In January 2022, the Supreme Court held in Hughes v. Northwestern University, 142 S. Ct. 737, that courts must apply a context-specific inquiry to determine whether plan participants state plausible breach of fiduciary duty claims against plan fiduciaries for violations of the Employee Retirement Income Security Act (“ERISA”) when selecting and monitoring investment funds and recordkeeping services under a plan.  In so doing, the Supreme Court reversed the Seventh Circuit’s decision in Divane v. Northwestern University, 953 F.3d 980 (7th Cir. 2020) (now known as Hughes), stating “The Seventh Circuit erred in relying on the participants’ ultimate choice over their investments to excuse allegedly imprudent decisions by [Northwestern fiduciaries].”  142 S. Ct. at 742.  Hughes is pending before the Seventh Circuit on remand.…

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