Last week, the plaintiffs in Tibble v. Edison Int’l and Leimkuehler v. American United Life Insurance Co. separately filed petitions to the United States Supreme Court seeking writs of certiorari. This follows the petition filed by the defendants in Abbott v. Lockheed Martin Corporation seeking to overturn the class cert decision by the 7th Circuit which was very favorable to plan participants.
The Tibble petition to the Supreme Court seeks to have the following questions reviewed:
1. Notwithstanding the ongoing nature of ERISA’s fiduciary duties, does the statute of limitations under 29 U.S.C. §1113(1) immunize 401(k) plan fiduciaries for retaining imprudent investments that continue to cause the plan losses if the funds were first included in the plan more than six years ago?
2. Does Firestone deference apply to fiduciary breach actions under 29 U.S.C. §1132(a)(2), where the fiduciary allegedly violated the terms of the governing plan document in a manner that favors the financial interests of the plan sponsor at the expense of plan participants?
The plaintiffs are appealing the original opinion by the 9th Circuit, as well as the modified decision that resulted from the plaintiffs’ petition for rehearing.
The Leimkuehler petition to the Supreme Court seeks to have the following questions reviewed:
ERISA § 3(21)(A)(i) provides in relevant part that “a person is a fiduciary with respect to a plan to the extent (i) he … exercises any authority or control respecting management or disposition of [the plan’s] assets ….”
The question presented is: Whether the court below erroneously held, in conflict with the decisions of six other circuits, that a person who exercises some authority or control over the assets of a plan is a fiduciary with respect to that plan only if he is alleged to have “mismanaged” the plan’s assets?
The purpose of this post is simply to get the information out. We will discuss there petitions in depth once the opposing parties in each case files their response.
Nonetheless, it is well known rumor/fact in the ERISA litigation world that the Supreme Court does not like ERISA cases. Thus, it will be interesting to see how they respond to three pending petitions that all come from “similar” excessive fee cases but all address entirely unique legal issues.