Skepticism From One Judge
Not Every Expert Clears Summary Judgment
U.S. Circuit Judge Stephanos Bibas appeared more doubtful about reviving the case. In an exchange with Alec J. Berin of Miller Shah LLP, who represents the proposed class, Bibas cited a Jan. 9 unpublished Third Circuit opinion affirming summary judgment in Young Cho v. Prudential Insurance Co. of America et al.
That decision, Bibas noted, involved expert evidence yet still upheld a finding of a prudent investment process.
“So an expert doesn’t automatically get you past summary judgment,” Bibas said, adding that hiring an expert alone does not guarantee a trial.
Berin countered that the Prudential case differed because it was not based on violations of an investment policy statement or standards chosen by the fiduciaries themselves.
Who’s Representing Whom
The panel consisted of Judges Bibas, Porter and Bove.
The proposed class is represented by Alec J. Berin, James E. Miller, Laurie Rubinow, James C. Shah and John C. Roberts of Miller Shah LLP. Quest Diagnostics Inc. and other defendants are represented by Melissa D. Hill, Jeremy P. Blumenfeld, Tyler J. Hill and Gina F. McGuire of Morgan Lewis & Bockius LLP.
Representatives for both sides did not immediately respond to requests for comment Wednesday.
As the Third Circuit weighs its decision, the Quest 401(k) win suit stands as a reminder that, in ERISA litigation, the smallest policy footnote can become the fulcrum of a billion-dollar argument.
