Supreme Court Rejects “Presumption of Prudence,” Adopts New Pleading Standards in Fifth Third Bancorp v. Dudenhoeffer

In a highly anticipated decision, the Supreme Court recently ruled that ESOP fiduciaries are not entitled to a presumption of prudence under ERISA in connection with their decisions to buy, hold or sell the employer’s securities. While the elimination of this presumption is a loss for ESOP fiduciaries, the decision imposes additional burdens on plaintiffs that will make it easier for plan sponsors and fiduciaries to defend so-called “stock-drop” cases. It also requires plan sponsors to reevaluate plan language requiring that certain funds be invested in employer securities and to reconsider hiring an independent fiduciary to manage the employer stock fund.

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Wilber H. Boies, PC
Wilber (Bill) Boies focuses his practice on business dispute counseling and business litigation throughout the country. Bill leads a pro bono program that advises national legal aid organizations, Interest on Lawyers’ Trust Accounts (IOLTA) programs and bar foundations about obtaining cy pres awards from the undistributed residue of class action settlement funds and frequently submits amicus briefs opposing appeals by serial objectors who argue for the elimination of cy pres awards in class action settlements. Read Bill Boies' full bio.


Chris C. Scheithauer






Stephen Pavlick
Stephen Pavlick focuses his practice on employee benefits matters for multinational corporations. He concentrates on qualified plans, related fiduciary and other Employee Retirement Income Security Act (ERISA) issues, deferred compensation and equity arrangements, and funding strategies for post-retirement welfare benefits. He has worked extensively with cash balance plans. Read Stephen Pavlick's full bio.

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