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Thole v. U.S. Bank, N.A.

On September 18, 2019, the Pension Rights Center filed an amicus brief in the Supreme Court in Thole v. U.S. Bank, N.A. asking the Supreme Court to reverse a decision by the Eighth Circuit Court of Appeals that ruled that pension plan participants did not have the right to sue to recover investment loses of at least $748 million.  The circuit court stated that the plan participants lost their ability to sue, including the ability to seek removal of persons responsible for improperly managing the plan or the inappropriate investments that they chose because the pension plan is this case was fully funded.  The law, however, provides that participants have the right to sue to have their plan carefully managed with investments in a diversified portfolio without self-dealing by plan managers.  It should not matter that a plan is sufficiently funded.  As noted in the brief: “The fact that a plan that loses hundreds of millions in assets due to fiduciary mismanagement might not ultimately default on its obligations does not make the increased risk to participants any less real.”  This is because the status of a plan’s ability to pay benefits changes over time for many reasons, including the performance of the plan’s investments.