Dear House Judiciary Committee: In Questioning William Barr, Employ the Ethics Complaint That 27 Distinguished DC Lawyers Filed Wednesday

FREDERICK BARON, DENNIS AFTERGUT, AUSTIN SARAT

Frederick Baron, former associate deputy attorney general and director of the Executive Office for National Security in the Department of Justice, Dennis Aftergut, a former federal prosecutor, and Austin Sarat, Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College, call upon the House Judiciary Committee to carefully read the ethics complaint by 27 distinguished DC lawyers against William Barr before questioning him today, July 28, 2020.

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Dormani v. Target Corp.

Docket: 18-2543

Opinion Date: July 28, 2020

Judge: Kobes

Areas of Law: ERISA

Plaintiffs, participants in Target's employee stock ownership plan (ESOP), filed suit against Target and its senior executives, alleging violations of the Employee Retirement Income Security Act (ERISA). The Eighth Circuit affirmed the district court's dismissal of the claims, holding that plaintiffs failed to show that the fiduciaries breached their duty of prudence. In regard to plaintiffs' proposed alternative actions, the court held that Target could not have implemented a purchase freeze without inevitable disclosure and a reasonably prudent fiduciary could still believe disclosure was the more dangerous route than the route taken. The court also held that plaintiffs failed to show that the fiduciaries violated the duty of loyalty in administering the plan because of their potential conflicts where plaintiffs point to nothing more than the tension inherent in the fiduciaries' dual roles as ERISA fiduciaries and Target officers. Plaintiffs also failed to show that the fiduciaries breached the duty of loyalty by making misleading statements to Plan participants because they failed to allege that the fiduciaries knew they were making untruthful statements in their disclosures and to specify which statements were untrue. Finally, plaintiffs' claim that Target's CEOs breached their duty to monitor the other ERISA fiduciaries cannot survive without an underlying breach.