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Text of Fourth Circuit Opinion Adopting 'Would Have' Standard for Fiduciary Prudence (PDF)
U.S. Court of Appeals for the Fourth Circuit Link to more items from this source
Aug. 5, 2014
85 pages. "[T]he district court found that RJR did indeed breach its fiduciary duty of procedural prudence and so bore the burden of proving that this breach did not cause loss to the plan participants. But the court concluded that RJR met this burden by establishing that 'a reasonable and prudent fiduciary could have made [the same decision] after performing [a proper] investigation' ... [We], like our sister circuits, have adopted the 'would have' standard to determine a fiduciary's objective prudence. As the Supreme Court has explained, the distinction between 'would' and 'could' is both real and legally significant .... The 'would have' standard is, of course, more difficult for a defendant-fiduciary to satisfy. And that is the intended result." [Tatum v. RJR Pension Investment Committee, No. 13-1360 (4th Cir., Aug. 4, 2014)]

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