Acting U.S. Solicitor General Elizabeth Prelogar submitted a brief saying a petition for a writ of certiorari should be granted by the U.S. Supreme Court regarding an ERISA fee fight case involving two 403(b) plans run by Northwestern University.
In a brief from Ms. Prelogar and other attorneys to the Supreme Court, she and the attorneys say a ruling by an appeals court upholding a federal District Court's dismissal of the lawsuit was incorrect.
A writ of certiorari is an order by the Supreme Court for a lower court to send up a case for review.
Participants in the two plans petitioned the Supreme Court in June 2020 after having lost at both the federal District Court and federal appeals court levels in their allegations that the university and its fiduciaries violated ERISA guidelines in managing the plans. In October, the U.S. Supreme Court asked then-acting U.S. Solicitor General Jeffrey B. Wall for an opinion in the case before the justices decided whether they would hear the complaint.
In the new brief, Ms. Prelogar and the attorneys said the appeals court's decision was incorrect because the petitioners plausibly allege "that respondents imprudently offered higher-cost investment funds when identical lower-cost funds were available" and also "that respondents imprudently failed to use any of several methods to reduce recordkeeping fees."
Participants had argued in the June 2020 petition that the ruling by the appeals court — upholding the District Court's dismissal of the initial complaint — conflicts with decisions by other federal appeals courts regarding similar ERISA complaints.
Attorneys for the university responded in an Aug. 24 petition to the Supreme Court.
"There is no disagreement among the lower courts regarding the proper legal standard for evaluating a motion to dismiss or the scope or content of ERISA's duty of prudence," the university's attorneys wrote.
One case cited in Ms. Prelogar's brief was the U.S. Supreme Court's ruling for participants in Glenn Tibble et al. vs. Edison International et al. in 2015.
The participants filed their complaint in August 2016 — and amended it in December 2016 — alleging that the university's plans charged excessively high fees, employed too many record keepers and offered too many investment options.
As of Dec. 31, 2019, the Northwestern University Retirement Plan had $3.3 billion in assets, and the Northwestern University Voluntary Savings Plan had $840 million in assets, according to the plans' most recent Form 5500 filings.
