College Retirement Plan Suits Raise Standing, Privacy Questions

Employee Benefits News examines legal developments that impact the employee benefits and executive compensation employers provide, including federal and state legislation, rules from federal...

By Jacklyn Wille

The lawsuits against college retirement plans are moving forward with new questions of standing and privacy in the mix.

In one case, a federal judge hinted that she may be considering whether some of the central claims against Duke University are barred by lack of standing. In another case, attorneys for Columbia University say they should have access to sealed records in a case against New York University that’s pending before the same judge hearing Columbia’s case.

Since 2016, more than a dozen prominent universities have been hit with class actions over how they manage their retirement plans, with a dozen cases filed by St. Louis law firm Schlichter Bogard & Denton LLP. So far, the University of Pennsylvania is the only school to defeat one of these cases outright. Judges have allowed lawsuits to proceed against the University of Chicago, Cornell, Columbia, Duke, Emory, Johns Hopkins, Princeton, NYU, and Vanderbilt.

Standing Questioned

A federal judge on March 2 ordered Duke and the employees challenging its retirement plan to address whether the employees have standing to sue over two specific investment options included in the Duke plan.

The investment options—the CREF Stock Account and the TIAA Real Estate Account—have been challenged in several cases involving college retirement plans, and some judges have found the challenges to be viable. Duke and other schools have tried to have these claims dismissed for lack of standing, arguing that the employees filing these lawsuits never said they invested in these particular funds.

The judge hearing the Duke case, Catherine C. Eagles of the U.S. District Court for the Middle District of North Carolina, asked the parties to supplement both their legal arguments and the “factual record” related to whether the Duke employees have standing. Eagles didn’t announce deadlines for filing this information, other than to say the turnaround time would be “short.”

The case is Clark v. Duke Univ., M.D.N.C., No. 1:16-cv-01044-CCE-LPA, order on additional briefing 3/2/18.

Unsealing Records

Also on March 2, attorneys for Columbia University asked Judge Katherine B. Forrest of the U.S. District Court for the Southern District of New York to unseal records filed in the pending case against New York University, which is scheduled to go to trial next month.

Through its attorneys at Mayer Brown LLP, Columbia argued that because Schlichter Bogard is litigating both the case against NYU and the case against Columbia, those attorneys have an unfair advantage. Specifically, Schlichter has access to sealed documents in the NYU case that could have some bearing on the Columbia case, Columbia argued.

Columbia said no compelling reason has been shown that would justify keeping the NYU records private. It asked Judge Forrest to unseal documents that NYU and the NYU workers filed in the course of debating whether the case should be resolved without a trial.

The case is Sacerdote v. New York Univ., S.D.N.Y., No. 1:16-cv-06284-KBF, motion to intervene and unseal documents 3/2/18.

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