Earlier today, in Fifth Third Bancorp v. Dudenhoeffer, the U.S. Supreme Court declined to adopt the so-called Moench presumption of prudence pursuant to which many circuit courts had dismissed ERISA stock drop claims unless plan participants had pled allegations that the company’s economic situation was dire or the company was on the brink of collapse. The Court, however, made it clear that, to withstand a motion to dismiss, a participant would have to plead facts and circumstances that could plausibly lead to the conclusion that the plan fiduciaries acted imprudently, taking into account the unique circumstances presented by ESOPs. The Court stated that, absent “special circumstances,” allegations that plan fiduciaries should have recognized from publicly available information that a company stock fund was under- or overvalued are “implausible as a general rule.” Where a claim of imprudence is premised on nonpublic 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.”

Watch for our in-depth analysis of the Court’s decision, and tune into Proskauer’s Webinar tomorrow, June 26, 2014, to hear our views on the decision and its implications for plan sponsors and fiduciaries. Please follow these steps to register for the webinar or webinars you would like to attend:

  • Go to: https://university2.learnlive.com/?ReturnUrl=%2funiversity%2fproskaueronlineevents.
  • If you are a first time user, create a new account by clicking the “New User Registration” button and completing the New User Registration fields. The Company Pass Code is 9736529. If you are a returning user, login with your existing account information.
  • Click the “Submit” button.
  • This will bring you to the Catalog page.
  • Click the “Enroll” button for the session titled: Fifth Third Bancorp v. Dudenhoeffer – An Analysis of the Supreme Court’s Decision
Posted in Employer Stock Fund Litigation
Tags: Employee Stock Ownership Plan, ESOP, Moench Presumption, Presumption of Prudence, U.S. Supreme Court
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Photo of Russell Hirschhorn Russell Hirschhorn

Russell L. Hirschhorn, co-head of the ERISA Litigation Group, represents plan fiduciaries, trustees, sponsors and service providers on the full range of ERISA and state law benefit and fiduciary issues. From single plaintiff litigation and arbitration to complex class action litigation, he provides…

Russell L. Hirschhorn, co-head of the ERISA Litigation Group, represents plan fiduciaries, trustees, sponsors and service providers on the full range of ERISA and state law benefit and fiduciary issues. From single plaintiff litigation and arbitration to complex class action litigation, he provides practical guidance, develops unique litigation defense strategies and, when appropriate, mediates successful resolutions.

Russell represents clients across a wide array of publicly-held, multi-national companies and privately owned companies across a multitude of industries including, banking, finance and investments, pharmaceuticals, retail products and construction, to name just a few. In addition, he also counsels benefit plan clients on a host of compliance and federal and state government agency enforcement matters, including complex and lengthy investigations and audits by the U.S. Departments of Justice and Labor.

Russell is management co-chair of the American Bar Association Employee Benefits Committee as well as management co-chair of the Trial Institutes Committee of the American Bar Association’s Labor and Employment Law. He also writes on cutting-edge ERISA litigation issues, serving as a contributing author and a past chapter editor to Employee Benefits Law (BNA Third Edition).

Deeply dedicated to pro bono work, Russell was a principal drafter of several amicus briefs for the Innocence Project, a legal non-profit committed to exonerating wrongly convicted people. Russell has been recognized on several occasions for his commitment to pro bono work including by President George W. Bush in receiving the U.S. President’s Volunteer Service Award.

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