The U.S. Supreme Court heard oral argument in Tibble v. Edison International this week. A link to the transcript published by the Court can be found here. For those who are interested, I highly recommend you read through it.

The mainstream media, in articles such as this one, interpreted the court's discussion as hinting at a victory for the plaintiffs. But let's be clear: that's not necessarily a clear-cut outcome. A reversal requires difficult decisions by the justices about what is required of fiduciaries.

I generally got the sense that not one of the justices (other than Justice Thomas, who hasn't asked questions in years) supported the 9th Circuit test that held where an investment is selected more than six years before a lawsuit is brought, there is no ongoing duty to monitor unless changed circumstances amounting to the investment almost being like a new investment would cause a fiduciary to re-evaluate the fund.

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