Jenner & Block

New ERISA Complaints Target Employers Facing Corrective Action on Potentially Inflated Stock Value

In Fifth Third Bancorp v. Dudenhoeffer, 143 S.Ct. 2459 (2014), the Supreme Court of the United States provided guidance on the pleading standard for “stock drop” litigation involving ERISA-based fiduciary duty claims.  In Dudenhoeffer, while the Supreme Court found that there is no presumption of prudence related to stock funds, the Court set a new standard for pleading fiduciary breach claims.  Specifically, to state a fiduciary breach claim for prudence on the basis of inside information, the Court stated that “a plaintiff must plausibly allege an 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.”  Id.  Following Dudenhoeffer, lower courts applied this standard to dismiss many ERISA fiduciary breach claims that did not satisfy the Court’s new exacting standard.