Putnam Investments, LLC v. Brotherston (U.S. Supreme Court)
To be held liable for a breach of the duty of prudence, an ERISA plan fiduciary must have caused losses to the plan through his or her imprudent conduct. As interpreted by the courts of appeals, this loss-causation element requires an inquiry into whether a hypothetical prudent fiduciary would have made the same decision as the fiduciary defendant. The courts of appeals are currently split, however, as to whether an ERISA plaintiff must affirmatively plead and prove loss causation, or whether the fiduciary defendant must disprove it. On behalf of the American Council of Life Insurers, we argued that the Supreme Court should grant certiorari to hold that loss causation is an element of the claim on which the plaintiff bears the burden of proof. In response, the Court has now called for the views of the Solicitor General on the petition.