Latest Case This Week: In re: Allergan ERISA Litigation (3d Cir.)

In Ruth We Trust: How the Pregnant Workers Fairness Act Can Promote Women’s Equal Citizenship and Justice Ginsburg’s Legacy

JOANNA L. GROSSMAN

In honor of the late Justice Ruth Bader Ginsburg, SMU Dedman School of Law professor Joanna L. Grossman explains how the Pregnant Workers Fairness Act (PWFA) can promote women’s equal citizenship and protect Justice Ginsburg’s legacy of shaping gender equality. Grossman argues that the PWFA could help break down entrenched occupational segregation in the American economy, and, in so doing, honor Justice Ginsburg’s lifelong commitment to ensuring that women can be full members of society.

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A Half Century After Its Publication, What Can “The Greening of America” Tell Us About the United States Today?

RODGER CITRON

In recognition of the 50-year anniversary of the publication of Charles Reich’s “The Greening of America,” Touro law professor Rodger D. Citron explains what Reich actually said in “The Greening,” explains why it generated such a strong response, and reflects on what the piece has to say about the fractures of our current moment. Citron cautions that the promise of a new consciousness is as alluring—and may be as illusory—as it was when Reich wrote the article and book, 50 years ago.

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In re: Allergan ERISA Litigation

Court: US Court of Appeals for the Third Circuit

Docket: 18-2729

Opinion Date: September 18, 2020

Judge: Jordan

Areas of Law: Antitrust & Trade Regulation, ERISA

The plaintiffs are participants in the Allergan Savings and Investment Plan, which provides various investment options, including an employee stock ownership feature for buying Allergan stock. According to the plaintiffs, the defendants were Plan fiduciaries and owed them commensurate duties under the Employee Retirement Income Security Act (ERISA). They claim that, although the public was unaware, the defendants knew or should have known that, before the divestiture of its generic-drug business, Allergan had conspired with other generic-drug manufacturers to fix prices, thereby artificially boosting its financial performance and its stock price. The plaintiffs cited inquiries from members of Congress and the Antitrust Division of the Department of Justice, seeking information about large price increases in certain generic drugs. The plaintiffs do not allege that Allergan was ever charged in connection with the investigation but claim that the defendants’ failure to remove Allergan stock as a Plan investment option or otherwise take action to protect Plan participants, violated ERISA. The Third Circuit affirmed the dismissal of the complaint. Even viewed in the light most favorable to the plaintiffs, the well-pled factual allegations fail to support a plausible inference that Allergan conspired with competitors to fix prices. Because all of the plaintiffs’ causes of action ultimately rest on the premise that the defendants knew or should have known about that supposed illegal conduct, the absence of allegations sufficient to support the existence of it is fatal to each of their claims.