Fifth Third Bancorp v. Dudenhoeffer

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Fifth Third Bancorp v. Dudenhoeffer

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Conference of June 13, 2019

Docket No.	Op. Below	Argument	Opinion	Vote	Author	Term
12-751	6th Cir.	Apr 2, 2014 Tr.Aud.	Jun 25, 2014	9-0	Breyer	OT 2013

Holding: When a decision by a fiduciary of an “employee stock ownership plan” (ESOP) to buy or hold the employer’s stock is challenged in court, the fiduciary is not entitled to a “presumption of prudence.” Instead, ESOP fiduciaries are subject to the same duty of prudence that applies to Employee Retirement Income Security Act (ERISA) fiduciaries in general, except that they need not diversify the fund's assets.

Judgment: Vacated and remanded, 9-0, in an opinion by Justice Breyer on June 25, 2014.

Opinion analysis: Court rejects “presumption of prudence” for ESOP fiduciaries (Timothy Simeone)
Argument analysis: No “coach class” fiduciary duties? (Timothy Simeone)
Argument preview: Court to address “presumption of prudence” for ERISA fiduciaries (Timothy Simeone)
Court grants two new cases (UPDATED) (Lyle Denniston)
Petition of the day (Mary Pat Dwyer)

Date	Proceedings and Orders (key to color coding)
Dec 14 2012	Petition for a writ of certiorari filed. (Response due January 22, 2013)
Jan 15 2013	Order extending time to file response to petition to and including February 22, 2013.
Jan 22 2013	Brief amicus curiae of Keycorp filed.
Jan 28 2013	Consent to the filing of amicus curiae briefs, in support of either party or of neither party received from counsel for the petitioners.
Feb 22 2013	Brief of respondents John Dudenhoeffer, et al. in opposition filed.
Mar 5 2013	Reply of petitioners Fifth Third Bancorp, et al. filed.
Mar 6 2013	DISTRIBUTED for Conference of March 22, 2013.
Mar 25 2013	The Solicitor General is invited to file a brief in this case expressing the views of the United States.
Nov 12 2013	Brief amicus curiae of United States filed.
Nov 25 2013	Supplemental response filed by petitioners Fifth Third Bancorp, et al.
Nov 26 2013	DISTRIBUTED for Conference of December 13, 2013.
Nov 26 2013	Supplemental brief of respondents John Dudenhoeffer, et al. filed. (Distributed)
Dec 13 2013	Petition GRANTED limited to Question 1 presented by the petition.
Jan 8 2014	SET FOR ARGUMENT ON Wednesday, April 2, 2014
Jan 14 2014	Record received from U.S.C.A. 6th Circuit. The record is electronic.
Jan 27 2014	Joint appendix filed (3 volumes). (Statement of costs filed)
Jan 27 2014	Brief of petitioners Fifth Third Bancorp, et al. filed.
Jan 28 2014	Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the petitioners.
Jan 30 2014	Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the respondents.
Feb 3 2014	CIRCULATED.
Feb 3 2014	Brief amicus curiae of KeyCorp filed. (Distributed)
Feb 3 2014	Brief amicus curiae of Delta Air Lines, Inc. filed. (Distributed)
Feb 3 2014	Brief amici curiae of Chamber of Commerce of the United States of America, et al. filed. (Distributed)
Feb 3 2014	Brief amicus curiae of Securities Industry and Financial Markets Association filed. (Distributed)
Feb 3 2014	Brief amicus curiae of ESOP Association filed. (Distributed)
Feb 26 2014	Brief of respondents John Dudenhoeffer, et al. filed. (Distributed)
Feb 26 2014	Letter proposing a lodging of material published in Tax Notes, March 2014, received from counsel for respondents. filed. (Distributed)
Feb 28 2014	Proposal of counsel for respondents to lodge copies of an unpublished article cited to in their brief on the merits.
Mar 4 2014	Brief amicus curiae of AARP filed. (Distributed)
Mar 5 2014	Brief amicus curiae of United States filed. (Distributed)
Mar 5 2014	Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
Mar 5 2014	Brief amicus curiae of American Federation of Labor and Congress of Industrial Organizations filed. (Distributed)
Mar 5 2014	Brief amici curiae of Law Professors filed. (Distributed)
Mar 21 2014	Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.
Mar 24 2014	Reply of petitioners Fifth Third Bancorp, et al. filed. (Distributed)
Apr 2 2014	Argued. For petitioners: Robert A. Long, Jr., Washington, D. C. For respondents: Ronald Mann, New York, N. Y.; and Edwin S. Kneedler, Deputy Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.)
Jun 25 2014	Judgment VACATED and case REMANDED. Breyer, J., delivered the opinion for a unanimous Court.
Jul 28 2014	JUDGMENT ISSUED.

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This Week at the Court
On Monday, the Supreme Court released orders from the June 6 conference on Monday; the justices added five new cases to their merits docket for next term: Atlantic Richfield Co. v. Christian, McKinney v. Arizona, Intel Corp. Investment Policy Committee v. Sulyma, Monasky v. Taglieri and Comcast Corp. v. National Association of African American-Owned Media.
Also on Monday, the justices released their opinions in three argued cases: Quarles v. U.S., Return Mail v. U.S. Postal Service and Parker Drilling Management Services v. Newton.
On Thursday, the justices met for their June 13 conference; John Elwood's "Relist Watch" compiles the petitions that were relisted for this conference.
Major Cases
- Department of Commerce v. New York
  (1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.
- Lamone v. Benisek
  In case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.
- Kisor v. Wilkie
  Whether the Supreme Court should overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., which direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation.
- Rucho v. Common Cause
  (1) Whether plaintiffs have standing to press their partisan gerrymandering claims; (2) whether plaintiffs’ partisan gerrymandering claims are justiciable; and (3) whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander.
- The American Legion v. American Humanist Association
  (1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.
- Gamble v. United States
  Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.
see all this term’s cases »
Recent Decisions
- Quarles v. United States Michigan’s third-degree home-invasion statute substantially corresponds to or is narrower than generic burglary for purposes of qualifying for enhanced sentencing under the Armed Career Criminal Act.
- Parker Drilling Management Services, Ltd. v. Newton Under the Outer Continental Shelf Lands Act, when federal law addresses the relevant issue, state law is not adopted as surrogate federal law on the Outer Continental Shelf.
- Return Mail Inc. v. United States Postal Service The federal government is not a “person” capable of petitioning the Patent Trial and Appeal Board to institute patent review proceedings under the Leahy-Smith America Invents Act.
- Azar v. Allina Health Services Because the Department of Health and Human Services neglected its statutory notice-and-comment obligations when it revealed a new policy that dramatically – and retroactively – reduced Medicare payments to hospitals serving low-income patients, its policy must be vacated.
- Fort Bend County, Texas v. Davis The charge-filing precondition to suit set out in Title VII of the Civil Rights Act of 1964 is not a jurisdictional requirement.
- Mont v. United States Pretrial detention later credited as time served for a new conviction tolls a supervised-release term under 18 U.S.C. §3624(e), even if the court must make the tolling calculation after learning whether the time will be credited.
- Taggart v. Lorenzen A creditor may be held in civil contempt for violating a bankruptcy court’s discharge order if there is no fair ground of doubt as to whether the order barred the creditor’s conduct.
see all this term’s cases »
Current Relists
- Jordan v. City of Darien, Georgia Whether the existence of probable cause defeats a First Amendment retaliatory arrest claim as a matter of law.
- Klein v. Oregon Bureau of Labor and Industries (1) Whether Oregon violated the free speech and free exercise clauses of the First Amendment by compelling the Kleins to design and create a custom wedding cake to celebrate a same-sex wedding ritual in violation of their sincerely held religious beliefs; (2) whether the Supreme Court should overrule Employment Division, Department of Human Resources of Oregon v. Smith; and (3) whether the Supreme Court should reaffirm Smith’s hybrid-rights doctrine, applying strict scrutiny to free exercise claims that implicate other fundamental rights, and resolve the circuit split over the doctrine’s precedential status.
- McGee v. McFadden (1) Whether the U.S. Court of Appeals for the 4th Circuit erred when it found no constitutional error when the state failed to disclose Brady evidence, a letter from a jailhouse snitch, until the post-trial hearing for a motion for a new trial; (2) whether the state and federal courts’ decisions were contrary to Giglio v. United States, United States v. Bagley, Brady v. Maryland and Napue v. Illinois when the state failed to disclose material impeachment evidence, a letter from a jailhouse snitch who testified that petitioner confessed to him; and (3) whether the state and federal courts erred in finding that trial counsel rendered effective assistance of counsel when he failed to interview Michael Jones and call him as a witness.
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Cases argued 69

Cases decided 42

Summary reversals 5

Merits cases granted to date 73

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Cases argued	69
Cases decided	42
Summary reversals	5
Merits cases granted to date	73

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6
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