US Solicitor General Supports Plan Sponsors on Key ERISA Legal Questions in US Supreme Court Amicus Briefs
Over the summer, we published a Legal Update discussing the Supreme Court’s invitations to the US Solicitor General to file briefs expressing his views on whether to grant the cert petitions in two pending ERISA class actions raising important legal questions regarding (1) the pleading standard for ERISA fiduciary-breach claims challenging plan investments and (2) whether a burden-shifting framework applies to loss causation.
- Parker-Hannifin Corp. v. Johnson, No. 24-1030 (pleading standard for investment challenges): On June 30, 2025, the Supreme Court invited the Solicitor General to express his views on the cert petition, which asks the Court to determine whether an ERISA plaintiff asserting an investment challenge premised on relative underperformance must plausibly allege a meaningful benchmark.
- Pizarro v. Home Depot, Inc., No. 24-620 (burden to prove loss causation): On April 21, 2025, the Supreme Court invited the Solicitor General to express his views on the cert petition, which asks the Court to decide whether an ERISA plaintiff bears the burden to prove loss causation—or a defendant fiduciary bears the burden to disprove loss causation—once the plaintiff establishes a breach of fiduciary duty and a loss under ERISA Section 409(a).
On December 9, 2025, the Solicitor General filed briefs on behalf of the United States in Parker-Hannifin and Pizarro urging the Supreme Court to grant both cert petitions. Read the Solicitor General’s brief in Parker-Hannifin, and his brief in Pizarro.
In both cases, the Solicitor General agreed with the petitioners that there was a circuit split and that the legal questions are sufficiently important to warrant the Supreme Court’s review. Further, the Solicitor General supported the plan sponsor and fiduciary defendants (and disagreed with the plaintiffs) on the merits of the legal questions being presented to the Supreme Court. This reflects a clear shift under the new Administration to interpret ERISA in reasonable and common-sense manner.
Solicitor General Supports Meaningful Benchmark Pleading Requirement for Fiduciary Challenges to Underperforming Investment Options
In Parker-Hannifin Corp. v. Johnson, Parker-Hannifin asked the Supreme Court to review a Sixth Circuit decision reversing the dismissal at the pleading stage of an ERISA class action. The plaintiffs in that case allege the plan fiduciaries breached their fiduciary duties of prudence by retaining allegedly underperforming target-date funds (“TDFs”) in the company’s 401(k) plan. A split Sixth Circuit panel held that, at the pleading stage, it was sufficient for the plaintiffs to compare the performance of the plan’s TDFs to a S&P TDF Index. The panel found this comparison sufficient even though the complaint did not include any detail about the S&P TDF Index’s “risk profile, bond-to-equity ratio, and investment strategy,” and did not allege facts supporting an inference that the plan’s TDFs were designed to mirror the composition of the S&P TDF Index.
In its cert petition, Parker-Hannifin argued the Sixth Circuit’s decision conflicts with decisions from the Seventh, Eighth, Ninth, and Tenth Circuits, which require plaintiffs to plead a meaningful benchmark to state a plausible imprudent investment claim premised on alleged underperformance. To aid its decision on whether to grant the cert petition, the Supreme Court invited the Solicitor General to express his views.
In his brief, the Solicitor General urged the Supreme Court to grant Parker-Hannifin’s cert petition. The Solicitor General argued that the panel majority’s decision applied too lenient a pleading standard because it did not require the plaintiffs—who are asserting a performance-based challenge to the plan’s TDFs—to plausibly allege a “meaningful benchmark” for comparison. Citing the Supreme Court’s recognition in Hughes v. Northwestern University that “the circumstances facing an ERISA fiduciary will implicate difficult tradeoffs, and courts must give due regard to the range of reasonable judgments a fiduciary may make based on her experience and expertise,”1 the Solicitor General emphasized that fiduciary prudence must be evaluated prospectively and that fiduciaries must be “afforded broad latitude to tailor strategies, objectives, and risks to the varied needs of plan participants.” The requirement to plead a meaningful benchmark is necessary because “[t]he fact that one fund with a different investment strategy ultimately performed better does not establish anything about whether the [fiduciaries’ investments] were an imprudent choice at the outset.”2 To hold otherwise would allow a fiduciary to be held liable for not selecting an investment “that later proved to have the highest returns,” which would mean that “most [fiduciaries] could be liable most of the time, because even prudent investors achieve a wide range of results.”3 That would be contrary to ERISA’s purpose, which seeks to balance the “fair and prompt enforcement of rights” with “the encouragement of the creation of such plans.”4
The Solicitor General also argued that the Sixth Circuit erred in its alternative holding, when it concluded that the S&P TDF Index was a meaningful benchmark for the plan’s TDFs. As an initial matter, the Solicitor General agreed with the district court that “it is doubtful that a market composite index like the S&P TDF benchmark could ever qualify as a meaningful benchmark” because “it reflects an amalgamation of the different characteristics of TDF strategies.”5 Agreeing with Judge Eric Murphy’s dissent, the Solicitor General emphasized that the complaint lacked any details about the S&P TDF Index, including its “risk profile,” “bond to equity ratio,” and whether it “follow[s] a passive or active strategy.” The Solicitor General also noted that the complaint failed to plead sufficient facts about the asset allocation of the plan’s TDFs that would permit a plausible inference that the funds were designed to mirror the composition of the S&P TDF Index. As a result, the complaint deprived the court of the ability to evaluate whether any purported benchmarks shared “similar investment strategies, similar investment objectives, [and] similar risk profiles to the plan’s funds.”6
Solicitor General Rejects ERISA Plaintiffs’ Burden-Shifting Framework for Loss Causation
In Pizarro v. Home Depot, Inc., the plaintiffs asked the Supreme Court to review an Eleventh Circuit decision affirming the district court’s grant of summary judgment in favor of Home Depot. The Eleventh Circuit affirmed summary judgment because it concluded the plaintiffs failed to proffer sufficient evidence that the defendants’ alleged fiduciary breaches caused a loss to the plan. The Eleventh Circuit explained that ERISA Section 409 does not establish a burden-shifting framework requiring a defendant fiduciary to disprove loss causation once the plaintiff proves the defendant breached its fiduciary duties and caused a loss to the plan. It instead held that an ERISA plaintiff bears the ultimate burden of proof on all elements of his or her claims, including with respect to loss causation.
In their cert petition, the plaintiffs argued the Eleventh Circuit—which deepened an existing circuit split with its ruling7—had erred because ERISA incorporates trust-law principles that require burden-shifting on loss causation. To aid its decision on whether to grant the cert petition, the Supreme Court invited the Solicitor General to express his views.
In his brief, the Solicitor General urged the Supreme Court to grant the plaintiffs’ cert petition. The Solicitor General disagreed with the plaintiffs’ merits argument and asked the Supreme Court to affirm the Eleventh Circuit’s decision in favor of Home Depot holding that ERISA plaintiffs bear the burden to prove loss causation. The Solicitor General emphasized that under longstanding Supreme Court precedent, the “default rule” is that “plaintiffs bear the burden of persuasion regarding the essential aspects of their claims,” including loss causation.8 Acknowledging there are exceptions to the default rule, the Solicitor General explained that the plaintiffs’ justifications for burden shifting with respect to loss causation were unsupported by the statutory language in ERISA Section 409 and “incompatible with ERISA’s reticulated scheme and objectives.” The Solicitor General stated that this view was also consistent with the Supreme Court’s reasoning in Cunningham v. Cornell University, which recently held that defendants generally bear the burden of proving affirmative defenses.9 The Solicitor General further argued that trust law principles did not support a different outcome, stating that “Petitioners have not identified any settled trust-law practice of shifting the burden of proving causation to defendants.”
Notably, the Solicitor General also highlighted in his brief the “six-fold” increase in ERISA excessive fee lawsuits between 2016 and 2022, and the harm to plan participants that has resulted from those lawsuits. As a further policy reason for rejecting the plaintiffs’ burden-shifting framework, the Solicitor General explained that “burden shifting could make it all too easy for plaintiffs to survive motions practice and press weak claims to trial or settlement.” And that “prospect of increased litigation costs” is antithetical to ERISA’s interests in “efficiency” and “predictability.”10
Takeaways for Plan Fiduciaries
As we explained in our prior Legal Update, the Supreme Court inviting the views of the Solicitor General in Parker-Hannifin and Pizarro, and its recent granting of certiorari to address the calculation of multiemployer plan withdrawal liability,11 demonstrate that the Court is interested in the important ERISA issues presented in these cases. Based on the timing of the Solicitor General’s briefs, we currently anticipate the Supreme Court will consider the two cert petitions in conference during the first half of January 2026 and decide whether to grant or deny the cert petitions soon thereafter.
Of equal importance to the Supreme Court’s interest, the Solicitor General’s briefs reflect a substantial shift in the US Department of Justice and the US Department of Labor’s (“DOL”) interpretation of ERISA and the scope of fiduciary responsibility and liability. Earlier this summer, the DOL filed an amicus brief in the Ninth Circuit urging the Court to affirm the dismissal of the forfeiture claims in Hutchins v. HP Inc., and we commented that we hoped DOL’s Employee Benefits Security Administration, under the new leadership of Assistant Secretary Dan Aronowitz, would take a proactive role in helping plan sponsors and fiduciaries navigate complex plan administration issues and discourage meritless ERISA class action lawsuits. The Solicitor General’s briefs in Parker-Hannifin and Pizarro, which reflect a reasonable and common-sense interpretation of ERISA’s fiduciary standards, are another meaningful step in the right direction and a welcome development for plan sponsors, plan fiduciaries, and plan participants.
2 Quoting Meiners v. Wells Fargo & Co., 898 F.3d 820, 823 (8th Cir. 2018) (footnote omitted).
3 The Solicitor General also emphasized that ERISA does not “require[] fiduciaries to pursue only the highest returns” and the fact some investment options are “later known to have outperformed others does not mean it was imprudent to select the lower-performing options in the first instance.”
4 Quoting Conkright v. Frommert, 559 U.S. 506, 517 (2010).
5 Quoting Hall v. Capital One Fin. Corp., 2023 WL 2333304, at *7 (E.D. Va. Mar. 1, 2025) (internal quotations omitted).
6 Quoting Matney v. Barrick Gold, 80 F.4th 1136, 1148 (10th Cir. 2023).
7 The petitioners argued that 5-2 circuit split favored their position, with the First, Second, Fourth, Fifth, and Eighth Circuits applying a burden-shifting framework (i.e., the defendant fiduciary has the burden to prove no causation) and the Tenth and Eleventh Circuits not applying a burden-shifting framework (i.e., the plaintiff bears the burden to prove causation).
8 Quoting Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 57 (2005) and citing additional cases.
10 Quoting Conkright, 559 U.S. at 518.
11 M & K Employee Solutions, LLC, et al. v. Trustees of the IAM National Pension Fund, No. 23-1209.
