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Employee Benefit News reprints Deborah Boiarsky's blog post

08/19/2014
Employee Benefit News published Deborah Boiarsky’s blog post “Fourth Circuit decision spells more uncertainty for retirement plan fiduciaries” in its daily newsletter on August 15, 2014. The article, first published on Porter Wright’s Employee Benefits Law Report blog, explores the possible ramifications of a decision by a 4th Circuit panel of judges in the case Tatum v. RJR Pension Investment Committee, et al. Boiarsky writes that the decision has the potential to elevate the standard prudent fiduciary” rule as it had been widely understood it to govern ERISA retirement plans.

“The 4th Circuit found a distinct difference between the ‘could’ standard and the ‘would’ standard. Under the ‘could’ standard, the court surmised that a fiduciary is protected if its decision is merely any decision that was possible for a prudent fiduciary, encompassing several possibilities, some of which may be remote. Under the more difficult ‘would’ standard, a fiduciary instead must determine what would be the probable decision by a prudent fiduciary.”