Joint Motion to Dismiss Petition for Writ of Certiorari Filed in Home Depot 401(k) Plan Litigation

On January 7, 2026, the plaintiffs-petitioners and Home Depot (and two of its 401(k) plan committees) jointly filed a motion to dismiss pursuant to Supreme Court Rule 46.1 in Pizzaro, et al., v. The Home Depot, Inc., et al., No. 24-620. The motion, which the Court granted on January 8, 2026, sought dismissal of the plaintiffs-petitioners' petition for a writ of certiorari pending before the Supreme Court. 

The motion followed the submission of an amicus brief in December 2025 by the Solicitor General and the Department of Labor (DOL) in response to the Supreme Court's request for the government's views on the issues set forth in the petition. In the brief, the government urged the Supreme Court to grant certiorari to resolve a circuit split concerning which party bears the burden of proof on loss causation in ERISA fiduciary breach litigation. The government's brief supported the Court of Appeals for the Eleventh Circuit's decision affirming judgment in favor of Home Depot, holding that plaintiffs bear the burden of proving all elements of an ERISA claim, including loss causation. On January 9, 2026, the DOL issued a press release welcoming the plaintiffs-petitioners' decision to withdraw their petition. In the press release, Assistant Secretary of Labor for the Employee Benefits Security Administration (EBSA) Daniel Aronowitz stated that "[t]his outcome should provide reassurance to the regulated community that the Department of Labor is committed to ending regulation by litigation and to defending ERISA as Congress intended." 

Supreme Court Denies Petition for Writ of Certiorari in No Surprises Act Litigation

On January 12, 2026, the Supreme Court denied a petition for a writ of certiorari asking the Court to review a June 2025 decision by the Fifth Circuit declining to recognize a private right of action to enforce arbitration awards issued pursuant to the No Surprises Act (NSA) independent dispute resolution (IDR) process. Guardian Flight, L.L.C., et al. v. Health Care Service Corporation, No. 25-441 (U.S.). The air ambulance providers who filed the petition sued an insurance carrier under the NSA, ERISA, and state law over an alleged lack of timely payment of IDR awards. In upholding dismissal of the complaint, the Fifth Circuit found that the NSA does not contain a private right of action, that the providers did not have standing to enforce payment of IDR awards under ERISA, and their allegations did not state a claim for unjust enrichment under Texas law. Instead, the Fifth Circuit held that the NSA empowers the Department of Health and Human Services (HHS) to enforce compliance with the IDR process through administrative procedures. According to the court, "[t]he NSA expressly bars judicial review of IDR awards except as to the specific provisions borrowed from the [Federal Arbitration Act]," which provide for judicial vacatur of awards in limited circumstances that plaintiffs-petitioners conceded were inapplicable.

The Supreme Court did not provide a rationale for its denial of certiorari. We anticipate the issues involved in the case will continue to percolate in the federal district and circuit courts as both providers and payors continue to voice frustration with the IDR process by which provider payments are determined for out-of-network healthcare services covered by the NSA.

Third Circuit Affirms Dismissal of Imprudence Claims Against Prudential

On January 9, 2026, the Third Circuit upheld a district court decision granting summary judgment in favor of the defendants in Cho v. The Prudential Insurance Company of America, et al., No. 25-1134 (3rd Cir.). The putative class action lawsuit, originally filed on November 5, 2019, and amended for the third time on September 12, 2022, involved a participant of the Prudential 401(k) plan alleging that Prudential, its plan committee, and individual committee members (collectively, Prudential) breached their fiduciary duties and failed to monitor fiduciaries in violation of ERISA. In dismissing the lawsuit, the district court concluded that the plaintiff "failed to raise a triable issue of fact as to whether [Prudential] engaged in a prudent process in reaching [its] investment decisions." The Third Circuit agreed with the lower court's decision and reasoning. 

The Third Circuit emphasized that Prudential engaged an outside investment consultant to evaluate investment options, monitor performance, and provide the plan's committee with guidance. Further, it highlighted that the committee met quarterly to review the plan's investments, and found that this process "was adequate to satisfy the duty of prudence imposed on fiduciaries by ERISA." The opinion also noted that "appointing an independent fiduciary, seeking outside legal and financial expertise, conducting regular meetings to ensure oversight, and continuing to monitor and receive updates on investment performance are hallmarks of a prudent investment process."

In rejecting the plaintiff-appellant's argument that Prudential's reliance on its consultant was imprudent, the court stated that there was "no indication that Prudential passively accepted its consultant's positive appraisal... without conducting the independent investigation that ERISA requires." It determined the assertions that the review process was insufficient failed because the record reflected meaningful investment option discussions and exchange of material between the investment committee and its consultant. The Third Circuit also agreed that challenges to the committee members' qualifications lacked merit, observing that the record demonstrated that the members had decades of investment-related experience, received fiduciary training upon joining the committee, and had access to ERISA counsel. Finally, the court agreed that the retention of proprietary funds did not, by itself, suggest imprudence. It noted that the same selection process applied to both affiliated and non-affiliated funds and the record reflected positive fund performance relative to benchmarks. 

The Third Circuit's decision reinforces the principle that ERISA's duty of prudence focuses on process rather than hindsight outcomes. 

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