What Counts as Proof?
At Tuesday’s hearing, the judges zeroed in on whether comparison evidence is required at the summary judgment stage to prove ERISA violations tied to underperforming investments.
“So comparison evidence is required at the summary judgment stage?” asked U.S. Circuit Judge Robert J. Luck, pressing Royal Caribbean attorney Lars Golumbic.
Golumbic agreed, but Luck appeared unconvinced that faulty comparisons alone should doom the workers’ case. He noted the plaintiffs argued there was additional evidence showing that a prudent fiduciary would have avoided the challenged funds.
Vegas Analogies and Judicial Skepticism
U.S. Circuit Judge Andrew L. Brasher voiced greater skepticism, questioning whether the plaintiffs had truly shown imprudence. He likened the investment choices to a calculated decision rather than reckless behavior.
“They didn’t take the money to Vegas and put it on black, right?” Brasher asked, prompting debate over how far fiduciary discretion extends.
Johnson’s attorney, Brock Specht, countered that the funds were far from mainstream, saying other fiduciaries were abandoning them rather than embracing them.
“These are funds other fiduciaries are running away from, not adding, to their plans,” Specht said.
Brasher later returned to his casino metaphor, asking how courts should evaluate comparisons if an investor truly gambled with retirement assets.
“You’re going to compare that to crypto probably,” Golumbic replied, drawing laughter from the bench.
