The only excessive fee lawsuit to make it all the way to the Supreme Court is going to get another hearing.
The case is Tibble v. Edison International, which had been remanded to the 9th U.S. Circuit Court of Appeals in San Francisco by the U.S. Supreme Court last year. Last week a majority vote among the Ninth Circuit's active, nonrecused judges, determined that the case be reheard “en banc.”
The 9th Circuit’s ruling in April constituted something of a rebuff for the plaintiffs, who had been successful at convincing the Supreme Court that ERISA’s 6-year statute of limitations extended beyond the initial decision to place certain retail class mutual funds on the plan menu in 1999.
However, when the 9th Circuit reconsidered the issue in light of the Supreme Court’s ruling earlier this year (both it and the district court had originally ruled against the plaintiffs), it found that the plaintiffs never asserted that the plan fiduciaries violated their duty by failing to monitor the retail-class mutual funds – “they asserted only that we ought to read ERISA as excusing an otherwise time-barred lawsuit where the effects of a past breach continue into the future.”
And since the court was not presented with an argument about the ongoing duty to monitor, it is “elementary” that beneficiaries should not be allowed a second bite at the apple on remand.”
That said, the 9th Circuit’s new decision to reconsider the case with a full panel of judges, rather than the three-judge panel that rendered that decision, could be just that.
See also:
