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Justices Eye Another ERISA Case, Signal Interest in Penn Dispute

Jan. 28, 2020, 3:35 PM

The U.S. Supreme Court on Monday signaled its interest in a lawsuit over the University of Pennsylvania’s retirement plan by asking university employees to respond to the school’s petition for review.

A “call for response” from the justices indicates someone at the high court is interested in the case, and it increases the chances the case will be heard from 1% to 5%, according to a Bloomberg Law analysis spanning 2010 to 2018.

Penn’s petition asks the justices to correct errors in how the U.S. Court of Appeals for the Third Circuit handles allegations of fiduciary breach under the Employee Retirement Income Security Act. The Third Circuit’s decision greenlighting the Penn workers’ ERISA claims departs from settled law governing how courts evaluate complaints and “sows enormous confusion” for retirement plan fiduciaries, Penn said.

Penn is one of 20 prominent universities to be sued over its retirement plan fees and investment options since 2016. The Third Circuit decision being challenged marked the first time an appeals court considered the merits of this series of lawsuits, which has spawned one trial and garnered nearly $70 million in settlements.


This signal from the justices comes two weeks after they issued their first of up to four ERISA opinions expected to be issued this term.

The court on Jan. 14 sent a dispute over the company stock in International Business Machine Corp.'s 401(k) plan back to an appeals court for further review. It’s also expected to issue decisions involving ERISA’s deadline to sue and pension plan standing.

And on Jan. 10, the justices granted a fourth ERISA petition in a case raising a preemption challenge to a state drug-pricing law. The court hasn’t announced when it will hear that case.

In recent years, the court has typically heard no more than two ERISA cases per term.

Penn is represented by Morgan, Lewis & Bockius LLP. The Penn employees are represented by Schlichter Bogard & Denton LLP.

The case is Univ. of Pa. v. Sweda, U.S., No. 19-784, request for response to petition for certiorari 1/27/20.

To contact the reporter on this story: Jacklyn Wille in Washington at

To contact the editors responsible for this story: Rob Tricchinelli at; Patrick L. Gregory at