The Second Circuit recently affirmed the dismissal of former Lehman Brothers employees’ fiduciary breach claims relating to their investment in the Lehman Brothers stock fund through their 401(k) plan. Rinehart v. Akers, 2013 WL 3491281 (2d Cir. July 15, 2013). As is typical for cases of this type, the complaint included both a claim for imprudence in maintaining the company stock fund and a claim for misrepresentation/material nondisclosure insofar as the plan fiduciaries allegedly failed to communicate the risks associated with investment in the stock fund. With respect to the first claim, consistent with its prior rulings, the Court applied the presumption of prudence and found the presumption could not be rebutted here. The Court stated that, although Lehman’s share price exhibited a downward trend overall, the daily stock price fluctuated widely and, in its final hours, the market arguably viewed it as a “going concern.” The Court also held that plan fiduciaries did not have a duty to investigate whether there was material, nonpublic information showing that Lehman was in a “dire situation.” With respect to plaintiffs’ disclosure claim, the Court agreed with the Sixth Circuit and held that incorporation by reference of securities filings into a summary plan description is a fiduciary communication. The Court nevertheless dismissed the disclosure claim because it found that plaintiffs had failed to identify specific portions of the securities filings that the plan fiduciaries allegedly knew were false or misleading, or that even were false or misleading.