Retirement Plans Committee of IBM v. Jander concerned a claim by Employee Retirement Income Security Act of 1974 (ERISA) plan beneficiaries that the fiduciaries in control breached their duty of prudence on the basis of insider information. The standard for stating such a claim had been previously set forth by the Court in Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. 409 (2014), which required consideration, in part, of whether a plan fiduciary could not have determined that disclosing negative information would have caused more harm than good to the ERISA fund. Originally, the question presented in this case was whether Dudenhoeffer’s “more harm than good” pleading standard was satisfied by “generalized allegations that the harm of an inevitable disclosure of an alleged fraud generally increases over time.” However, the Court noted that the arguments raised by the parties concerned other matters not addressed by the lower courts. So the per curiam Court remanded the case to the Second Circuit for further consideration. Justice Kagan, joined by Justice Ginsburg, filed a concurrence noting that the Second Circuit may well decide not to consider those alternative arguments if not properly preserved, and suggesting that those arguments directly conflicted with Dudenhoeffer. Justice Gorsuch also submitted a concurrence, arguing his view that the claims  by the beneficiaries in this case appear to require the ERISA fiduciaries to take action in a wholly different corporate capacity—something not addressed in Dudenhoeffer.

A link to the decision is here.