Litigating Stock-Drop Claims After Dudenhoeffer: New Presumption Standard in Breach of Fiduciary Duty Claims

August 12, 2014
01:00 PM - 02:30 PM

Morgan Lewis partner Brian T. Ortelere and Lynn Lincoln Sarko, Managing Partner, Keller Rohrback, will address “Litigating Stock-Drop Claims After Dudenhoeffer:  New Presumption Standard in Breach of Fiduciary Duty Claims” in a webinar hosted by Strafford Publications, Inc.

This CLE webinar will educate ERISA counsel on litigating stock-drop claims after the Dudenhoeffer ruling. Experienced ERISA counsel will review the anticipated impact of the decision on future litigation, including the new presumption standard and defense theories.   

Tuesday, August 12, 2014
1:00–2:30 pm


On June 25, 2014, in Fifth Third Bancorp v. Dudenhoeffer, the Court struck down the “presumption of prudence” standard and 20 years of jurisprudence established by Moench v. Robertson. The Court also indicated new defense theories that ERISA counsel must now prepare to leverage.

Stock-drop litigation is expected to increase as a result of this game-changing decision. The presumption of prudence standard has worked in favor of ESOP fiduciaries for many years allowing for the early dismissal of numerous cases. Now, counsel must be prepared for cases to proceed beyond the motion to dismiss phase.

Adding to the complexity of this current environment, lower courts will now have to clarify the pleading standards. However, of equal importance, counsel must arm themselves with techniques to leverage new defense theories offered by the Court.

Listen as our esteemed panel reviews the new duty of prudence that now applies in ESOP and defined contribution plans. Additionally, attendees will benefit from an analysis of new bases to defend against breach of fiduciary duty claims that are based on use of publicly available information and the existence of insider information. 


  • Background to and Supreme Court’s ruling in Dudenhoeffer
  • Application of new duty of prudence standard
  • New defense tactics
  • Use of publicly available information
  • Existence of insider information


The panel will review these and other key questions:

  • How must counsel now deal with the new duty of prudence standard in stock-drop litigation after Dudenhoeffer?
  • How must counsel leverage or overcome the new level of scrutiny of complaints the Court established?
  • How will counsel navigate stock-drop litigation at the pleading stage?