Contact: Mark S. Thomas & Robert W. Shaw; Williams Mullen (North Carolina & Virginia, USA)
The U.S. Court of Appeals for the Ninth Circuit has held that an ERISA-regulated employee stock-ownership retirement plan’s incorporation by reference of the plan sponsor’s statements to the Securities and Exchange Commission (“SEC”) into the plan’s summary plan description (“SPD”) constituted a fiduciary act, and those SEC statements thus became fiduciary statements to the plan participants which could support a claim of fiduciary breach against the plan fiduciaries. The Ninth Circuit’s decision in Harris v. Amgen, No. 10-56014 (October 23, 2013), has thus potentially opened the door to a much broader scope for plan fiduciary liability based on SPDs.
The Background. The plaintiffs were current and former employees of the global biotechnology company, Amgen, Inc. (“Amgen”), and an Amgen subsidiary, Amgen Manufacturing, Limited. The defendants were Amgen, its subsidiary, the Fiduciary Committee of the subsidiary’s retirement plans, and the individual members of the Amgen board of directors (collectively, “the Defendants”).
