Earlier today, in Fifth Third Bancorp v. Dudenhoeffer, the U.S. Supreme Court declined to adopt the so-called Moench presumption of prudence pursuant to which many circuit courts had dismissed ERISA stock drop claims unless plan participants had pled allegations that the company’s economic situation was dire or the company was on the brink of collapse. The Court, however, made it clear that, to withstand a motion to dismiss, a participant would have to plead facts and circumstances that could plausibly lead to the conclusion that the plan fiduciaries acted imprudently, taking into account the unique circumstances presented by ESOPs. The Court stated that, absent “special circumstances,” allegations that plan fiduciaries should have recognized from publicly available information that a company stock fund was under- or overvalued are “implausible as a general rule.” Where a claim of imprudence is premised on nonpublic information, “a plaintiff must plausibly allege an alternative action that the defendant could have taken that would have been consistent with the securities laws and that a prudent fiduciary in the same circumstances would not have viewed as more likely to harm the fund than to help it.”