"One of the key inconsistencies between the court[s] is whether index mutual funds can be used in determining whether plan participants can use index mutual funds to determine whether a plan sponsor breached their fiduciary duties in selecting investment options for a plan, as well as in calculating the damages resulting from a breach.... SCOTUS needs to decide these issues as soon possible in order to ensure uniformity by the federal courts in interpreting and applying ERISA and to minimize the damages caused by these inconsistencies."

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