Plaintiffs Push Back on ‘Friends’ Filings in Excessive Fee Suit

It’s a war of “words” – or word count – in a motion to reject the input from amicus curiae filings in an excessive fee case.

The plaintiff in the excessive fee suit involving the administration of the 403(b) plan of the University of Pennsylvania contends that defendants’ proposed amicus filings “seek to supplement Defendants’ 48-page, 11,592 word brief with a combined total of 75 additional pages containing 16,187 additional words,” and would, if accepted, “greatly expand the scope of the factual and legal arguments that Plaintiffs must address within the 6,500-word limit allowed for their reply brief,” in that “instead of responding to a single 11,592-word brief, Plaintiffs would have to respond to four briefs totaling nearly 28,000 words.”

At issue are friend of the court briefs filed by the Chamber of Commerce of the Unites States of America and the American Benefits Council (28-page, 6,456-word brief), TIAA (27-page, 5,920-word brief), and the most recent, a group of higher education associations (20-page, 3,802-word brief).

“Typically, the option of filing a reply brief provides the appellant more total words than the appellee,” comments the plaintiffs here, going on to claim (in a 6-page response) that “the proposed amicus briefs would reverse that dynamic, providing Defendants-Appellees an unwarranted 8,000-word advantage.”

Judge Gene E.K. Pratter approved the University of Pennsylvania defendants’ motion to dismiss the case last September. The amicus filings, and subsequent response, deal with the appeal of that decision.

In the filing, the plaintiff asserts that the proposed briefs are not “relevant to the disposition of the case,” that TIAA’s proposed filing “simply disputes the truth of Plaintiffs’ allegations regarding TIAA’s products and services,” and that “all three proposed briefs seek to inject irrelevant issues that are not before the Court because they were not raised in Defendants’ opening brief.” Specifically, in the case of the brief filed by the Chamber/ABC and the education “consortium,” the plaintiff argues that the defendants themselves did not put forth the argument that 403(b) and 401(k) plans are inherently different, and should have different standards applied that is a key element of those friend of the court briefs.

Also cited – that the Chamber’s brief “…urges the Court to extend to ERISA fiduciary breach claims the “same approach to pleading” adopted in the context of “antitrust, retaliation, supervisory liability, RICO, and securities claims.” Similar to the above argument, since the University of Pennsylvania defendants “do not advocate for the adoption of pleading standards developed in disparate areas of law,” the plaintiff here argues that their proposed brief is “thus irrelevant.”

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