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On January 9, the Supreme Court invited the solicitor general to file a brief in a case regarding ESOPs, indicating the Court's interest in hearing the case. The case concerns whether ERISA permits courts to order one fiduciary to indemnify another. In the case, Fenkell v.

In Tibble v. Edison International, No. 13-550 (U.S., May 18, 2015), the Supreme Court ruled that plaintiffs can timely commence a claim for breach of fiduciary duty within six years of the breach of a continuing duty of prudence in selecting investments.

In the last email bulletin we reported on the oral arguments in the Dudenhoeffer v. Fifth Third Bank case, during which the Supreme Court heard oral arguments on the ESOP presumption of prudence.

In Lampkin v. UBS Fin. Servs. Inc., No. 19-249 (U.S., petition denied Oct.

In Jander v. Retirement Plans Committee of IBM (2nd Cir. Dec.

On June 25, the Supreme Court ruled in Fifth Third Bancorp v. Dudenhoeffer that there is no presumption of prudence to protect fiduciaries of plans designed to invest in company stock, and specifically employee stock ownership plans (ESOPs).

Since a seminal case in 1985 (Massachusetts Mutual Life Insurance Company v. Russell, 473 U.S. 134), courts have largely, if not unanimously, concluded that individuals could not sue ERISA plan fiduciaries for individual losses to the plan.

On Friday, the Supreme Court granted certiorari in Fifth Third Bancorp v Dudenhoeffer (No. 12-751), meaning that the court will review a ruling by the Sixth Circuit Court of Appeals to determine whether ESOP fiduciaries are entitled to a presumption of prudence.

The Supreme Court announced on June 3, 2019, that it would hear an appeal by IBM, which is fighting a claim by participants in its 401(k) plan.

The Supreme Court's June 25 ruling in Fifth Third v. Dudenhoeffer ended the presumption of prudence for fiduciaries of ESOPs, but its decisions to remand three related cases shows that its decision will have both pros and cons for ESOPs.