Whether Dudenhoeffer's 'more harm than good' standard can be satisfied by generalized allegations

QUESTION PRESENTED In Retirement Plans Committee of IBM v. Jander, 140 S.Ct. 592 (2020), this Court granted certiorari to resolve an entrenched circuit split as to whether the “more harm than good” standard of Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. 409 (2014), for ERISA claims against fiduciaries of employee stock ownership plans can be satisfied by generalized allegations that the harm of an inevitable disclosure of an alleged fraud generally increases over time. On the merits, the parties extensively briefed that question presented but also provided other arguments regarding the viability of plaintiffs’ complaint. Without addressing the question presented, this Court vacated the Second Circuit’s decision and remanded for that court “to decide whether to entertain” those other arguments. On remand, following briefing, the Second Circuit declined and “reinstat[ed] ... [its] initial opinion,” thus reestablishing the same circuit split that led this Court previously to grant certiorari, a split that has only deepened in light of a recent Eighth Circuit decision expressly rejecting the Second Circuit’s minority view. The questions presented are: 1. Whether Dudenhoeffer’s “more harm than good” standard can be satisfied by generalized allegations that the harm of an inevitable disclosure of an alleged fraud generally increases over time and thus plan fiduciaries should have made earlier disclosures through regular securities-law filings. 2. Whether ERISA imposes a duty on a plan fiduciary who is also a corporate officer to use inside information for the benefit of plan participants.