United States Ninth Circuit

In an action for breach of fiduciary duty in the selection and retention of certain mutual funds for a benefit plan governed by ERISA, on remand from the U.S. Supreme Court, the district court's judgment in favor of an employer and its benefits plan administrator is vacated where: 1) defendants themselves failed to raise the waiver argument in their initial appeal, and thus forfeited this argument; 2) Phillips v. Alaska Hotel & Rest. Emps. Pension Fund, 944 F.2d 509 (9th Cir. 1991) did not apply to the continuing duty claims at issue under 29 U.S.C. section 1113(1), thus, only a 'breach or violation, such as a fiduciary's failure to conduct its regular review of plan investments, need occur within the six-year statutory period of section 1113(1), and the initial investment need not be made within the statutory period; and 3) the duty of prudence required defendants to reevaluate investments periodically and to take into account their power to obtain favorable investment products, particularly when those products were substantially identical -- other than their lower cost -- to products they had already selected.

Appellate Information

• Published 2016/12/16

Judges

• SMITH

Court

• United States Ninth Circuit

Counsel