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Fourth Circuit's 'Would Have' Standard Exonerates Fiduciaries' Decision to Divest Company Stock After Corporate Spin-Off
Miller & Chevalier May 9, 2017
"Elaborating somewhat on how the 'would have' standard should be applied, the Fourth Circuit stated that the fiduciaries' burden was to show 'by a preponderance of the evidence that a prudent fiduciary would have acted' as they did.... Plan fiduciaries hoping that the Fourth Circuit would further define how to gauge whether a prudent fiduciary 'would have' taken a particular action or the relationship between establishing a breach and loss causation will be left unsatisfied." [Tatum v. RJR Pension Inv. Comm., No. 16-1293 (4th Cir. Apr. 28, 2017)]
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