So what does it mean if you are an ERISA litigator who writes a blog and you are too busy litigating to write a post on Tibble v. Edison (even though you have published a widely read article on the case) right after the Supreme Court issues its opinion on the case? I don’t know, but it does remind me of this old joke:
Q: What do you call one lawyer in town? A: Unemployed.
Q: What do you call two lawyers in town? A: Overworked.
For now, until I have time to sit down and write a comprehensive post on the decision, I will content myself with passing along articles of interest on the decision, along with some general comments of my own. A good place to start is with the article in today’s Wall Street Journal, and with this piece in the Washington Post. This piece in Forbes caught my eye as it grabs hold of the most important aspect of the decision, which is that the Court found that fiduciaries have an on-going duty to monitor and review investments, but without outlining the parameters of that duty. Frankly, I wouldn’t have expected the Court to do so, as that is a very fact specific question and the exact parameters of that duty – once you accept that it exists – can vary from one set of circumstances to another. Thus, the Supreme Court has found that such a duty exists and that a fiduciary is not off the hook forever simply because the original investment decisions were prudent when first made, but left it for future litigation to establish what that duty looks like in different circumstances. This will continue to put ERISA litigators, quite happily, within the second category of lawyers in that old joke.