By Kellie Mejdrich
Law360 (August 1, 2025, 5:57 PM EST) — The Ninth and Eleventh circuits in August will hear from employers fighting trial court decisions refusing to kick proposed class actions into individual arbitration.
Here’s a look at four coming oral argument sessions in Employee Retirement Income Security Act litigation that should be on benefits lawyers’ radar.
401(k) Arbitration Fight at 9th Circ.
Attorneys are keeping tabs on an appeal from The Capital Group Cos. that seeks to force individual arbitration of a proposed class action from an ex-worker alleging 401(k) plan mismanagement, given that several other circuit courts have recently denied bids to force out-of-court dispute resolution of planwide ERISA claims.
Arguments before a three-judge panel are set for Aug. 11 in the Capital Group’s appeal, aiming to reverse a California federal judge’s denial of a motion to compel arbitration from August 2024. The court’s denial was based on a finding that the arbitration provision in retirement plan documents was unenforceable because it purported to waive statutory rights under ERISA.
Ex-worker Cathy Pover first sued in November 2023, alleging in her complaint that underperforming and costly in-house fund offerings drained future savings from workers’ $5 billion employee 401(k) plan and generated millions in fees for a Capital Group subsidiary. In a brief filed with the Ninth Circuit in April, Pover argued the lower court properly invoked the effective vindication doctrine under the Federal Arbitration Act, which lets judges overrule an arbitration agreement if it blocks a party from being able to bring claims under federal law.
Employer-side attorney Anne Tyler Hall, managing partner at Hall Benefits Law, said she’s watching the case, and took note of how the Ninth Circuit had previously enforced arbitration of a proposed class action in 2019 in Dorman v. Charles Schwab Corp.
“It’s very interesting to me that the Ninth Circuit has taken a different view of arbitration enforceability,” Hall said.
She added that while the U.S. Supreme Court hasn’t yet taken up the issue of ERISA arbitration, “I think it’s going to continue to be an issue, and probably prime for high court review.”
The case is Pover v. The Capital Group Cos. Inc. et al., case number 24-5298, in the U.S. Court of Appeals for the Ninth Circuit.
ESOP Arbitration Push at 11th Circ.
Another arbitration dispute grabbing attorneys’ attention is at the Eleventh Circuit, where a legal technology company and its employee stock ownership plan trustee hope to force individual arbitration of a proposed class action alleging ESOP participants lost money on an undervalued stock deal.
A three-judge panel has scheduled arguments for Aug. 12 in the appeal from A360 Holdings LLC, a360inc executives and Argent Trust Co., the A360 ESOP’s trustee, seeking to overturn a Georgia federal judge’s denial of a motion to compel arbitration from March 2024.
The appeal has drawn significant outside participation, with the U.S. Department of Labor filing an amicus brief in October in favor of workers’ bid that the appellate court affirm the arbitration denial. In November, an advocacy group for trial attorneys, the American Association for Justice, also filed a brief, in support of keeping the dispute in court.
Mark Boyko, a plaintiff-side partner at Bailey & Glasser LLP, said he was skeptical of the employer-side bid at the Eleventh Circuit.
“I have a hard time seeing courts reversing the trend of correctly ruling that the effective vindication doctrine is violated by many of these arbitration provisions,” Boyko said.
The case is Eboni Williams et al. v. Gerald Shapiro et al., case number 24-11192, in the U.S. Court of Appeals for the Eleventh Circuit.
NFL Disability Fight at 11th Circ.
A former NFL player will ask the Eleventh Circuit to revive his suit seeking additional benefits from the NFL’s disability plan for retired players, which a Florida federal judge tossed as brought too late.
A three-judge panel is set to hear arguments on Aug. 13 in the appeal from former defensive end Chidi Ahanotu, who last played in the NFL during the 2004 season. Ahanotu’s career spanned numerous teams: the Tampa Bay Buccaneers, St. Louis Rams, Buffalo Bills, San Francisco 49ers and the Miami Dolphins.
Ahanotu first sued the Bert Bell/Pete Rozelle NFL Player Retirement Plan and its board in May 2023, alleging that his disability benefits award was based on a fraudulent alternation of his application that he didn’t know about. But a Florida federal judge threw out Ahanotu’s suit in April 2024, concluding the claims were time-barred given that he received his benefits determination in 2006.
The case is Chidi Ahanotu v. The Retirement Board of Bert Bell/Pete Rozelle NFL et al., case number 24-11442, in the U.S. Court of Appeals for the Eleventh Circuit.
401(k) Investment Suit at 9th Circ.
In addition to taking up an employer’s dispute over arbitration involving a 401(k) plan, the Ninth Circuit this month is set to weigh an ex-worker’s bid to revive allegations of retirement plan mismanagement against biotechnology company Genentech.
The appellate court set an argument date for Aug. 26 in the appeal from ex-worker Matthew Wehner, who seeks to revive allegations that Genetech violated ERISA because a suite of target-date funds in the company’s employee 401(k) plan underperformed.
Wehner argues on appeal that a California federal judge’s decision to toss claims challenging investment offerings in 2021 was based on the application of an erroneously high standard for comparing allegedly imprudent investments to better-managed ones. Other claims in the case proceeded through settlement before Wehner appealed to the Ninth Circuit to seek revival of the fund performance claims.
Boyko, at Bailey & Glasser, said he’s watching how the Ninth Circuit rules in the case. “The Ninth Circuit, and especially the Northern District of California, have been really hard on plaintiffs on this meaningful benchmark standard, especially when applied to target-date funds,” he said.
Boyko also said he disagreed with the appellate court’s recent ruling affirming dismissal of a proposed class action brought by Intel workers, whom he represented, for lack of a meaningful benchmark.
“By requiring the benchmark to be identical, you prohibit any litigation against a target-date fund for doing something that no other fund does. … The very thing that makes the fund imprudent now has to become part of the benchmark, and so you can’t actually measure what the imprudence is costing,” Boyko said.
The case is Wehner v. Genentech Inc. et al., case number 24-2630, in the U.S. Court of Appeals for the Ninth Circuit.
Hall Benefits Law, LLC
Latest posts by Hall Benefits Law, LLC (see all)
- Colorado First State to Place Price Cap on Prescription Drug - November 27, 2025
