In re Omnicom Group. Inc. ERISA Litigation

Background

Five current and former participants in the Omnicom Group Retirement Savings Plan sued Omnicom Group Inc., the Board of Directors of Omnicom Group Inc., and the Administrative Committee of the Omnicom Group Retirement Savings Plan. The plaintiffs claim that the defendants breached their duty of prudence under the Employee Retirement Income Security Act of 1974 (ERISA). That duty requires plan fiduciaries to act with the care, skill, prudence, and diligence that a prudent person familiar with those matters would use.

The operative complaint challenges the plan’s selection and retention of the actively managed Fidelity Freedom Funds Active Suite. The plaintiffs allege that the defendants should have selected the passively managed Fidelity Freedom Funds Index Suite instead. The letter states that the plaintiffs also broadly criticize active management, including its fees and ability to outperform the market.

Discovery dispute

Omnicom requested documents and communications concerning the plaintiffs’ investments outside the retirement plan. The requests included Requests for Production Nos. 6, 7, and 8. The plaintiffs objected, arguing that the defendants’ duties concerned the plan as a whole and that the plaintiffs’ outside investments were irrelevant. The plaintiffs’ counsel indicated that the plaintiffs would answer questions about outside investments at depositions, but the plaintiffs maintained their objections to producing documents.

After the five named plaintiffs were deposed between March 22 and March 31, 2022, Omnicom asserted that the depositions confirmed that relevant documents existed and had not been produced. Omnicom again requested the documents. On April 8, the plaintiffs stood on their objections and refused to produce documents about their outside investments.

Requested relief and court action

Omnicom argued that the requested materials were relevant under the federal discovery rule, which generally permits discovery of nonprivileged information relevant to a party’s claims or defenses. It relied on decisions in which courts compelled ERISA plaintiffs to disclose non-plan investments when the plaintiffs challenged plan investment options or introduced active management into the case through their pleadings.

The letter requests a conference under Local Civil Rule 37.2 concerning Omnicom’s request for an order compelling production. The provided text does not contain a ruling granting or denying that request, and it does not state whether the court ordered production. It states only that the clerk was directed to terminate docket entries 84 and 85. The supplied metadata identifies Judge Colleen McMahon, while the letter is addressed to Judge Sarah L. Cave; the provided material does not explain that discrepancy.

Effect

The dispute concerns discovery obligations during the ERISA litigation. It potentially affects the five named plaintiffs, who were asked to provide information about investments outside the Omnicom plan, and the Omnicom defendants, who sought that information. The provided text does not establish any final ruling on the relevance or production of those documents.