The Ninth Circuit signaled that it might rehear Dorman
v. The Charles Schwab Corp., where earlier this year it held
that a mandatory arbitration provision required arbitration of an
ERISA fiduciary-breach claim.
In a
previous On the Subject, we wrote about the Ninth
Circuit's decisions in the Dorman case. The
Ninth Circuit determined that the plaintiff, who sued Schwab for
allegedly including underperforming investment options in a 401(k)
plan, had to arbitrate his individual claims and could not pursue a
class action. On September 10, 2019, the plaintiff asked the Ninth
Circuit to rehear the case, either with a panel or en
banc, because of a purported conflict with the Ninth
Circuit's decision in Munro v. University of Southern
California, 896 F.3d 1088 (9th Cir. 2018).
In Munro, the Ninth Circuit held that ERISA
fiduciary-breach claims are claims on behalf of a plan, not an
individual participant. To Dorman, this means that the Ninth
Circuit cannot compel him
