On December 4, 2019, the U.S. Supreme Court heard oral argument in Intel Corp. Inv. Policy Comm. v. Sulyma, 139 S. Ct. 2692 (2019). The question presented is whether the three year limitations period in 29 U.S.C. § 1113(2), which runs from "the earliest date on which the plaintiff had actual knowledge of the breach or violation," bars suit where all the relevant information was disclosed to the plaintiff more than three years prior to the filing of the lawsuit, but the plaintiff chose not to read—or could not recall having read—the information.

Christopher Sulyma ("Sulyma") was employed by Intel Corporation ("Intel") from 2010 through 2012 and participated in two of Intel's ERISA-governed retirement plans. Intel's investment committee managed the retirement plan funds. The committee disclosed its investment decisions to Sulyma and other participants through various documents available on Intel's websites. The documents disclosed, among other things, the committee's decision to participate in certain alternative investments that impacted plan performance. Sulyma accessed some of this investment information on the websites, but testified that he was not actually aware of the alternative investments while working at Intel. Rather, Sulyma claimed he did not become aware of the alternative investments and impact on his retirement accounts until October 2015, when he filed suit against Intel on behalf of himself and others similarly situated. Sulyma asserted a claim for breach of fiduciary duty, among others.

Intel argued the suit was untimely because Sulyma had actual knowledge of the alleged breach more than three years before he filed suit through the disclosures on Intel's website. The district court granted summary judgment in favor of Intel. Sulyma appealed to the Ninth Circuit on the grounds that the district court incorrectly interpreted the level of "actual knowledge" required by Section 1113(2).

The Ninth Circuit agreed with Sulyma and noted that ERISA does not define "knowledge" or "actual knowledge," but interpreted Section 1113(2) as requiring that the defendant show "the plaintiff was actually aware of the nature of the alleged breach more than three years before the plaintiff's action is filed." While the court noted that the "exact knowledge required will...vary depending on the plaintiff's claim," the Ninth Circuit emphasized that "for a plaintiff to have sufficient knowledge to be alerted to his or her claim, the plaintiff must have actual knowledge, rather than constructive knowledge."

In reaching this holding, the Ninth Circuit rejected the Sixth Circuit's reasoning in Brown v. Owens Corning Inv. Review Comm., 622 F.3d 564 (6th Cir. 2010) that "[w]hen a plan participant is given specific instructions on how to access plan documents, their failure to read the documents will not shield them from having actual knowledge of the documents' terms," and that such constructive knowledge was sufficient to trigger the three-year statute of limitations period under Section 1113(2). While the Ninth Circuit recognized that there are "strong policy reasons" to conclude that "actual knowledge" may have a broader meaning under ERISA—including knowledge that a plaintiff can glean from corporate disclosures—the Ninth Circuit was ultimately not persuaded that the proffered policy reasons had force in this context.

The Supreme Court's decision will determine the burden of proof that defendants will be required to meet in order to show that a participant had actual knowledge of an alleged breach of fiduciary duty sufficient to trigger the three-year statute of limitations, and whether participants can avoid the three-year time bar by ignoring the disclosures sent to them.