On March 25, 2013, the U.S. Supreme Court invited the U.S. Solicitor General to express its views on whether the Court should grant a certiorari petition in Dudenhoeffer v. Fifth Third Bancorp, et al., No. 12-751. Although the Court did not grant review at this time, the Court’s order signaled a significant interest in the case. If the Court grants the petition, it will consider two key issues that regularly arise in lawsuits based on the fiduciary duty provisions of the Employee Retirement Income Security Act (“ERISA”): (1) whether, in assessing the pleading sufficiency of a complaint, fiduciaries of an employee stock ownership plan (“ESOP”) that permits investment in company stock are entitled to a presumption that they have acted lawfully; and (2) whether a plaintiff may sue under ERISA for alleged misrepresentations in SEC filings that have been incorporated by reference into communications with plan participants.

The Court’s resolution of the petition for certiorari—and its potential consideration of the issues presented—bears watching by officers, directors, and employees whose responsibilities regarding a company retirement plan may expose them to a fiduciary duty claim under ERISA.