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Structural Impediments to Claims for Breach of Fiduciary Duty (PDF)
Stephen D. Rosenberg in Journal of Pension Benefits Link to more items from this source
[Guidance Overview]
Apr. 9, 2012
"[T]here is no perfect correlation, or even close to perfect correlation, between the ratio of well-run plans to problem plans and the batting average of participants and their lawyers in breach of fiduciary duty suits brought against plans and fiduciaries. Interestingly, unlike in many areas of the law, we cannot attribute this to jury bias or the vagaries of the jury system, since, of course, there are no juries in such cases.... [T]he relatively high level of failure for such suits takes place predominately at a much earlier stage of the process, either at the motion to dismiss stage or at the summary judgment stage. So what accounts for that disjunct? ... I have come to think that it stems from several factors, which, in conjunction, create a structural barrier to the successful prosecution of such claims."

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