In two recent court decisions (Hutchins v. HP Inc and Perez-Cruet v. Qualcomm Inc) plaintiffs claimed that employers’ decision to use forfeitures to reduce employer contributions (and not to pay for plan administrative expenses) was a breach of ERISA fiduciary responsibility. The courts reached opposite conclusions in these cases—with one court (Hutchins) dismissing the complaint and the other (Perez-Cruet) denying the motion to dismiss and allowing the case to proceed.

A new fiduciary case alleges that TIAA and Morningstar colluded to alter asset allocation tools to promote certain TIAA annuities. The case is directed at TIAA and Morningstar, rather than at plan sponsors—and could create liability for TIAA and Morningstar for both ERISA and non-ERISA plans. The complaint rehashes some old criticism of TIAA—but also contains some significant new accusations. If this case succeeds, it could have some far-reaching implications.

The jury found that Yale breached fiduciary duties and cause plan to pay excessive fees; at the same time the jury found that a fiduciary following a prudent process could have made the same decisions and awarded $0 in damages.

Several recent decisions handed down by federal appellate courts offer some good news for plan fiduciaries. In each of these cases the courts affirmed dismissals of fiduciary litigation, concluding that the facts alleged were just not enough to support a claim. The dismissals were based on the courts’ assessment that even if the general facts alleged were true (e.g., that other plans paid less in recordkeeping or management fees or that other funds performed better) –those facts would not show that the actions taken by the fiduciaries for these specific plans were not prudent.

The Supreme Court’s decision leaves unanswered many difficult questions facing fiduciaries.