On December 13, 2021, Professor Norman Stein was quoted in a Pensions & Investments article about Hughes et al. vs. Northwestern University et al, an Employee Retirement Income Security Act of 1974 (ERISA) case that’s currently before the Supreme Court of the United States (SCOTUS).

The question in the case relates to how SCOTUS will determine the level of proof that should be required in determining whether an ERISA case should go to trial. The case was brought by participants in two 403(b) plans who argue that their fiduciaries broke their ERISA duties by “too many investment options, retaining too many poor-performing investments and charging excessive plan and record-keeping fees,” according to the article.

Currently, there are different standards in lower courts to determine if a case goes to trial. For example, a 7th Circuit Court decision conflicted with decisions in other court rulings.

“There is reason to hope that the [SCOTUS] will unequivocally reject the 7th Circuit holding that giving a participant a tsunami of investment choices provides a plan fiduciary with an impenetrable shield against liability so long as the plan’s investment menu includes some prudent options,” said Professor Stein.

Read the article