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Retirement Plans Committee of IBM, et al. v. Larry W. Jander, et al.

Paid petition · United States Court of Appeals for the Second Circuit, No. 17-3518 · judgment December 10, 2018

Decided · January 14, 2020
Pre-decision estimate: 29% cert probability (95% interval 22%–38%)

Before the decision, about 7× the 4.1% base rate. The model weighted this up for counsel who has won certiorari before, a Second Circuit decision below, and a circuit split argued in the petition.

Question presented

In Fifth Third Bancorp v. Dudenhoeffer, this Court unanimously held that to state a claim under the Employee Retirement Income Security Act of 1974 ("ERISA''), 29 U.S.C. § 1001 et seq., for breach of the fiduciary duty of prudence based on inside information, a plaintiff must "plausibly allege[] that a prudent fiduciary in the defendant's position could not have concluded that [an alternative action] would do more harm than good to the fund." 573 U.S. 409, 429-30 (2014); accord Amgen Inc. v. Harris, 136 S. Ct. 758 (2016). The Court designed this "context specific" standard to deter the kind of meritless suits lower courts had eliminated through a presumption of prudence (which the Court rejected) and to "readily divide the plausible sheep from the meritless goats" at the pleading stage. 573 U.S. at 425. In the decision below, the Court of Appeals subverted that pleading standard and opened a circuit split by relying on boilerplate allegations that the harm of an eventual disclosure of an alleged fraud typically increases the longer the fraud continues. Those allegations "always" can be, and routinely are, pleaded in support of a Fifth Third claim. Other courts of appeals have rejected the same allegations as insufficient as a matter of law, in order to avoid undermining the pleading standard imposed by Fifth Third and Amgen and to deter meritless ERISA suits. The question presented is: Whether Fifth Third's "more harm than good" pleading standard can be satisfied by generalized allegations that the harm of an inevitable disclosure of an alleged fraud generally increases over time.

Counsel of record

For petitioner
Paul D. Clement
Clement & Murphy, PLLC

For respondent
Samuel Ethan Bonderoff
Zamansky, LLC

Case

Conference history
Distributed for 2 conferences

Amicus briefs
1 cert-stage · 7 merits
(4 supporting pet./neither, 3 respondent)

Argument & decision

Argued November 6, 2019 — Paul D. Clement · Jonathan Y. Ellis · Samuel Bonderoff. Audio and transcript

Decided January 14, 2020. Opinion by Per Curiam.

Proceedings

  1. Feb 18 2020
    JUDGMENT ISSUED.
  2. Jan 14 2020
    Judgment VACATED and case REMANDED. Kagan, J., filed a concurring opinion, in which Ginsburg, J., joined. Gorsuch, J., filed a concurring opinion. Opinion per curiam.
  3. Nov 06 2019
    Argued. For petitioners: Paul D. Clement, Washington, D. C. For United States, as amicus curiae: Jonathan Y. Ellis, Assistant to the Solicitor General, Department of Justice, Washington, D. C. For respondents: Samuel Bonderoff, New York, N. Y.
  4. Oct 24 2019
    Reply of petitioners Retirement Plans Committee of IBM, et al. filed. (Distributed)
  5. Oct 15 2019
    Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.
  6. Oct 01 2019
    Brief amici curiae of American Association for Justice and Public Justice filed. (Distributed)
  7. Oct 01 2019
    Brief amicus curiae of Occupy the SEC filed. (Distributed)
  8. Oct 01 2019
    Brief amici curiae of Law Professors filed. (Distributed)
  9. Sep 27 2019
    Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
  10. Sep 24 2019
    Brief of respondents Larry W. Jander, et al. filed. (Distributed)
  11. Sep 16 2019
    Record requested from the U.S.C.A. 2nd Circuit.
  12. Sep 16 2019
    Record received from the U.S.C.A. 2nd Circuit it electronic.
  13. Sep 03 2019
    CIRCULATED
  14. Aug 13 2019
    Brief amicus curiae of the United States in support of neither party filed.
  15. Aug 13 2019
    Brief amici curiae of The Securities Industry and Financial Markets Association, The Chamber of Commerce of the United States of America, and The Business Roundtable filed.
  16. Aug 13 2019
    Brief amicus curiae of DRI—The Voice of the Defense Bar filed.
  17. Aug 13 2019
    Brief amici curiae of American Benefits Council and ERISA Industry Committee filed.
  18. Aug 06 2019
    Brief of petitioners Retirement Plans Committee of IBM, et al. filed.
  19. Aug 06 2019
    Joint appendix filed.
  20. Jul 16 2019
    Joint motion for an extension of time to file the briefs on the merits granted. The time to file the joint appendix and petitioners' brief on the merits is extended to and including August 6, 2019. The time to file respondents' brief on the merits is extended to and including September 24, 2019.
  21. Jul 11 2019
    Blanket Consent filed by Petitioners, Retirement Plans Committee of IBM, et al.
  22. Jul 08 2019
    SET FOR ARGUMENT on Wednesday, November 6, 2019.
  23. Jul 01 2019
    Joint motion for an extension of time to file the briefs on the merits filed.
  24. Jun 03 2019
    Petition GRANTED.
  25. May 28 2019
    DISTRIBUTED for Conference of 5/30/2019.
  26. May 07 2019
    DISTRIBUTED for Conference of 5/23/2019.
  27. May 06 2019
    Reply of petitioners Retirement Plans Committee of IBM, et al. filed.
  28. Apr 18 2019
    Brief of respondents Larry Jander, et al. in opposition filed.
  29. Apr 08 2019
    Brief amici curiae of Chamber of Commerce of the United States of America, et al. filed.
  30. Apr 04 2019
    Motion to extend the time to file a response is granted and the time is extended to and including May 8, 2019.
  31. Apr 01 2019
    Motion to extend the time to file a response from April 8, 2019 to May 8, 2019, submitted to The Clerk.
  32. Mar 04 2019
    Petition for a writ of certiorari filed. (Response due April 8, 2019)