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The New Tibble v. Edison Decision Doesn’t Change Much

After the initial decision in Tibble v. Edison, which affirmed the trial court’s decision on every issue in that 401(k) fee case – the statute of limitations, the 404(c) safe harbor, trustee deference, revenue sharing, and “share classes” – the plaintiffs asked for rehearing on two issues: 1) the statute of limitations, and whether an alleged “continuing violation” extends the limitation period; and 2) deference, specifically whether Firestone deference is applicable to an ERISA breach of fiduciary duty case, and not simply a benefits claim.

On Aug. 1, 2013, the original panel of the Ninth Circuit that decided the case amended its opinion to expand upon the second issue, but did not change its conclusion – because this ERISA breach of fiduciary duty case concerned the interpretation of the Edison pension plan, the Defendants’ position was entitled to deference, again rejecting the position of the Second Circuit (John Blair, 26 F3d 360), and agreeing with the Sixth Circuit (Caliber Systems, 220 F3d 702) and Third Circuit (Moench, 62 F3d 553).

The panel did not address the first issue – the statute of limitations – and upon the filing of the amended decision denied rehearing. I expect that these same two issues will be included in the plaintiffs’ petition to the U.S. Supreme Court.