Will the Supreme Court Review Standards for Pleading 401(k) Fiduciary Breach Cases?
As we have discussed on several different occasions, the Supreme Court has found itself inundated with ERISA cases.
The Seventh Circuit’s decision in Divane v. Nw. Univ., 953 F.3d 980 (7th Cir. 2020) (discussed just prior to this post) provides an opportunity for the Supreme Court to take yet another ERISA case in the upcoming term. Specifically, on March 26, the University of Pennsylvania sought certaiori in Sweda v. Univ. of Pa., 923 F.3d 320 (3d Cir. 2019) by arguing that Divane conflicts with the Third Circuit’s decision in Sweda. The University argued to the Supreme Court that the circuits reached different decisions resolving “identical” claims, creating dramatically different pleading standards,
Obtaining certiorari review is, of course, difficult. But one of the best ways to do so is by demonstrating a clear circuit split. It remains to be seen whether the Supreme Court agrees that Divane and Sweda present a circuit split that it needs to resolve.