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Proving Loss Causation in Breach of Fiduciary Claims: The Circuit Split Widens (PDF)
Jackson Lewis P.C., via Bloomberg BNA Pension & Benefits Daily Link to more items from this source
June 29, 2017
"[M]ost circuit courts of appeals agree that ERISA requires that causation between the alleged breach and the claimed loss must be established before any liability may be imposed upon a breaching fiduciary. The courts are split, however, as to whether an ERISA plaintiff or the defendant-fiduciary bears the burden of proving the causal link between breach and loss. In other words, does the burden compose an element of the claim and thus fall upon the plaintiff, or does the burden constitute an affirmative defense and thus fall upon the defendant-fiduciary?"

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