Plaintiff in UPenn 403(b) Suit Asks for Amicus Briefs to Not Be Accepted

For one thing, the plaintiff argues the briefs filed in support of the University of Pennsylvania provide the university an argument word-count advantage.

The plaintiff in a case challenging the management of the University of Pennsylvania’s 403(b) plan has filed an opposition against amicus curiae briefs filed in support of the university.

According to the court document, these briefs, if accepted, would greatly expand the scope of the factual and legal arguments that the plaintiffs must address within the 6,500-word limit allowed for their reply brief. “Instead of responding to a single 11,592-word brief, Plaintiffs would have to respond to briefs totaling nearly 28,000 words,” it states.

The plaintiff argues that under Federal Rules of Appellate Procedure, typically, the option of filing a reply brief provides the appellant more total words than the appellee. Accepting the briefs would provide defendants with an 8,000-word advantage.

The court document notes that although a 3rd U.S. Circuit Court of Appeals decision in Neonatology Assocs., P.A. v. Commissioner disapproved a “restrictive” approach to granting leave to file amicus briefs, at issue there was a motion for leave to file a single amicus brief. “That opinion did not address the potential prejudice to the opponent of allowing numerous amicus filings which effectively multiply the arguments on one side of an appeal while diluting the opponent’s ability to adequately respond,” it states.

In addition, the plaintiff argues that all three proposed briefs seek to inject irrelevant issues that are not before the court because they were not raised in the defendants’ opening brief. The opposition document says TIAA’s proposed filing simply disputes the truth of the plaintiffs’ allegations regarding TIAA’s products and services, and thus is irrelevant to the legal sufficiency of the plaintiffs’ allegations.

The plaintiff says the proposed brief of the American Council on Education argues for a fiduciary standard that is inconsistent with the standard advocated by the defendants. The opposition document contends that the council suggests that, in light of historical differences between 403(b) plans commonly offered by universities and 401(k) plans commonly offered by for-profit companies, courts should apply a different Employee Retirement Income Security Act (ERISA) fiduciary standard to fiduciaries of 403(b) plans.

The plaintiff argues that the proposed Chamber of Commerce brief urges the court to extend to ERISA fiduciary breach claims the “same approach to pleading” adopted in the context of “antitrust, retaliation, supervisory liability, RICO, and securities,” and the defendants do not advocate for the adoption of pleading standards developed in disparate areas of law, so the proposed brief is irrelevant.