James W. Watkins, III, J.D., CFP Emeritus^TM, AWMA®

May It Please the Court:

The Department of Labor’s December, 2025, amicus brief urges this Court to hold that ERISA plan participants bear the burden of proving causation as part of their fiduciary-breach claims. That position is not merely inconsistent with ERISA’s text and trust-law principles—it is fundamentally incompatible with the Federal Rules of Civil Procedure, particularly Rule 9(b).

In its Pizarro amicus brief, the Department asserts that causation is an element plaintiffs must affirmatively establish and that courts err by shifting any burden to fiduciaries once a breach and loss are plausibly alleged. But that framing ignores the procedural consequences of what the Department is demanding. In ERISA fiduciary-breach cases, causation is inseparable from the fiduciary’s internal decision-making: what alternatives were considered, what information was reviewed, what risks were known, and why particular investments or fees were selected. Those facts go directly to the fiduciary’s knowledge, intent, and judgment—classic “conditions of a person’s mind.”

Rule 9(b) expressly provides that such mental states “may be alleged generally.” Fed. R. Civ. P. 9(b). The DOL’s position would nullify that rule in the ERISA context by requiring plaintiffs, at the outset, to plead facts establishing a causal link that necessarily depends on undisclosed fiduciary deliberations. This Court has made clear that while Rule 8 requires plausibility, it does not require plaintiffs to plead facts that are uniquely within a defendant’s control, nor to prove their case before discovery. Ashcroft v. Iqbal, 556 U.S. 662, 686–87 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

The Department’s Pizarro argument thus collapses the distinction between pleading and proof. To satisfy the causation burden the DOL proposes, plan participants would be forced to allege not only that a prudent fiduciary would have acted differently, but why this fiduciary did not—what it knew, what it ignored, and how it internally evaluated alternatives. That is precisely the type of heightened mental-state pleading that Rule 9 forbids and that this Court has repeatedly rejected. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).

Nor can the Department’s position be reconciled with ERISA’s remedial purpose or this Court’s trust-law jurisprudence. ERISA fiduciary duties are derived from the common law of trusts, which has long recognized that once a beneficiary shows a breach of duty and a resulting loss, the burden shifts to the fiduciary to disprove causation. Tibble v. Edison Int’l, 575 U.S. 523, 528 (2015); Varity Corp. v. Howe, 516 U.S. 489, 497 (1996). Several courts of appeals have faithfully applied that principle, holding that fiduciaries—who control the relevant information—are best positioned to explain whether losses would have occurred absent the breach. Brotherston v. Putnam Invs., LLC, 907 F.3d 17, 39–41 (1st Cir. 2018).

The DOL’s Pizarro brief asks this Court to reject that settled framework and impose a pleading regime under which ERISA plaintiffs must establish causation without access to the fiduciary’s files, deliberations, or explanations. That approach would not merely reallocate a burden of proof at trial; it would function as a gatekeeping rule that prevents claims from ever reaching discovery. Nothing in ERISA’s text, this Court’s precedent, or the Federal Rules supports such a result.

In short, the Department’s December, 2025, amicus position cannot be squared with Rule 9(b), Rule 8, or ERISA’s protective purpose. Accepting it would require this Court to hold—implicitly but unmistakably—that ERISA plaintiffs must plead fiduciaries’ states of mind with specificity, even though the Federal Rules expressly say they need not. This Court should decline that invitation and reaffirm that ERISA’s enforcement scheme remains governed by ordinary pleading rules and longstanding trust-law principles—not by the heightened and unworkable standard the Department proposes in Pizarro.

In its Pizarro brief, the Department asserts that causation is an element plaintiffs must affirmatively establish and that courts err by shifting any burden to fiduciaries once a breach and loss are plausibly alleged. But that framing ignores the procedural consequences of what the Department is demanding. In ERISA fiduciary-breach cases, causation is inseparable from the fiduciary’s internal decision-making: what alternatives were considered, what information was reviewed, what risks were known, and why particular investments or fees were selected. Those facts go directly to the fiduciary’s knowledge, intent, and judgment—classic “conditions of a person’s mind.”

Rule 9(b) expressly provides that such mental states “may be alleged generally.” Fed. R. Civ. P. 9(b). The DOL’s position would nullify that rule in the ERISA context by requiring plaintiffs, at the outset, to plead facts establishing a causal link that necessarily depends on undisclosed fiduciary deliberations. This Court has made clear that while Rule 8 requires plausibility, it does not require plaintiffs to plead facts that are uniquely within a defendant’s control, nor to prove their case before discovery. Ashcroft v. Iqbal, 556 U.S. 662, 686–87 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

The Department’s Pizarro argument thus collapses the distinction between pleading and proof. To satisfy the causation burden the DOL proposes, plan participants would be forced to allege not only that a prudent fiduciary would have acted differently, but why this fiduciary did not—what it knew, what it ignored, and how it internally evaluated alternatives. That is precisely the type of heightened mental-state pleading that Rule 9 forbids and that this Court has repeatedly rejected. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).

Nor can the Department’s position be reconciled with ERISA’s remedial purpose or this Court’s trust-law jurisprudence. ERISA fiduciary duties are derived from the common law of trusts, which has long recognized that once a beneficiary shows a breach of duty and a resulting loss, the burden shifts to the fiduciary to disprove causation. Tibble v. Edison Int’l, 575 U.S. 523, 528 (2015); Varity Corp. v. Howe, 516 U.S. 489, 497 (1996). Several courts of appeals have faithfully applied that principle, holding that fiduciaries—who control the relevant information—are best positioned to explain whether losses would have occurred absent the breach. Brotherston v. Putnam Invs., LLC, 907 F.3d 17, 39–41 (1st Cir. 2018).

The DOL’s Pizarro brief asks this Court to reject that settled framework and impose a pleading regime under which ERISA plaintiffs must establish causation without access to the fiduciary’s files, deliberations, or explanations. That approach would not merely reallocate a burden of proof at trial; it would function as a gatekeeping rule that prevents claims from ever reaching discovery. Nothing in ERISA’s text, this Court’s precedent, or the Federal Rules supports such a result.

In it’s new December, 2025, amicus brief, the DOL’s Solicitor General’s now argues a totally new position, a position diametrically opposed from the position the DOL argued earlier in its amicus brief whwn Pizarro was before the 11th Circuit Court of Appeals. The DOL now argues that the applicable standard is one involving procdural issues is rather than trust law issues. Even assuming the DOL’a new “procedural theory: has merit (it doesn’t), the DOL’s”precedural” argument is fatally flawed when the Federal Rules of Procedure are considered.

In short, the DOL’s December, 2025, amicus position cannot be squared with Rule 9(b), Rule 8, or ERISA’s protective purpose. Rule 9(b) expressly provides that mental states ” may be allegedly genrally.” The DOL’s position wouldd nullify that rule in the ERISA contaxt by requireing plaintiffs at the outset, to plead facts establishing a causal link that necessarily depends on undisclosed fiduciary deliberations.

This Court has made clear that while Fed.R.Civ.P. Rule 8 requires plaintiffs to plauisibily plead its case, it does not require plaintiffs to plead facts that are uiquely within a defendant’s control, nor to prove their case before discovery, Ashcroft v. Iqbal, 556 U.S. 662, 686-87(2009), Bell Atlantic Corp v. Twombly, 550 U.S. 544, 535 (2007). The DOL also objects to a plaintiff’s need for dicovery, which the DOL also argues is costly and unecessarey. The DOL’s objection to discovery is disenguous, as SCOTUS addressed and refuted this issue in Cunningham v. Cornell University. 604 U.S. ____ (2025). As Justice Jackson noted in Cunningham and other federal judges, most notably Judge Sutton of the 6th Circuit of Appeals, have noted, courts have various tools available to protect against abusive discovery, e.g., targeted discovery, controlled discovery.

Accepting the Solicior General’s December, 2025, amicus brief would require this Court to hold—implicitly but unmistakably—that ERISA plaintiffs must plead fiduciaries’ states of mind with specificity, even though the Federal Rules expressly say they need not. This Court should decline that invitation and reaffirm that ERISA’s enforcement scheme remains governed by ordinary pleading rules and longstanding trust-law principles—not by the heightened and unworkable standard the Department proposes in Pizarro.

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