Fiduciary's purchase of retail class shares rather than institutional class shares in 63 of 103 funds states an ERISA claim under duty of prudence. The subsequent finding of prudent revenue sharing doesn't make the error harmless. Deft has burden to establish that the losses didn't flow from the imprudent acts.
Refusal of discretionary leave to amend under Rule 16 was an abuse of discretion, since the scheduling order only listed the date beyond which amendments of right would not be timely. Denial of leave to amend prejudiced post-trial motions.
Lack of timely response to motion to strike jury trial demand was sufficient waiver.
Trial court's use of written direct testimony is not per se an abuse of discretion.
No clear error in rejeciton of claim that the Plan should have consolidated its record-keeping, given the testimony on IT difficulties.
No clear error in discrediting expert testimony on fund benchmarking.
Judge was not disqualified from presiding by the implicaitons of the fact that she left the bench six months later to re-join a law firm whose chairman, her mentor, is on the University's Board of Trustees.
DISSENT IN PART:
Since retail class share enable revenue sharing to offset recordkeeping costs, no error in dismissal of claim of breach of duty of prudence in opting for retail rather than institutional class shares; the fiduciary followed a sufficiently deliberative process. Scheduling order setting date beyond which pleadings can;t be amended without leave is sufficient to indicate that in the normal course, no pleadings may be amended.