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ERISA – Fiduciary Duty

By: Derek Hawkins//February 12, 2020

ERISA – Fiduciary Duty

By: Derek Hawkins//February 12, 2020

United States Supreme Court

Case Name: Retirement Plans Committee of IBM, et al. v. Larry W. Jander, et al.

Case No.: 18-1165

Focus: ERISA – Fiduciary Duty

In Fifth Third Bancorp v. Dudenhoeffer, 573 U. S. 409 (2014), we held that “[t]o state a claim for breach of the duty of prudence” imposed on plan fiduciaries by the Employee Retirement Income Security Act of 1974 (ERISA) “on the basis of inside information, a plaintiff must plausibly allege an alternative action that the defendant could have taken that would have been consistent with the securities laws and that a prudent fiduciary in the same circumstances would not have viewed as more likely to harm the fund than to help it.” Id., at 428. We then set out three considerations that “inform the requisite analysis.” Ibid.

The question presented in this case concerned what it takes to plausibly allege an alternative action “that a prudent fiduciary in the same circumstances would not have viewed as more likely to harm the fund than to help it.” Id., at 428. It asked whether Dudenhoeffer’s “‘more harm than good’ pleading standard can be satisfied by generalized allegations that the harm of an inevitable disclosure of an alleged fraud generally increases over time.” Pet. for Cert. i.

In their briefing on the merits, however, the petitioners (fiduciaries of the ESOP at issue here) and the Government (presenting the views of the Securities and Exchange Commission as well as the Department of Labor), focused their arguments primarily upon other matters. The petitioners argued that ERISA imposes no duty on an ESOP fiduciary to act on inside information. And the Government argued that an ERISA-based duty to disclose inside information that is not otherwise required to be disclosed by the securities laws would “conflict” at least with “objectives of ” the “complex insider trading and corporate disclosure requirements imposed by the federal securities laws . . . .” Dudenhoeffer, 573 U. S., at 429.

The Second Circuit “did not address the[se] argument[s], and, for that reason, neither shall we.” F. Hoffmann-La Roche Ltd. v. Empagran S. A., 542 U. S. 155, 175 (2004) (citation omitted); see Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005) (“[W]e are a court of review, not of first view”). See also 910 F. 3d 620 (CA2 2018). Nevertheless, in light of our statement in Dudenhoeffer that the views of the “U. S. Securities and Exchange Commission” might “well be relevant” to discerning the content of ERISA’s duty of prudence in this context, 573 U. S., at 429, we believe that the Court of Appeals should have an opportunity to decide whether to entertain these arguments in the first instance. For this reason we vacate the judgment below and remand the case, leaving it to the Second Circuit whether to determine their merits, taking such action as it deems appropriate.

Vacated and remanded


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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets. [/box]


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