Two new opinions, including a split-panel win for class suing Penn over retirement-plan fees

Sweda v. Univ. of Pa. — ERISA — partial reversal — Fisher

The Third Circuit revived an ERISA class-action against the University of Pennsylvania today, reversing the district court’s dismissal of claims for breach of fiduciary duty by paying excessive recordkeeping and investment fees. The court joined the Eighth Circuit in holding that Twombly‘s pleading rule for antitrust cases does not apply to ERISA fiduciary-breach claims.

Joining Fisher was Shwartz; Roth dissented, spotlighting her concern that the university will face undue pressure to settle given the large amount at stake. Arguing counsel were Michael Wolff of Missouri for the class and former Hutchinson clerk Brian Ortelere of Morgan Lewis for Penn.


Tundo v. County of Passaic — civil rights — affirmance — Bibas

The Third Circuit held that New Jersey’s civil-service commission did not violate the due process rights of two laid-off corrections officers when it removed them from its rehire lists, even though the two had a reasonable expectation of staying on them, because the commission had left itself broad discretion to remove them from the lists.

Joining Bibas were Chagares and Sánchez EDPA by designation. The case was decided without oral argument.