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"If you are a plan sponsor or a broker placing a specialty drug carve-out, this case has changed what you can rely on. Plenty of vendors in the market sell what they call specialty carve-outs, alternative funding programs, or international sourcing programs. Some are well-run programs. Others source drugs from outside the U.S. FDA-approved supply chain.... The court found Gilead likely to succeed in proving that international sourcing of FDA-approved drugs through AFPs is unlawful and that the companies and individuals facilitating it can be liable." [Gilead Sciences, Inc. v. Meritain Health, Inc., No. 24-3566 (D. Md. Jun. 24, 2025; on appeal to 4th Ci. No. 25-1828)]  MORE >>

"[T]he Court granted certiorari to resolve a circuit split over how to calculate an employer’s withdrawal liability from a multiemployer pension plan. It also invited the US Solicitor General to file a brief in another case about ERISA’s duty of prudence. The Court is waiting to hear from the Solicitor General in response to an invitation the Court issued in April in a case about whether burden-shifting for loss causation applies in ERISA cases." 
[M & K Employee Solutions, LLC v. Trustees of the IAM National Pension Fund, No. 22-7157 (D.C. Cir Feb. 9, 2024; cert. pet. granted Jun. 30, 2025 No. 23-1209;  
Johnson v. Parker-Hannifin Corp., No. 24-3014 (6th Cir. Nov. 20, 2024; cert. pet filed Mar. 26, 2025, No. 24-1030; SG brief req. Jun. 30, 2025);
Pizarro v. Home Depot, No. 22-13643 (11th Cir. Aug. 2, 2024; cert. pet. filed Dec. 3, 2024; SG brief requested Apr. 21, 2025)]  MORE >>

"Aside from renewing its plea for the Court to focus on the Hobby Lobby case ... the [Administration's] new filings urged the Court to hold onto the Conestoga Wood case until Hobby Lobby is decided, and urged a denial because of later legal developments in the Autocam case. It urged the Court to deny review of Liberty University's new challenge to the individual and employer mandates in the [ACA], arguing that there is no conflict on any of the issues raised in that petition. These filings complete the government's responses to the ACA cases now at the Court, and may allow the Court to speed up its consideration of these petitions."  MORE >>

"In a unanimous decision delivered by Justice Ketanji Brown Jackson, the Court held that ERISA Sections 1391 and 1393, which govern the calculation of withdrawal liability, do not require the actuarial assumptions to be selected on or before the measurement date. Instead, the Court said that the 'as of' language in Section 1391 means that while the hard data that feeds the UVB calculation must be fixed on the measurement date, the calculation itself can be performed after the date." [M&K Employee Solutions, LLC v. Trustees of the IAM National Pension Fund, No. 23-1209 (S. Ct. May 21, 2026)]  MORE >>

"Courts presiding over the recent spate of lawsuits challenging defined benefit (DB) plan pension risk transfers (PRTs) have issued mixed rulings on whether plaintiffs can proceed with their ERISA claims.... [L]lower courts considering PRT cases are now confronting an issue the high court left unresolved in Thole: Whether DB plan participants can establish standing by alleging that a fiduciary breach has put their future benefits at increased risk."  MORE >>

"The court rejected the TPA's request to dismiss the case, allowing several claims to proceed. The court concluded that the participant plausibly alleged deceptive conduct under state law, determining that delayed disclosure of the fee and its characterization as a processing fee rather than an administrative fee could mislead participants, especially when the fee amount exceeded statutory limits. " [Patterson v. Wex, No. 25-8557 (N.D. Calif. Feb. 10, 2026)]  MORE >>

"The nation's highest court's consideration of a 401(k) suit involving alternative investments and the need for a 'meaningful benchmark' has been bumped till next term. While the justices recently agreed to extend briefing due dates in the case ... its absence on the court's April calendar indicates a delay, in this case till next term." [Anderson v. Intel Corp. Inv. Policy Comm., No. 22-16268 (9th Cir. May 22, 2025; cert. pet. granted Jan 16, 2026, No. 25-498)]  MORE >>

"In their petition for consideration of their case by the Supreme Court, the plaintiff basically argued that the application of a 'meaningful benchmark' standard baseline for consideration required 'that a complaint must identify a "relevant comparator" fund with "similar objectives" against which the performance of the challenged fund can be measured' -- even though ... nothing in ERISA's text explicitly requires such a rule." [Anderson v. Intel Corp. Inv. Policy Comm., No. 22-16268 (9th Cir. May 22, 2025; cert. pet. granted Jan 16, 2026, No. 25-498)]  MORE >>

"Every dismissal so far rests on one or more reversible errors. The most common: [1] Courts assume PRT annuities are safe -- contrary to market evidence ... [2] Courts misapply ERISA's burden of proof ... [3] Courts ignore prohibited transactions (the strongest claim) ... [4] Courts wrongly treat PBGC loss as irrelevant ... [5] Courts ignore offshore private-credit exposures inside insurer portfolios ... Judges have been asleep at the wheel. Appeals are not just warranted -- they are essential."  MORE >>

"It is difficult, if not impossible, to reconcile the Supreme Court's analysis in the two 'stock drop' cases with the analysis conducted by courts in ESOP cases.... The Supreme Court's analysis, including how it interprets ERISA provisions, what consideration it gives to ERISA's legislative history and what consideration it gives to the context of the fiduciaries' decision, may provide further support for dismissal arguments in ESOP cases."

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