If there’s one thing retirement plan sponsors learn quickly, it’s that “settled law” in ERISA litigation is often as stable as quick-sand. The latest example comes from the U.S. Department of Labor — and it’s a move that sponsors, committees, and counsel should not ignore.
Earlier this month, the DOL weighed in on a high-stakes ERISA case involving how the burden of proof is allocated in fiduciary breach suits. Historically, when the statute is silent, courts sometimes borrowed burden-shifting concepts from trust law — meaning that once a plaintiff showed breach and loss, the fiduciary might have to disprove causation. But in a newly filed amicus brief, the DOL did an about-face: it’s now advocating for the ordinary default rule that plaintiffs must prove every element of their claim, including causation.
Why does this matter? Because burden-shifting is not an academic procedural nuance — it’s a litigation fulcrum. When plaintiffs don’t have to prove causation up front, ERISA suits can become easier to plead, harder to defend, and more expensive to litigate. By backing the default rule, the DOL is effectively aligning itself with fiduciary defendants on a core procedural trench.
Whether you agree with the policy or not, sponsors should treat this as a fiduciary-risk signal. The DOL’s position will likely influence how courts — including possibly the Supreme Court — handle ERISA claims going forward. And if it becomes the standard, sponsors and their counsel may find themselves with more leverage in early motions to dismiss.
For plan committees and fiduciary officers, the takeaway is simple: don’t assume that long-standing litigation norms will stay the same. Litigation is shifting — and staying ahead means understanding not just the substance of fiduciary duty, but the procedural landscape that determines who wins and who pays.
