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Supreme Court Declines to Hear 'Would Have' vs. 'Could Have' ERISA Case
Fiduciary Matters Blog Link to more items from this source
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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