After more than two years without one, three ERISA cases will come before the US Supreme Court in 2019–2020. Exciting times for ERISA attorneys, to be sure, but each case also presents issues of practical consequence for plan sponsors, fiduciaries, and participants in ERISA plans across the country.

Intel Corp. Investment Policy Committee v. Sulyma, No. 18-1116

In a case that may end up being the most impactful, the Court will address how to apply ERISA’s three-year “actual knowledge” statute of limitations. ERISA Section 413 requires that a plaintiff file suit in the six years following an alleged breach or violation. But if a plaintiff has “actual knowledge” of a breach or violation, that period shrinks to three years. In this case, Intel argued that the plaintiff’s claims were time barred because plan disclosures gave the plaintiff “actual knowledge” of all information necessary to challenge the Intel plans’ investments and fees—even though the plaintiff claimed not to have read them or remember whether he had read them. The US Court of Appeals for the Ninth Circuit held that this was enough to create a factual dispute, preventing summary judgment and requiring a trial.

On July 24, the US Court of Appeals for the Ninth Circuit held in Munro v. University of Southern California that ERISA Section 502(a)(2) claims for breach of fiduciary duty fell outside the scope of the plaintiffs’ individual arbitration agreements because only those individual employees—and not their 403(b) plans—consented to arbitration. The ruling affirmed the district court’s denial of the University of Southern California’s motion to compel arbitration. The 403(b) plan litigation will now continue in the Central District of California, where District Judge Virginia A. Philips had previously stayed the matter pending USC’s appeal.

In Munro, the plaintiffs brought a putative class action lawsuit against USC alleging claims for breach of ERISA’s fiduciary duties in connection with fees and expenses charged to two ERISA defined contribution plans (the USC Plans). The plaintiffs filed their claims under ERISA Section 502(a)(2), 29 U.S.C. § 1132(a)(2), on behalf of the USC Plans. Thereafter, USC moved to compel arbitration pursuant to arbitration agreements signed by each of the nine plaintiffs. These agreements required the plaintiffs to arbitrate “claims for violation of any federal, state or other governmental law, statute, regulation, or ordinance.” However, the district court denied USC’s motion to compel arbitration, holding that the arbitration agreements were unenforceable as to the plaintiffs’ ERISA claims because the USC Plans were the real parties in interest to Section 502(a)(2) claims, and the USC Plans had not consented to arbitration. Munro v. Univ. of S. Cal. (C.D. Cal. Mar. 23, 2017) (“[P]articipants cannot sign an arbitration agreement, without the consent of a plan, that prevents the participants from bringing a § 502(a)(2) claim on behalf of the plan.”).