As we’ve discussed in the past, the Supreme Court requested the opinion of the Solicitor General of the United States along with the Department of Labor in asking whether cert should be granted for the two issues that Plaintiffs sought to have heard. The first, regarding the six year statute of limitations found in ERISA was granted after the Solicitor General recommended that the Court take the case:
The petition for a writ of certiorari is granted limited to
the following question: “Whether a claim that ERISA plan
fiduciaries breached their duty of prudence by offering
higher-cost retail-class mutual funds to plan participants, even
though identical lower-cost institution-class mutual funds were
available, is barred by 29 U. S. C. §1113(1) when fiduciaries
initially chose the higher-cost mutual funds as plan investments
more than six years before the claim was filed.”
The second issue regarding deference to a plan fiduciary in interpreting a plan document was not supported by the Solicitor General and the Supreme Court did not agree to hear it. However, the proper level of deference that a fiduciary is to be given under ERISA sec. 502(a)(2) fiduciary breach claims is also the subject of a cert petition in Tussey v. ABB before the Court. At this point, the Court has yet to put consideration of that petition on its calendar and ABB’s brief is due October 6 under the current schedule, which is always subject to change.
Oral arguments in Tibble have not yet been set but currently the Court has availability in January. If heard that late, we can expect a decision sometime between late Spring and the end of June when the term ends.