Sick of ERISA? The Supreme Court Declines to Hear First Circuit 401(k) Investment Case
On January 13, the Supreme Court denied certiorari in Putnam Investments, LLC v. Brotherston, a case that had generated considerable attention after the First Circuit issued its decision in October 2018. The First Circuit’s decision discussed a number of important ERISA topics, but Putnam sought certiorari on one issue: whether ERISA plaintiffs bear the burden of proving that “losses to the plan” were caused by a fiduciary breach.
Putnam claims there is a circuit split—one of the best way to obtain Supreme Court review—with the 2nd, 6th, 7th, 9th, 10th, and 11th Circuits holding that plaintiffs have the burden of proof, and the 1st, 4th, 5th, and 8th Circuits disagreeing. The differences between the circuits may be somewhat illusory and based more on the unique facts of the particular cases. Regardless, a final resolution of the issue will have to wait because the Supreme Court declined to hear the case.