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Supreme Court Declines to Hear 'Would Have' vs. 'Could Have' ERISA Case
Fiduciary Matters Blog 
June 29, 2015
"The 4th Circuit concluded that the defendants failed to have a prudent process because they failed to consider the best interests of the participants. The question then becomes, once you've shown a failure of procedural prudence, what can the fiduciary prove to show they still made the right substantive choice? The defendants wanted a standard that would have allowed them to put on evidence that a prudent fiduciary COULD have made the same decision. The plaintiffs, and ultimately the 4th Circuit, supported a standard where the defendant must show that a prudent fiduciary WOULD have made the same decision." [Tatum v. RJR Pension Investment Comm., No. 13-1360 (4th Cir. Aug. 4, 2014; cert. denied June 29, 2015)]
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