BENEFITS DIGEST

Johnson & Johnson filed a supplemental-authority letter telling the Third Circuit that the Supreme Court’s denial of review in Aldridge leaves intact the Sixth Circuit’s limit on monetary relief for fiduciary-breach claims like the drug-pricing fee suit against it. The Supreme Court’s refusal to hear the case settles nothing on the merits and isn’t an endorsement of the lower court’s reasoning. The filing is advocacy in a pending appeal, and the Third Circuit hasn’t ruled.

The Supreme Court on October 19 [declined to take up](https://www.supremecourt.gov/orders/courtorders/101926zor_q8l1.pdf) Gwynne Wilcox’s challenge to her removal from the National Labor Relations Board, leaving the D.C. Circuit’s decision in place. Ogletree Deakins discusses the relationship to the pending Slaughter case and what the denial means for Board composition and quorum questions. A denial of review resolves nothing on the merits and carries no explanation, so the reasons remain the authors’ inference rather than the Court’s statement.

A Colorado federal judge ruled that participants challenging an employee stock ownership plan transaction do not have to prove overpayment as an additional element of their prohibited-transaction claims before the fiduciary must establish an exemption, the exception that permits an otherwise prohibited transaction. In Harrison v. Envision, the court applied the Supreme Court’s Cunningham decision to the allocation of proof at trial. Participants still must establish the prohibited transaction’s elements, and the court separately found their alleged overpayment injury sufficient for standing. The order sets trial burdens without deciding liability or awarding money.

In this opinion piece, Eric Dyson argues that plan committees should document their investment comparisons now rather than wait for the Supreme Court to define a meaningful benchmark in Anderson v. Intel, argued October 6. His distinction is between the benchmark a manager markets against and the comparison a fiduciary needs when deciding whether to keep an investment. The advice is one practitioner’s view, and Dyson urges committees to document why their comparisons fit the plan’s investments while the case is pending.

On October 19 the Supreme Court requested responses in three petitions asking when outdated actuarial assumptions in pension benefit calculations violate ERISA, Southern Co. v. Drummond from the Eleventh Circuit and the consolidated Sixth Circuit cases [FedEx v. Watt](https://www.supremecourt.gov/docket/docketfiles/html/public/26-360.html) and [Bakery Workers Pension Committee v. Reichert](https://www.supremecourt.gov/docket/docketfiles/html/public/26-387.html). Each respondent had waived a response, and all three petitions were distributed for the November 6 conference before the requests issued, with responses now due November 18. The ERISA Industry Committee filed amicus briefs on the Sixth Circuit dockets on October 16, arguing per [PLANSPONSOR’s report](https://www.plansponsor.com/eric-files-amicus-briefs-in-forfeiture-pension-calculation-cases/) that the ruling below would expose thousands of defined benefit plans to litigation over competing actuarial opinions. A response request signals interest, not a grant, but three in one day on one question is worth watching.

This preview collects the term’s employment and benefits questions, led by Anderson v. Intel on what a 401(k) plaintiff must plead about comparator benchmarks. It also covers the personal-staff exemption dispute in Younge and the Title IX employment question in Crowther. The benchmark question is the one with daily consequences for plan sponsors, since pleading standards decide which fee and performance suits survive long enough to cost money. (Editor’s note: The case comes from the Ninth Circuit, not the Eleventh, and was argued October 6.)

The Supreme Court has declined to review the suit by 96 former Ruby Tuesday managers and executives against Regions Bank over their top-hat plan, a deferred-compensation arrangement for a select group of managers and executives that sits outside most of ERISA’s protections. The [Sixth Circuit](https://digest.theinnerfirm.com/docs/aldridge-v-regions-bank-opinion-2025-07-17.pdf) had rejected their state-law claims and the money remedy they sought, called a surcharge, in a dispute over accounts informally funded with corporate-owned life insurance. PLANADVISER also describes the government’s argument that the case was a poor vehicle for the broader question about equitable monetary relief under ERISA. The denial leaves the Sixth Circuit’s outcome in place without endorsing its reasoning.

Proskauer analyzes the full Eleventh Circuit’s [decision](https://digest.theinnerfirm.com/docs/bolton-v-inland-fresh-seafood-opinion-2026-10-13.pdf) in Bolton v. Inland Fresh Seafood, which overruled the circuit’s longstanding rule that participants must first use a plan’s internal claims and appeals process before suing on statutory ERISA claims such as fiduciary breach, in litigation over an ESOP’s alleged $92 million purchase. The firm keeps two limits in view. The ruling leaves the existing exhaustion rules for claims seeking plan benefits unchanged, and the court left open whether a plan provision expressly requiring exhaustion of statutory claims would be enforced. Predictions about Supreme Court review are the firm’s, not anything the opinion holds.

PLANSPONSOR reports the Supreme Court’s October 13 denial of review in the suit by 96 former Ruby Tuesday managers and executives against Regions Bank. The [Sixth Circuit](https://digest.theinnerfirm.com/docs/aldridge-v-regions-bank-opinion-2025-07-17.pdf) had rejected their state-law claims and the money remedy they sought, called a surcharge. The denial leaves that outcome in place without endorsing its reasoning or resolving the broader dispute over equitable remedies under ERISA.

Cohen & Buckmann’s short note flags Carol Buckmann’s comments to Pensions & Investments on the Supreme Court argument in the Intel case, which tests whether fiduciary-breach claims need a meaningful benchmark at the pleading stage. The note is a pointer to that coverage rather than an analysis of the argument itself.

The Supreme Court declined on October 13 to hear former Ruby Tuesday executives’ suit against Regions Bank over their deferred compensation. The executives’ money was held in a rabbi trust, whose assets remained available to the company’s creditors in bankruptcy. They received a partial recovery through a bankruptcy settlement, then pursued the bank. The [Sixth Circuit](https://digest.theinnerfirm.com/docs/aldridge-v-regions-bank-opinion-2025-07-17.pdf) held that ERISA displaced their state-law claims and that the monetary compensation they sought wasn’t available under ERISA’s provision for equitable relief. The denial leaves that ruling standing without endorsing its reasoning. For executives, the underlying risk remains worth understanding. Putting deferred compensation in a rabbi trust doesn’t protect it from the employer’s creditors.

A week after the Anderson v. Intel argument, Quarles’s appellate and benefits teams predict the Court will affirm the Ninth Circuit and require a meaningful comparison investment in suits over fund performance, with the real question being how much guidance the opinion gives. The lawyers highlight two exchanges from the argument. Justice Kavanaugh observed that half of all funds will always sit below the median. Justice Barrett pressed whether calling an apple an apple requires criteria, suggesting even the plaintiffs had conceded the principle and were only fighting about its content. And the Labor Department’s pending fiduciary proposal already defines a meaningful benchmark for funds holding alternative assets, so sponsors may face the question no matter how the case ends. The firm’s advice is to document the objectives behind each investment selection now.

Ballard Spahr’s Edward Rogers and Brian Pinheiro expect the Court to require meaningful investment comparisons, but offer two cautions for sponsors. First, a win for Intel may change less than headlines suggest, since every circuit except the Sixth already requires some form of meaningful benchmark, and the Court may adopt a less demanding version than some circuits apply, with the Solicitor General urging a test requiring only that a comparator share the challenged fund’s goals. Second, the flow of underperformance suits hasn’t slowed since the Supreme Court agreed to hear the case, and most lower courts have kept dismissing complaints for failing to plead benchmarks, as though expecting the Court to uphold that requirement. The authors flag the moment plaintiffs’ counsel conceded that performance allegations require some inherent comparison, which several justices treated as giving up the core of the appeal.

Callbeck v. Wellington Management Company, filed October 9 in Massachusetts federal court, asks whether an investment manager prudently ran its own $3.16 billion retirement plan. More than 40 percent of the plan’s assets sit in investment funds managed by Wellington itself, and three of the four challenged funds are Wellington’s own products, holding roughly $267 million of participant money at the end of 2024, alongside $90 million in the also-challenged Vanguard U.S. Growth Fund. The complaint cites other public retirement plans that placed the challenged funds under closer review or removed them, including a Connecticut utility district that moved its Wellington large-cap money to an index fund for greater returns and lower costs. It argues that Wellington’s own committee had access to the same warning signs but kept every one of the funds. The suit estimates plan losses exceed $50 million. It was filed by Almeida Law Group, the firm behind the Rockland Trust complaint days earlier, and the Supreme Court’s pending Intel decision could affect what the plaintiffs must allege to keep the case moving.

Three former employees sued HP and its plan committee on October 7 in San Jose federal court over two custom funds in the company’s $10.85 billion 401(k) plan, the U.S. Large Cap Equity Fund and the U.S. Small/Mid Cap Equity Fund. The complaint alleges the large-cap fund trailed the Russell 1000 index in nine of the eleven calendar years from 2015 through 2025 and the small/mid-cap fund trailed the Russell 2500 in eight of eleven, underperformance it says was visible on the funds’ own fact sheets and the Fidelity screens shown to participants. The two funds held about 23 percent of plan assets and sit inside all twelve of the plan’s Birth Date Funds, the investments used for participants who don’t make their own selections. The complaint therefore also seeks compensation for losses suffered by participants who never selected either fund directly, and it estimates plan losses above $300 million. The suit brings distinct prohibited transaction claims as well, over the plan’s recordkeeping and revenue-sharing payments to Fidelity, its payments to HP itself for administrative services, and employee contributions deposited late in seven straight years, delays the plan’s own filings classify as nonexempt prohibited transactions. The plaintiffs argue that their chosen comparisons meet the standard the Supreme Court is considering in the Intel case.

The Supreme Court’s Intel argument focused on how similar investments must be before comparing their returns can support a claim that a 401(k) plan was mismanaged. Nevin Adams’ recap works justice by justice. Kagan accused the participants’ counsel of attacking a caricature of the Ninth Circuit opinion, which she read as requiring comparable objectives and risk rather than identical investments. Gorsuch kept pulling the discussion back to the question presented, benchmarks for underperformance claims only, and Kavanaugh pressed the difference between results and prudence, noting a sound strategy can lose money while an imprudent one profits. Barrett asked how to define meaningful without inviting lower courts to demand a twin. Intel’s counsel conceded that comparators need not share asset allocations and that risk-adjusted tools exist, and the government argued plaintiffs can plead imprudence without any comparator when they are not relying on underperformance. Adams reads the argument as receptive to requiring a meaningful comparison, with the real fight over how much content the word carries.

Judge Christopher Boyko’s 21-page order in Kiles v. Goodyear splits the workers’ challenge to the tire maker’s nicotine surcharge. The notice claim survives. Plaintiffs allege Goodyear’s plan materials describing the surcharge omitted the required statement that an employee’s own physician’s recommendations would be accommodated as a reasonable alternative, and the court held that omission, if proven, makes the surcharge itself unlawful, giving everyone who paid it standing through direct monetary harm. The opinion’s reach extends past Goodyear. The court rejected the argument that the physician-accommodation regulation cannot be enforced after Loper Bright, the Supreme Court decision that ended judicial deference to agencies’ legal interpretations, holding the rule is a clarification that fills in the details of the statute’s notice requirement. The fiduciary and prohibited transaction claims were dismissed. In this court’s view, designing and collecting a surcharge is a decision the company makes as employer rather than as plan fiduciary, and the complaint alleged harm to employees rather than losses to the plan. A request to amend buried in the opposition brief was denied for not being a proper motion. The class allegedly paid $17.4 million in surcharges from 2020 through 2025, and discovery now begins on the claim that survived.

The complaint against Rockland Trust alleges that the T. Rowe Price Growth Stock Fund, in the bank’s 401(k) menu since 2016, suffered more than $33 billion in net investor outflows from 2016 through 2025, including $3.4 billion last year, and that a prudent fiduciary would have treated that exodus as a red flag. The plan held about $56 million of its $300 million in the fund across 2,326 participants as of the end of 2024. Almeida Law Group filed the case one day after the Supreme Court heard Anderson v. Intel, and PLANADVISER places it squarely in that pleading-standard fight, noting the Labor Department and American Benefits Council amicus briefs arguing that poor performance alone does not prove a fiduciary breach.

More than 90 former Ruby Tuesday executives lost their supplemental retirement savings when the restaurant chain went through bankruptcy in 2020, and they have been trying to recover the money from Regions Bank, the plans’ trustee, ever since. The Sixth Circuit ended their case by holding that their request for surcharge, meaning compensation for losses allegedly caused by the trustee’s breach of duty, was really a claim for money damages that ERISA does not allow. Invited to weigh in on their Supreme Court petition in Aldridge v. Regions Bank, the Solicitor General filed a brief in late August agreeing that the Sixth Circuit conflated surcharge with damages and got the law wrong, yet urging the Court to deny review anyway. The plans here are top-hat plans for executives, which sit outside ERISA’s fiduciary rules, so the government sees the case as a poor vehicle for resolving when surcharge is available. The justices are scheduled to consider the petition at their October 9 conference. For deferred compensation participants the practical lesson stands either way. Top-hat plans leave executives as unsecured creditors when the employer fails, and the remedies afterward are thin.

Encore Fiduciary and Davis & Harman catalog the Anderson argument justice by justice and set it inside the circuit split, with the Second, Seventh, Eighth, Ninth and Tenth Circuits requiring a meaningful benchmark in fee or underperformance cases while the Sixth and Eleventh do not. Two threads stand out in their account. Justices Kavanaugh and Gorsuch pressed whether poor performance alone can ever show a breach, given that the duty of prudence is about a fiduciary’s process, and Justice Kagan pushed for the Court to say what meaningful requires, worrying that some lower courts already demand comparator funds with identical asset allocations, which she suggested goes too far.

The first wave of what-now commentary after the Anderson argument splits on whether fiduciaries should change anything before the decision. Plaintiff-side litigator Charles Field would have committees direct their consultants to compare each fund against a handful of alternatives with genuinely similar risk and objectives, on the theory that the benchmark question is coming for sponsors either way. Sidley’s Caroline Wong counters that the underlying prudence standards have not changed and the win is likely to be uniformity, with defendants nationwide able to make the same motion to dismiss arguments. The sleeper angle is regulatory. The Labor Department’s pending alternative-assets safe harbor proposal lists performance benchmarking among its factors, the Solicitor General’s office told the justices the DOL would welcome guidance on what meaningful means, and Simpson Thacher’s Erica Rozow expects the agency to hold its final rule until the opinion lands.

Brian Anderson’s argument wrap collects the practitioner consensus that the justices found common ground quickly on requiring some comparator with similar aims, leaving the real fight over how much content the word meaningful should carry. Troutman Pepper’s Emily Zimmer flags the exchanges over Intel’s documented risk-mitigation objective as a reminder that a clearly recorded investment rationale matters under any standard. SCOTUSblog’s Ronald Mann read the second half of the argument as the justices asking counsel for drafting advice on an affirmance and predicts a brisk, likely unanimous decision that could arrive well before the usual June crunch.

A new lawsuit against Rockland Trust puts detailed fund comparisons at the center of its challenge to the bank’s roughly $300 million 401(k) plan. Filed October 7, the day after the Supreme Court heard Anderson v. Intel, Labelle v. Rockland Trust alleges that plan fiduciaries kept the T. Rowe Price Growth Stock Fund despite years of returns below its Russell 1000 Growth benchmark. The complaint identifies six other investments, two Fidelity funds, two JPMorgan funds, an Alger fund and a Russell 1000 Growth index fund, and compares their objectives, risks and potential rewards, supported by quarterly measures of performance adjusted for risk. It is also the same T. Rowe Price fund an Oregon court found insufficiently pleaded in Foley v. Legacy Health on September 30. Those details address the question now before the Supreme Court. How similar must investments be before their returns support a claim that plan fiduciaries acted imprudently? The comparisons give the plaintiff’s argument more substance, but whether they are enough to keep the case in court remains undecided.

Peter Sessions’ weekly survey leads with the Anderson argument, reading it as a good day for plan administrators. Two mental health decisions stand out in the rest of the issue. In the Northern District of California, the court in the long-running Wit reprocessing litigation against United Behavioral Health granted most of the class’s summary judgment motion, giving binding effect to earlier findings that the company’s coverage guidelines were improperly restrictive and excusing further administrative appeals as pointless, which keeps the largest behavioral health claims administration case in the country moving. And an Illinois court allowed a mental health parity claim over round-the-clock nursing coverage at a residential treatment center to proceed against a plan sponsored by insurance brokerage Arthur J. Gallagher. The survey also collects the week’s decisions on late appeals, discretionary clause bans, a pension calculator error that produced no remedy, and a $497,500 preliminary settlement approval.

The distinction that matters in Groom’s recap of the Anderson argument is between claims built on investment performance and claims attacking the decision-making process. The Ninth Circuit required a meaningful benchmark only when a plaintiff asks the court to infer imprudence from how an investment performed; a complaint that pleads facts about a flawed fiduciary process directly does not need a comparator at all. At argument, the justices appeared broadly agreed that performance-based claims need an apples-to-apples comparator, and the open question is how much content the Court will give the word meaningful, with a fund’s objectives, risk-adjusted returns and stated benchmarks among the candidates. Groom expects a decision at the beginning of next year.

Two additions in Emily Boyle’s wrap of the Anderson v. Intel argument go beyond the courtroom. The Labor Department’s pending fiduciary-prudence proposal would have fiduciaries designate a meaningful benchmark for each plan fund in advance, so sponsors may face the question the justices debated no matter how the case comes out. And Sanford Heisler’s Charles Field predicts the Court will define what a meaningful comparison requires and send the complaint back to the Ninth Circuit to apply that definition. The questioning focused on what makes an investment comparison meaningful. Justice Thomas pressed an apples-to-oranges framing, Justice Sotomayor asked the participants’ counsel how to pick the right kind of apple and drew the answer that it is “entirely context dependent,” and Justice Barrett asked Intel’s counsel whether the Court should simply answer yes or say what meaningful means.

The order list issued Monday, October 5, on the opening day of the term, denied review in four cases benefits lawyers were watching. Zavislak v. Netflix leaves standing a Ninth Circuit ruling that the service contracts between Netflix’s health plan and its administrators aren’t plan documents a participant can demand under ERISA’s disclosure rules. McLean v. Delta Air Lines ends former pilots’ effort to revive a suit claiming Delta pushed them out over military leave, leaving the Eleventh Circuit’s dismissal in place. Gasper v. EIDP closes a retiree’s challenge to a reduction of his monthly annuity, with Justice Alito recused. And in United Airlines v. Kincannon, the Court declined to review the class certification United challenged in a suit by employees placed on unpaid leave after receiving religious exemptions from its COVID-19 vaccine policy, over a noted vote by Justice Kavanaugh to grant review. The case traveled below as Sambrano v. United Airlines, where the panel affirmed certification of a 2,221-member class over a partial concurrence by Judge Willett questioning whether religious sincerity can ever be a common question. A denial isn’t a ruling on the merits. It leaves each lower court decision in place without endorsing its reasoning.

Yohanna Wallace has filed her opposition to Pilgrim’s Pride’s motion to dismiss her suit over the 401(k) plan’s only stable value option, a Great-West general account contract. The plaintiff argues the contract exposed participants to more risk while paying less than five safer alternatives, every year from 2013 through 2024, and that the plan’s fiduciaries never used their bargaining power to demand better rates or a better product. The brief leans on decisions issued in summer 2026 sustaining nearly identical claims, including one involving the same Great-West contract, and it cites the Supreme Court’s pending Anderson v. Intel case, set for argument October 6, on what a participant must plead. The motion is now with Judge Sweeney in Colorado federal court.

Capital Group has asked the Supreme Court to review the Ninth Circuit’s July 30 decision refusing to send an ERISA fiduciary-breach suit against it to arbitration. Whether plan arbitration provisions can keep participants’ fiduciary-breach claims out of court is a question the courts of appeals have divided over for years. The Court requested a response to the petition on October 1, after the participant initially waived one; her response is due November 2. The justices haven’t decided whether to hear the case.

Ranking Member Bobby Scott is pushing a trio of bills he says belong in any future SECURE 3.0 package. The first would require that one-time retirement advice, including rollover recommendations, be given in the saver's best interest, and would stop advisers from avoiding fiduciary status through fine print saying their advice isn't the main basis for a decision. The second would expand participants' ability to sue over pension-plan mismanagement, responding to the Supreme Court's limits on standing in its 2020 Thole decision. The third, co-sponsored with Rep. Mark DeSaulnier and Sen. Tina Smith, would bar forced arbitration and class action waivers in ERISA plans and would outlaw the plan terms that give claim administrators deferential court review of their own benefit denials. The bills have been introduced but haven't become law. They map where Democrats want the statute to go.

The last claim standing in Phillips v. Cobham Advanced Electronic Solutions, the 401(k) suit against the aerospace company now owned by Honeywell, was that the plan refused participants' request for its investment policy statement, a failure that can carry personal penalties under ERISA. Judge Eumi Lee ended the case without deciding whether an investment policy statement is among the documents a plan must furnish; these plaintiffs lacked standing to ask. Two had cashed out their accounts about two years before the 2022 request, the third offered no evidence she would have done anything differently, and a missing document is not an injury by itself without some downstream consequence. The prudence claims over the plan's American Century target-date funds were dismissed last year under the Ninth Circuit's Anderson v. Intel decision, which the Supreme Court reviews on October 6. Anderson asks what investment comparisons participants must offer to support a claim that retirement-plan options performed poorly.

When a veteran waives military retirement pay to receive disability pay instead, the waived amount disappears from what a divorce court can divide, and an ex-spouse's promised share can disappear with it. Many divorce settlements respond with indemnification provisions: the veteran agrees to make the former spouse whole if a later disability election cuts her share. The North Dakota Supreme Court [held in March](https://digest.theinnerfirm.com/docs/marschner-v-marschner-nd-opinion-2026-03-04.pdf) that federal law voids those provisions even when the parties agreed to them, reading the U.S. Supreme Court's 2017 Howell decision to bar any workaround. Richard Marschner waived all of his National Guard retirement pay for disability pay, and Roxane Marschner's bargained-for share went to zero. The Supreme Court granted review on Thursday. For anyone drafting divorce settlements that divide military retirement benefits, the case will set the ground rules.

Every investment option in Federated Hermes' own $660 million 401(k) plan was a Federated fund, and a participant alleges that 17 of them trailed the benchmarks the plan's own fiduciaries had chosen, that one fund stayed on the menu while outside investors pulled more than $1 billion from it, and that the plan paid roughly double what similar plans paid for recordkeeping. Judge Robert Colville let nearly everything proceed: the prudence claims on both fund selection and fees, the loyalty claim (participants plausibly served as a captive investor base for the firm's fund business), and both prohibited-transaction claims, applying the Supreme Court's Cunningham rule that the exemption allowing in-house funds is a defense for the company to prove, not a hurdle for the participant to clear. Only the failure-to-monitor count was dismissed, with 21 days to replead. A footnote points to the Supreme Court's October 6 argument in Anderson, on what comparisons participants must offer to support claims that retirement-plan investments performed poorly, and the court here invited the parties to seek new briefing if that decision bears on this ruling.

A federal judge dismissed the amended retirement-plan complaint against Legacy Health, its board, and its retirement committee. The plaintiffs have 30 days to try again. Judge Adrienne Nelson found the stable-value claims failed for want of a meaningful benchmark: none of the 13 comparator funds was alleged to be the same kind of guaranteed investment contract, and the court held the Ninth Circuit's approach to comparing investment funds, now under Supreme Court review in Anderson and set for argument October 6, applies to stable-value challenges too. A T. Rowe Price growth fund claim failed because underperformance against one benchmark, standing alone, doesn't plead imprudence. On forfeitures, the court joined the majority view that applying forfeitures to employer contributions, as the plan expressly permitted, is neither disloyal nor imprudent without more, found the anti-inurement claim failed because the money never left the plan, and noted the Ninth Circuit's pending Hutchins appeal on the same question.

HR Dive explains the Kulwicki fertility-benefits ruling in plain terms: under the Supreme Court's Bostock decision, the court flipped exactly one variable, the plaintiff's sex, and asked whether the benefit would treat a hypothetical male employee better. Because the plan covered no male infertility treatment at all, the comparison failed, and with it the claim that the plan's eligibility terms discriminated by sexual orientation. Both sides agreed that Bostock applied. They disagreed about how to make the comparison.

The AT&T pension-transfer ruling puts the focus on who selected the insurer and how that decision was monitored. AT&T is out of the case because it delegated the Athene selection and knew of no red flags, while State Street stays in because it made the choice. Kent Mason of Davis & Harman calls the decision to let the case proceed at all "just wrong," arguing the court misread the Supreme Court's limits on participants' ability to sue and blessed insurer comparisons it conceded might not hold. Jordan Mamorsky of the Wagner Law Group draws the sponsor lesson, that delegating to an independent fiduciary shifts the fight to whether monitoring missed red flags. The piece also cites a litigation tracker kept by Mason's firm: 13 pension risk transfer suits filed since 2024, none in 2026, with the Labor Department now filing briefs on the sponsors' side.

A closely watched challenge to fertility benefit design ends in dismissal. A lesbian employee of Wellstar Health System sued under Title VII because the medical plan makes women establish infertility either through months of procreative intercourse, which costs nothing, or through rounds of artificial insemination that she must pay for and that do not result in pregnancy, the only path open to her. A magistrate judge had recommended letting the claims proceed under Bostock, the Supreme Court decision holding that firing a worker for being gay or transgender is discrimination because of sex. Judge Brown rejected that recommendation and dismissed the case. In his reading, Bostock requires changing one thing only, the plaintiff's sex, and a similarly situated male employee would not receive the benefit either, because the plan covers only female infertility. The group actually disadvantaged, the judge reasoned, is everyone unable to conceive through intercourse, which includes men and women of all orientations and is not a protected class. The court declined to follow contrary decisions from federal courts in California and Illinois, so the split over fertility benefit design deepens. The class claims were dismissed without prejudice.

Kellanova and FedEx are asking the Supreme Court to hear disputes over how pension plans calculate benefits that continue paying a surviving spouse. The question is whether plans must use reasonable, up-to-date assumptions about life expectancy or can rely on the assumptions written into their plan documents. [Kellanova's petition](https://digest.theinnerfirm.com/docs/kellanova-cert-petition-2026-09-14.pdf) and [FedEx's companion petition](https://digest.theinnerfirm.com/docs/fedex-v-watt-cert-petition-2026-09-14.pdf), both filed September 14, come from a single divided Sixth Circuit decision holding that these spousal annuities must be calculated with reasonably accurate, modern mortality data even where the plan document specifies older tables. The Eleventh Circuit reads the statute the same way, while the D.C. Circuit treats the calculation as pure math under whatever assumptions the plan states. The petitions lean hard on the stakes. Defined benefit plans hold nearly $3 trillion and pay out over $250 billion a year, older mortality tables remain common in plan documents, and settlements in these suits have run from $10 million at CITGO to $59.2 million at Raytheon. Both sets of respondents have waived their right to respond unless the Court requests a response.

Whether a severance program is an ERISA plan decides where and how disputes over it get fought, and John Deere is arguing its program is not one. Two former employees claim they were entitled to payments from the program the company offered in its 2024 layoffs, a one-time lump sum based on years of service and pay. Deere's motion to dismiss rests on the Supreme Court's Fort Halifax decision: a single payment from a single event, calculated with fixed inputs, requires no ongoing administration and so is not an ERISA plan at all. The company also argues neither plaintiff qualified regardless, one because he was terminated individually rather than in a layoff, the other because he resigned, signed a waiver in exchange for three months of pay, and kept the money. This is a motion, not a ruling. But sponsors design severance on both sides of the Fort Halifax line, sometimes deliberately, and the case is a reminder that the design choice controls everything from claims procedures to which court hears the fight.

The rest of the opinion behind today's Second Thing. IAC argued in the alternative that the award had to fall because the Fund used inconsistent rates for withdrawal liability and minimum funding. On that point IAC lost: the opinion collects the decisions since the Supreme Court's Concrete Pipe case holding the two rates must be similar, though not necessarily identical. The court also read this year's M&K Employee Solutions decision as support rather than obstacle, noting the Supreme Court's warning about actuaries adopting intentionally low discount rates for withdrawal liability while using higher rates for other purposes. Judgment entered September 15; the recalculation goes back to the arbitrator.

A 2 to 1 panel affirmed summary judgment for Washington in the long-running challenge to the state's Reproductive Parity Act, which requires carriers that cover maternity care to cover abortion. Cedar Park, a Kirkland church with about 140 employees, kept its Kaiser plan after Kaiser declined to carve out abortion coverage in 2019. The panel first found standing, reading the Supreme Court's 2025 Diamond Alternative Energy decision to credit the commonsense economic reality that more affordable services get used more. On the merits the majority held both the Parity Act and the state's conscience statute neutral and generally applicable, noting that the conscience statute exempts religious and secular objectors alike and that the record showed a competing carrier had offered the church cheaper plans excluding abortion. Judge Callahan dissented in part, arguing the laws burden religious exercise and cannot survive strict scrutiny. For religious employers with insured plans in mandate states, the self-insured route is the one this opinion does not touch.

A practical recap of the year's two big withdrawal liability rulings, with the arithmetic that makes them sting. In M&K Employee Solutions, a unanimous Supreme Court held that ERISA does not require the actuarial assumptions behind a withdrawal liability calculation to be locked in by the measurement date. The date fixes the facts, not the assumptions, and the ruling blessed a post-measurement discount rate change that took one employer from $1.8 million to $6.2 million. In Perfection Bakeries, the Eleventh Circuit applied partial withdrawal credits before the 20-year payment cap rather than after, a sequencing question worth about $2 million in that case, and certiorari was denied in April. The advice follows the math. Treat fund estimates as preliminary, watch contribution reductions, since a drop of more than 70 percent can trigger partial withdrawal, and probe assessment-versus-funding rate disparities when challenging an assessment.

Ahead of the October 6 Supreme Court argument, the piece maps the circuit split on whether an ERISA plaintiff must plead a comparator fund similar in aims, risks, and strategies to the investment it challenges. By their count five circuits require the showing and two reject it, with the Eleventh Circuit's August reversal in Johnson v. Royal Caribbean the newest entry on the no side. The argument is that a benchmark should be necessary but never sufficient without allegations of a flawed process, and they tie the standard to a March Labor Department proposal folding the same concept into a fiduciary safe harbor.

The first firm analysis of the suit 22 multiemployer plans filed against the PBGC last week adds the numbers that show what the waitlist costs. The plans represent more than 25,000 participants and estimate they are owed roughly $450 million. Eight are already insolvent and have cut benefits, in some cases by more than half, and three more expect insolvency within a year. Many of the affected retirees are past 75, and because special financial assistance restores benefits only to participants alive when the money arrives, delay does damage no later payment can repair. Jackson Lewis also notes what tilts the eligibility fight. The Supreme Court denied review of the Second Circuit's Bakery Drivers decision in May, yet the complaint alleges the agency still bars terminated plans outside that circuit while letting terminated plans inside it move ahead in the queue.

The boards of 22 multiemployer plans, from foundry workers to food terminal employees, say the PBGC has kept them from applying for the special financial assistance Congress funded in the American Rescue Plan. Congress told the agency to process every application within 120 days; the funds say they have sat on a waitlist for more than a year without being allowed to file at all. The complaint also attacks the PBGC's position that terminated plans are ineligible, which the Second Circuit struck down in the Bakery Drivers case, now the subject of the agency's pending Supreme Court petition. The plans asked for a preliminary injunction and an expedited hearing the day they filed, and the docket has not slowed for the calendar. The court entered a scheduling order on Labor Day.

The quarterly survey tracks health plan design challenges after Barbich v. Northwestern, the forfeiture line following the Eighth Circuit's standing dismissal in Matula, actuarial-equivalence rulings in the Sixth and Eleventh Circuits, and the Supreme Court's withdrawal-liability decision in M&K Employee Solutions, with the Fifth Circuit's en banc surcharge case and Anderson v. Intel on the watch list.

The Seventh Circuit affirmed dismissal of Central States' ERISA preemption challenge to Arkansas Insurance Rule 128, holding that the state's requirement that health plans pay pharmacies “fair and reasonable” dispensing fees is a cost regulation permitted under Rutledge, and that the rule's companion reporting mandate survives because it exists only to enforce that fee requirement, fitting the narrow room the Supreme Court's Gobeille decision leaves for state reporting duties. The panel flagged that ERISA's newly enacted uniform pharmacy-compensation reporting rules, effective for plan years beginning 30 months after February 3, 2026, may change the analysis later. For self-funded plans, the decision extends Rutledge's reach from reimbursement floors to state-mandated fees and data reporting.

The first half of 2026 has seen major litigation developments in cases concerning the Employee Retirement Income Security Act (ERISA), including decisions by the U.S. Supreme Court and the U.S. Courts of Appeals for the Fourth, Fifth, Ninth, Eleventh, and D.C. Circuits.

On remand from the Supreme Court, Judge Castel split the jury question in the surviving prohibited-transaction claim: the request that fiduciaries make good the plan's losses goes to a jury, because, in the court's words, it is "a 'make good' remedy, and hence legal in nature, to which the plaintiffs are entitled to a jury," while the equitable relief, including removal of fiduciaries, an accounting, and reformation, will be tried by the bench. The order's conclusion reads as a flat denial of Cornell's motion, but the body grants it in part. Both halves matter to anyone tracking whether ERISA fiduciary claims get juries.

A novel lawsuit argues employers must offer fossil-fuel-free equity options as a faith-based accommodation, testing the Supreme Court’s Groff decision.

ERISA attorneys explain how the widely followed case will affect employers, no matter how the Supreme Court ends up ruling.

The U.S. Supreme Court recently ruled that the Employee Retirement Income Security Act (ERISA) does not require multiemployer pension plans to use actuarial assumptions to calculate withdrawal liability adopted before a certain deadline.

asked the nation’s highest court to affirm a decision in favor of plan fiduciaries.

ARA analysis of the JPMorgan prescription-drug fiduciary litigation, where a health plan excessive-cost suit survived dismissal in part on arguments drawn from a recent Supreme Court decision. The piece examines why a documented process may not end the inquiry when plaintiffs plead prohibited-transaction claims.

The organization’s amicus brief backed Intel and warned that allowing lawsuits based on hindsight would fuel costly litigation and harm 401(k) participants.

The groups all filed amicus briefs arguing for prudent ERISA processes over investment returns

Court ruled that General Obligations Law § 5-335 bars an insurer's subrogation lien for short-term disability benefits paid to an injured employee, invalidating the insurer's lien.

Amicus briefs by the Department of Labor and the employer group warned the Supreme Court to not allow lawsuits under ERISA based solely on an investment fund’s underperformance.

The company argues that claims of underperformance should be judged against a meaningful, comparable benchmark.

the case in which the Supreme Court held in May that a plan’s actuary may calculate an employer’s withdrawal liability using actuarial assumptions adopted after the measurement date.

The United States Supreme Court recently held in M&K Employee Solutions, LLC et al. v. Trustees of the IAM National Pension Fund that the Employee Retirement Income Security Act of 1974 (“ERISA”)