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Proving Loss Causation When Pension Plan Investment Results Disappoint
King & Spalding Nov. 9, 2018 "While the Brotherston court was convinced that ERISA fiduciaries can 'easily insulate' themselves from liability by following a prudent process or offering a diverse selection of low-cost funds, that is cold comfort to most plan sponsors, who see significant litigation risk in the burden-shifting approach.... ERISA fiduciaries in circuits that follow the burden-shifting rule adopted in Brotherston should consider offering expert analysis demonstrating the objective reasonableness of the challenged funds, or at least demonstrating a measure of damages that establishes less losses than the model offered by the plaintiffs' expert." [Brotherston v. Putnam Investments, LLC, No. 17-1711 (1st Cir. Oct. 15, 2018)] |
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