Jenner & Block

Co-author, "(Possible) Good News For ERISA Fiduciaries," Law360

In this article Jenner & Block Partner Amanda S. Amert and Associate April A. Otterberg discuss a case recently argued in the U.S. Supreme Court, United States v. Jicarilla Apache Nation, in which the Supreme Court is addressing, for the first time, the scope and nature of the common-law fiduciary exception to the attorney-client privilege. The authors explain that, although Jicarilla Apache Nation is not an ERISA case, the Court’s eventual decision has the potential to resolve or clarify whether the fiduciary exception applies to defendants in ERISA breach of fiduciary duty cases. The authors note that courts have widely, but unevenly, applied the exception in some cases to require ERISA fiduciaries to produce attorney-client communications to plaintiffs who are ERISA plan participants or beneficiaries. As a result, an ERISA fiduciary who seeks legal advice about how to carry out its fiduciary obligations today is at risk of being compelled to provide that advice to its adversaries if litigation arises. The authors conclude that it is at best difficult to predict the outcome of the case from the questions asked at oral argument. Even so, they write, “the outlook for ERISA fiduciaries after the argument in Jicarilla Apache Nation seems to merit cautious optimism that the Supreme Court will at least offer some additional guidance as to when the fiduciary exception to the attorney-client applies, and perhaps also provide some additional protection for fiduciaries seeking legal advice.”