In the wake of the Supreme Court's decision in Fifth Third Bancorp v. Dudenhoeffer, the suit against Lehman Brothers by retirement plan participants, In re Lehman ERISA Litigation, 2nd U.S. Circuit Court of Appeals, No. 11-4232, is being sent back to the judge for another look.

New York's 2nd U.S. Circuit Court of Appeals said that U.S. District Judge Lewis Kaplan will have to take another look at the case in the wake of Fifth Third. Kaplan had dismissed the original lawsuit, filed in October of 2008, in which plaintiffs said that members of the employee benefit plans committee and the directors of Lehman Brothers, who appointed the committee members, breached their fiduciary duties under ERISA by leaving the plan invested in Lehman stock even as it tanked, rendering participants' plan assets virtually worthless.

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