Whether an ERISA plaintiff bears the burden of proving loss causation

QUESTIONS PRESENTED A fiduciary of an ERISA plan is personally liable for “losses to the plan resulting from” a breach of fiduciary duty. 29 U.S.C. § 1109(a). Fiduciaries determine what investment options an ERISA retirement plan will offer to participants. Options may include “actively managed” funds, which seek a higher return than the market through the direction of an investment adviser, and/or passively managed “index” funds, which seek to duplicate the holdings of an established market index such as the S&P 500. The questions presented are as follows: 1. Whether an ERISA plaintiff bears the burden of proving that “losses to the plan result[ed] from” a fiduciary breach, as the Second, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits have held, or whether ERISA defendants bear the burden of disproving loss causation, as the First Circuit concluded, joining the Fourth, Fifth, and Eighth Circuits. 2. Whether, as the First Circuit concluded, showing that particular investment options did not perform as well as a set of index funds, selected by the plaintiffs with the benefit of hindsight, suffices as a matter of law to establish “losses to the plan.” i