Today, the U.S. Supreme Court ruled that an ERISA plan participant may allege that a plan fiduciary breached the duty of prudence by not properly monitoring the plan’s investment options as long as the alleged breach of the continuing duty occurred within six years of the suit. See Tibble v. Edison Int’l (U.S. No. 13-550). In so ruling, the Court vacated the Ninth Circuit’s earlier decision in which it held that, absent a “significant change of in circumstances,” a participant could not pursue such a claim based on the selection of an investment option more than six years prior to the suit. The Court reasoned that trust law requires a fiduciary to conduct “a regular review of its investments with the nature and timing of the review contingent on the circumstances.” While some have already opined that the Court’s decision has paved the way for increased fee litigation, that is not necessarily the case. It will not be enough to simply plead that defendants failed, within six years of filing suit, to prudently monitor an investment option. Rather, as the Supreme Court articulated many years ago, a plaintiff must be able to plead a plausible claim. That is, plaintiffs will have to plead “enough factual matter” to “nudge their claims across the line from conceivable to plausible.” To that end, the Supreme Court remanded the Tibble case to the Ninth Circuit to determine for an evaluation of the “contours of the alleged breach of fiduciary duty” and whether the fiduciaries satisfied their continuing obligation to monitor the investment options during the six years prior to the filing of the lawsuit.
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