation to the Abbott decision was limited to just the subclass for the Technology Fund claim because it used a benchmark to define the subclass. The court determined that each of the 5 subclasses met the standards for class certification under Rule 23, including 23(b)(1)(A) which allows a non-opt out class. The following subclasses were granted:

 

  • Administrative Fee claim and class: All participants or beneficiaries of the Boeing Voluntary Investment Plan, excluding the Defendants, members of the Defendant committees, and the Boeing directors, who had an account balance at any time between September 28, 2000 and December 31, 2006, as all participants during that time paid recordkeeping fees.
  • Mutual Fund Subclass: All participants or beneficiaries of the Boeing Voluntary Investment Plan, excluding the Defendants, members of the Defendant committees, and the Boeing directors, who, between September 28, 2000 and December 31, 2005, invested in any of the Plan’s mutual funds, since each mutual fund during this time were laden with imprudently excessive fees.
  • Small Cap Fund Subclass: All participants or beneficiaries of the Boeing Voluntary Investment Plan, excluding the Defendants, members of the Defendant committees, and the Boeing directors, who, between September 28, 2000 and December 31, 2005, invested in the Small Cap mutual fund in the Plan.
  • Technology Fund Subclass: All participants or beneficiaries of the Boeing Voluntary Investment Plan, excluding the Defendants, members of the Defendant committees, and the Boeing directors, who, between September 28, 2000 and December 31, 2005 invested in the Plan’s Technology Fund and whose investment in the Technology Fund underperformed that of the diversified domestic equity markets as represented by the Standard and Poor’s 500 Index Fund minus 5 basis points for investment management.
  • Company Stock Fund Subclass: All participants or beneficiaries of the Boeing Voluntary Investment Plan, excluding the Defendants, members of the Defendant committees, and the Boeing directors, who, between September 28, 2000 and December 31, 2006 invested in the Plan=s Boeing Company Stock Fund and whose investment in the Boeing Company Stock Fund underperformed that of Boeing Company Stock.

Our Thoughts

This is another victory for plan participants, like the 7th Circuit decision in Abbott. I frankly did not expect a decision so soon. Just recently, the 7th Circuit denied a motion for rehearing in Abbott, which leaves the defendants there with two options: appeal to the Supreme Court or go back to the district court and go to trial.

For the defendants in Spano, the path is less clear. The window to appeal this decision on an interlocutory basis under Rule 23(f) is quite short. Additionally, there still remains pending summary judgment motions. Just because class certification has been granted here, doesn’t mean these are viable claims for these plaintiffs. That decision is yet to be made by the court. This differs from the Abbott case where there, the court already ruled on the summary judgment motion, finding that the claims viable enough to proceed to trial.

It’s been an exciting few months for those who follow these issues closely. Unless something happens before then, the next bit of news will be the oral arguments scheduled in Tussey v. ABB, Inc. before the 8th Circuit this coming Tuesday September 24. As they are being held here in St. Louis, I will be attending in person.

ERISA Class Action Filed Against J.P. Morgan Over Defunct American Century SVF

J.P. Morgan Retirement Plan Services, and related entities including J.P. Morgan Chase & Co., have been hit with an ERISA class action by participants who invested in the now defunct American Century Stable Asset Fund (“ACSAF”). The name of the case is Knee v. J.P. Morgan Retirement Services and it was filed two days ago in the Southern District of New York.

The complaint was filed by two plaintiffs who are participants in two different 401(k) plans that offered the ACSAF. The plaintiffs invested in that fund and allege losses recoverable under ERISA because of self-dealing by J.P. Morgan.

Factual Background Allegations

  • JP Morgan (and related entities hereafter “JPM”) has been and remains a significant minority shareholder in American Century Companies the parent of American Century Investments (“ACI”).
  • By 1998, JPM acquired a 50% interest in American Century’s recordkeeping arm Retirement Plan Services, Inc. (“RPS”). They shared the cost of operating RPS.
  • In 2003, a Revenue Sharing Agreement was signed by American Century and JPM giving full control over RPS to JPM. This is the entity we all know now as JP Morgan Retirement Plan Services (“JPMRPS”).
  • Under the Revenue Sharing Agreement and thereafter, JPMRPS continued to provide services to both JPM and ACI retirement investment product funds and the 401(k) plan sponsors and participants who invested in those funds.
  • JPMRPS and the other JPM entities were at all relevant times an ERISA fiduciary to the 401(k) plan sponsors and plaintiff participants invested in ACSAF.

ERISA Breach Allegations

  • JPMRPS embarked on a course of conduct in which it wrongfully lured and enticed ACSAF plan sponsors away from the ACSAF and into JPM’s Commingled Stable Value Asset Income Fund as well as into JPM’s separate Stable Value Funds.
  • Throughout this course of conduct, JPMRPS knew full well that such conduct would damage ACSAF and investors in it like plaintiffs, but that it would benefit itself.
  • JPMRPS, through its actions, was able to influence, manage and control fund selection for 401(k) plans and participants invested in ACSAF and move many plan sponsors to JPM’s Stable Value Funds.
  • Ultimately, ACSAF was so totally decimated by JPM’s conduct that it was no longer economically viable for ACSAF to exist at all, and JPM caused what remained of that fund to be merged or otherwise become part of the Commingled Stable Value Fund on September 14, 2007.
  • The purpose of this campaign was due in part to American Century turning down JPM’s attempt to purchase the ACSAF.

American Century Wins $373 Million Arbitration against JP Morgan

All of the above is alleged despite the fact that the Revenue Sharing Agreement between ACI and JPM required JPM to give equal importance as house funds to both ACI products and JPM products, including an agreement that for plans above $50 million, JPM stable value products would be selected for offering, and below that amount, the ACSAF.

ACI was obviously not pleased with this scenario, and in July 2009, initiated arbitration proceedings against JPMRPS and related entities. Am. Century Inv. Mgmt., Inc. v. J.P. Morgan Invest Holdings LLC, No. 58 148 Y 00220 9 (Am. Arb. Ass’n). In the arbitration complaint, ACI alleged that in violation of the Revenue Sharing Agreement and in bad faith, JPM embarked on a successful plan to (1) take over American Century’s Stable Value accounts to decrease ACSAF’s value for ultimate acquisition, (2) increase JPM assets under management and resulting fees to JPM entities, and (3) decrease the amounts due to ACI under the Revenue Agreement.

The arbitrators found in favor of ACI finding as true much of the factual underpinnings of the case being filed by the plaintiffs in Knee. In its 72-page Award (attached as an Exhibit to the Complaint in Knee) dated August 10, 2011, the arbitrators sustained ACI’s claim and awarded it $128,297,668 plus interest in the amount of $4,334,000, for a total award of $132,631,688, for JPM’s breach of the Revenue Sharing Agreement as part of a larger $373 million award. The arbitration award received significant media coverage and JPM paid the award to ACI.

The plaintiffs in Knee are now filing their claim as participants in the stable funds at issue to try and recoup the losses they allege they accrued because of JPM’s alleged actions.

Whitley v. J.P. Morgan Chase

Plaintiffs allege that their case relates to a case filed in April of 2012, that I admittedly was unaware of until today, Whitley v. J.P. Morgan Chase. There, the complaint alleges that:

  • JPM inappropriately invested their many stable value funds in mortgage assets that were far too risky for the stated and/or reasonable objectives of such funds.
  • JPM unlawfully failed to properly diversify the asset base of the stable value funds when it invested through the JPM Intermediate Bond Fund and Pension Trust Funds, including the Private Placement Mortgage Fund, a substantial percentage of their assets in the mortgage assets.
  • After receiving repeated warnings about the weakness of the mortgage market and acting on such warnings when its own funds were at stake, JPM continued to hold vast amounts of mortgage assets known to it to be risky and illiquid in the stable value funds.
  • Without meaningful hedging or use of other available loss-avoidance and risk management strategies that could have otherwise protected the retirement investors in the Class from the financial harms complained of herein, JPM violated the duty to diversify.
  • JPM unlawfully disguised and failed to disclose to plan participants the true loss in value of the mortgage assets that it had wrongfully and unlawfully sold to the Stable Value Funds and the impact of those positions on their yield.

The plaintiffs in Whitley compare their claims to the case filed against State Street by Prudential Retirement because of risky mortgage backed assets. In re State Street Bank & Trust Co. Fixed Income Funds Inv. Litig., 842 F. Supp. 2d 614 (S.D.N.Y. 2012). (Prudential filed the case as the fiduciary acting on behalf of its client plans that invested in the Street Funds at issue).  There, the court found after trial that State Street Bank and Trust violated ERISA, and held that the class’s damages, exclusive of interest and attorneys’ fees, equaled approximately $77 million. Prudential had alleged that State Street Bank and Trust’s investing of its purportedly conservative enhanced bond funds in unduly risky mortgage assets violated its ERISA duties of care, skill, prudence, and diligence, as well as its ERISA duty of diversification. The parties later settled.

The Whitley case remains active and has also been added to our ERISA Litigation Index. The Whitley court has recently granted the plaintiffs’ motion to file a second amended complaint at the end of this month. We will update that case as it progresses.

Our Thoughts

To my knowledge, this is the first major case filed against JP Morgan Retirement Plan Services who is a huge player in the retirement plan world. Here are our thoughts on this new case being filed:

First, we are beginning to see a wave of cases that simply cannot be ignored by the greater plan sponsor and provider community. The tentacles are reaching out to affect you whether you like it or not. To our readers who are plan sponsors or providers with plans that have invested in any of the above mentioned funds during the relevant time period, you need to review these cases carefully and monitor their progress. The plaintiffs in both cases, Knee and Whitley, are seeking to represent your plan’s participants as gigantic class actions. We’re talking potentially thousands of plans. This is a big deal. (You may want to consult with your ERISA counsel if you have one. If you don’t, I know of many good ones. Call me and I will help you figure out how to find one.)

Second, if you continued to offer these funds or continued to recommend these funds after the events alleged above, you should probably have a good reason why you did. This should have been an affirmative decision and it should have been documented. This is true regardless of whether the plaintiffs in these cases can prove their allegations. Whether we like it or not, there has been enough information in the public sphere about these funds to raise the issue of a further need to investigate by a fiduciary responsible for selecting them. I believe it qualifies for what is termed a “material change in circumstances” to the investment. If you need help with instituting better governance procedures that include a system for monitoring funds and/or documenting fiduciary process decisions, then call me. We specialize in helping ERISA fiduciaries implement best practices and I personally draw upon my previous experience in litigating fiduciary breach cases where many of these very issues have been raised.

Third, while complaints typically don’t contain detailed damages calculations, it seems that one here in the Knee complaint would have been helpful to understand quantitatively how the plaintiff class was harmed. A comparison of performance of the ACSAF to other stable value products? Data on outflows? How the damages they are seeking here compare to the damages paid in the arbitration case? It is entirely unclear the magnitude of damages being alleged.

Fourth, these cases represent a new breed of ERISA fiduciary breach cases where class actions are being filed seeking to represent hundreds (or thousands) of plans or participants in hundreds (or thousands) of plans. One such case where a class was certified of basically every plan client of the provider just finished their third day of a month long bench trial in the District of Connecticut in Healthcare Strategies v. ING Life Insurance and Annuity Co. Other such cases seeking this new breed of certified class include the float cases filed against Fidelity.

Fifth, although not relevant in anyway, it is interesting that the Whitley case alleges a stable value fund was too risky, where the claim against Lockheed Martin recently allowed to go forward as a class action by the 7th Circuit,  alleges the stable value fund was too conservative.

Bottom line conclusion: you need to have a good fiduciary process in place to select and monitor the funds in your plan. When situations like those alleged in the Knee and Whitley cases pop up, you must be able to show that you considered the material change in circumstances and did so in the best interest of your plan’s participants. Again, if you need help instituting a good fiduciary process, we are only a phone call away.

We will continue to monitor these two cases and all others being tracked in the ERISA Litigation Index.

 

Case Against Fidelity Regarding In-house Plan Heats Up

HeatUp

The case filed by a participant in the Fidelity in-house 401(k) plan, Bilewicz v. FMR LLC, heated up today with the filing of a proposed First Amended Complaint. We previously discussed this case in the posts Fidelity Files a Motion to Dismiss the Lawsuit Regarding Its Own In-House Plan (June 3, 2013), Are target date funds really the next focus of ERISA litigation? (May 8, 2013), and Fidelity is Targeted Again and This Time Regarding Its Own In House Plan (April 16, 2013).

The plaintiffs propose to amend the complaint in two substantive ways: adding more named plaintiffs and adding fact and class allegations regarding terms that purportedly mandate that any plan investment in mutual funds must be in mutual funds managed by Fidelity Management and Research Company.

The former is far more interesting to me, with twenty-six additional named plaintiffs being added to the litigation. To note, in all the previous litigation I was involved with, we never had double digit plaintiffs in a case. To have 27 in total is somewhat astonishing. It appears the reason to have so many in the lawsuit is to respond to Fidelity’s argument in their filed Motion to Dismiss that you need a plaintiff in each fund that is alleged to be improper. The plaintiffs have gone to great lengths to add details on the all the different investment funds used by the proposed additional named plaintiffs.

ERISA litigation is not a numbers game. The more plaintiffs you have does not guarantee any sort of outcome. Instead, proving a breach of ERISA’s fiduciary duties requires a carefully crafted and masterful presentation of the facts and law. Nonetheless, to find 27 current or former employees of any defendant corporation that are willing to sign onto a federal lawsuit, with all it’s inherent risks, suggests that plaintiffs’ claims may have some plausibility to them. If you can convince that many people of the potential of the case, you certainly have a fighting chance to convince a federal judge.

I’m quite looking forward to the first substantive decision.

The Roller Coaster Continues: Court Finds ING a Fiduciary Over Revenue Sharing Practices. Schedules Trial for September.

The roller coaster of who is and isn’t a fiduciary under ERISA section 3(21)(A) continues its seemingly out of control ride. Today, August 9, 2013, a district court in Connecticut ruled ING Life Ins. and Annuity Co. (“ILIAC”) a fiduciary related to its revenue sharing practices and scheduled a four week trial to begin anytime after September 3.

The lawsuit, Healthcare Strategies v. ING Life Insurance and Annuity Co., was previously certified as a class action, with the following class definition:

All administrators of employee pension benefit plans covered by the Employee Retirement Income Security Act of 1974 subject to Internal Revenue Code §§ 401(a), (k) with which ING has maintained a contractual relationship based on a group annuity contract or group funding agreement and for which, since February 23, 2005, ING has received revenue sharing payments (e.g., asset based sales compensation, service fees under distribution and/or servicing plans adopted by funds pursuant to Rule 12b-l under the Investment Company Act of 1940, administrative service fees and additional payments, and expense reimbursement) from any mutual fund, investment advisor or related entity.

Said another way, the two plan administrator class representatives who filed suit now represent what is most likely every one of ILIAC’s retirement plan clients. As a reminder, this class definition survived an interlocutory Rule 23(f) appeal to the 2nd Circuit when they failed to take the appeal.

The plaintiffs here allege:

(1) ILIAC has included certain mutual funds as investment options based on the funds’ revenue sharing payments to ILIAC rather than the funds’ potential to benefit the plans,
(2) ILIAC’s receipt of revenue sharing payments constitute prohibited transactions under ERISA 406(b)(1) & (3),
(3) The fees charged by ILIAC to the plans do not bear a meaningful relationship to the cost of the services provided, and they thus constitute excessive compensation to ILIAC, and
(4) By taking as its compensation the spread between the guaranteed payment and the investment performance of assets in fixed accounts and guaranteed accumulation accounts, ILIAC has retained excessive compensation and engaged in self-dealing.

The reason that I paint this decision as a runaway roller coaster is that its core ruling finding ILIAC a fiduciary is squarely at odds with recent decisions such as the 7th Circuit case Leimkuehler v. American United Life Insurance Co. At issue is ILIAC’s authority, as an insurance company platform that controls and sells separate accounts wrapped around mutual funds, to change, add, or eliminate the funds that may be invested by 401(k) plan participants when it determines that such a change is “desirable . . . to accomplish the purpose of the Separate Account,” and whether that authority confers fiduciary status. In order to exercise such discretion over a plan’s investments, all that is required of ILIAC is that it notify the plan trustees of any such action.

ILIAC and the plaintiffs agreed that to the extent ILIAC actually exercises its contractual authority to substitute funds in a plan, it is acting in a fiduciary capacity with respect to any revenue-sharing payments it acquires from that change. However, ILIAC argued that under ERISA section 3(21)(A)(i), its fiduciary status is limited to the extent it actually “exercises . . . discretionary authority” to manage a plan. Thus, ILIAC sought to limit its fiduciary duty to the two isolated occasions during the last 10 years that it actually substituted funds. This would be consistent with the ruling in Leimkuehler.

However, the court, relying on 2nd Circuit law which the Connecticut district court is required to follow, found that such an interpretation of an ERISA fiduciary is too limited, particularly given the mandate that the term “fiduciary” be broadly construed. Slip op. at 13. Instead, the 2nd Circuit in Bouboulis v. Transp. Workers Union of Am., 442 F.3d 55, 63 (2d Cir. 2006), holds that section 3(21)(A) creates a “bifurcated test”:

Subsection one imposes fiduciary status on those who exercise discretionary authority, regardless of whether such authority was ever granted. Subsection three describes those individuals who have actually been granted discretionary authority, regardless of whether such authority is ever exercised.

Thus, the court found that ILIAC is a fiduciary under 3(21)(A)(iii) related to its control over the funds. Key to this conclusion was the court’s finding that services performed by ILIAC could be defined as “plan administration,” the language found in (iii), as opposed to the “plan management” language found in (i). The court held that under 2nd Circuit and Supreme Court authority, “plan administration” should be ready broadly. Finally, the court addressed the Leimkuehler decision and distinguished it based upon the fact that the plaintiffs there failed to argue fiduciary status under (iii) and instead solely argued under (i).

As it was a ruling on ILIAC’s motion for summary judgment, the court held that there were triable issues of fact related to whether ILIAC’s control and receipt of revenue sharing was within the scope of it’s fiduciary duties owed from having authority over changes to plan funds, and required each side to be ready for a four week trial anytime after September 3.

So what does this mean?

(1) It means that the fiduciary duties related to the control and receipt of revenue sharing are far from settled. On one side we’ve got cases such as Tussey v. ABB, Inc. and Santomenno v. Transamerica Life Ins. Co. On the other, we’ve got Leimkuehler and Tibble v. Edison Int’l (that foreclosed an ERISA section 406(b)(3) claim because revenue sharing was ruled not to be a plan asset).

(2) Any provider that receives revenue sharing as compensation should carefully analyze their own practices in light of this decision and others. This is especially so in light of other recent news such as the settlement between a fiduciary investment advisor and the Department of Labor (“DOL”) over charges the advisor failed to disclose the receipt of revenue sharing that amounted to 10 times the contracted fee with the client. ($500,000+ v. $50,000). How serious is this issue? The DOL initially sought injunctive relief that would have forever prohibited the advisor from acting as a fiduciary to a qualified plan again, which probably would have shut down the advisor’s business. Instead, the advisor agreed to pay $200,000+ and to forever disclose all forms of compensation to every current and future client in perpetuity. Either punishment is nasty business.

(3) The second breed of ERISA breach cases involving classes of plans, rather than classes of one plan’s participants, are finally progressing to a determination of liability. The potential damages are magnitudes higher, as is the catastrophic harm to a service provider.

Here is the call to action. Mitigate your risk and exposure over the receipt of revenue sharing as compensation if you are a service provider or the payment of revenue sharing if you are a plan sponsor, through the implementation of a comprehensive plan and prudent procedures, that at a minimum includes an analysis of fiduciary identification, exercise, and authority. If you are unsure of how to do so, seek the help of a qualified entity with demonstrated expertise (such as FRA PlanTools).