Matthew W.H. Wessler

The Employee Retirement Income Security Act gives a participant six years to sue over a fiduciary breach, or three years from the date the participant gains "actual knowledge" of it. The district court held that the website and the emails had given Sulyma actual knowledge more than three years before he sued and granted Intel summary judgment; the Ninth Circuit reversed, and the Supreme Court agreed to hear Intel’s appeal. Matthew W.H. Wessler argued for Sulyma on December 4, 2019. His brief drew the line between access to a disclosure and "actual knowledge," which required that the participant had in fact become aware of the information: emails and website records could be evidence of knowledge, but making information available did not establish, as a matter of law, that the recipient knew its contents. The word "actual" meant real awareness, the brief argued, and not what a participant should have learned.

On February 26, 2020, the Court ruled for Sulyma without dissent. Justice Samuel Alito wrote that a plaintiff does not necessarily have actual knowledge of information in a disclosure he receives but does not read or cannot recall reading; to have actual knowledge, the plaintiff must in fact have become aware of that information. The opinion left defendants the usual ways of proving knowledge at any stage of a case, including evidence of willful blindness, and affirmed the Ninth Circuit. Intel Corp. Investment Policy Committee v. Sulyma now fixes when the shorter clock starts for participants in retirement plans governed by the statute.

Seven Hundred Percent

Christina Williams and Michael Stermel borrowed between $1,000 and $1,600 from AWL, an online lender owned by the Otoe-Missouria Tribe, under three loan agreements with annual rates from 496.55 to 714.88 percent. The agreements provided that tribal law governed the loans, that any dispute would be arbitrated, and that the arbitrator would apply tribal law and the agreement’s own terms. The borrowers sued AWL’s holding company, Red Stone, and three of its board members in the Eastern District of Pennsylvania under the federal racketeering statute and Pennsylvania’s consumer laws. The defendants moved to compel arbitration and invoked a delegation clause that sent any question about the agreement’s enforceability to the arbitrator. Judge Mitchell S. Goldberg denied the motion.

Wessler argued the appeal for the borrowers in the Third Circuit on February 5, 2020, with Michael Quirk. On July 14, 2020, Judge Patty Shwartz wrote for the court in Williams v. Medley Opportunity Fund II that an arbitration confined to tribal law was a prospective waiver of the borrowers’ federal statutory rights, that the waiver violated public policy and could not be severed from the rest of the agreement, and that the whole agreement fell with it, delegation clause included. The borrowers’ claims went forward in court.

A week later the Fourth Circuit decided two appeals on which Wessler was counsel for Virginia borrowers who had taken loans of $500 to $1,700 from Plain Green and Great Plains Lending, lenders owned by the Chippewa Cree and Otoe-Missouria tribes, at rates from 219 to 374 percent in a state whose usury law generally caps interest at twelve percent. The defendants were not the tribes but the investors alleged to have funded and run the operation: Haynes Investments and L. Stephen Haynes in one case, and in the other Sequoia Capital Operations, the venture firm that held about a quarter of Think Finance, the company that had set up the tribal lending. On July 21, 2020, Judge G. Steven Agee wrote in Gibbs v. Haynes Investments and Gibbs v. Sequoia Capital Operations that the agreements’ choice of tribal law shut out the borrowers’ racketeering claims and treble damages, that the delegation clauses shared the defect, and that none of it could be enforced.

A Patent on a Pen

Sanofi sells insulin glargine under the name Lantus; in 2014 the drug’s United States sales were $7.87 billion. In 2013 the company listed U.S. Patent No. 8,556,864 in the Food and Drug Administration’s Orange Book. The patent claimed drive mechanisms for drug-delivery devices, and it did not mention insulin glargine, Lantus, or the disposable SoloSTAR pen in which the drug is sold. When Eli Lilly prepared to sell its own insulin glargine, Basaglar, in its KwikPen and certified that the patent was invalid or not infringed, Sanofi sued within forty-five days, which under the Hatch-Waxman Act stayed FDA approval of Lilly’s product for thirty months. The companies settled in 2015, and Lilly’s license began in December 2016.

Direct purchasers of Lantus sued Sanofi under section 2 of the Sherman Act, alleging that the listing had delayed competition and kept prices high. Magistrate Judge Judith G. Dein dismissed the claims, holding that the listing had been reasonable. Wessler and Joshua Matz led the purchasers’ appeal, with Thomas Sobol of Hagens Berman and the other firms in the case. On February 13, 2020, Judge William Kayatta wrote for the First Circuit in In re Lantus Direct Purchaser Antitrust Litigation that the statute and the FDA’s regulations required a manufacturer to list only patents claiming the drug for which the application had been submitted, that the ’864 patent did not, and that the complaint plausibly alleged an improper submission that had contributed to the delay. The court reversed the dismissal and sent the case back; Sanofi would have to prove on the record that it had tried in good faith to comply with the listing rules.

Before Certification

Current and former Whole Foods employees sued the company in the District of Columbia, alleging that it had manipulated an incentive bonus program and deprived them of wages they had earned, and asked to represent past and present employees across the country. Whole Foods, a Delaware corporation based in Texas, moved to dismiss the claims of every proposed class member outside the District for lack of personal jurisdiction, relying on the Supreme Court’s 2017 decision in Bristol-Myers Squibb. The district court denied the motion and certified the question for appeal. Wessler argued for the employees on September 25, 2019, and on March 10, 2020, Judge David Tatel wrote for the D.C. Circuit in Molock v. Whole Foods Market Group that the motion was premature: until a class is certified, putative class members are not parties before the court, and a jurisdictional challenge to their claims has to wait until certification adds them to the case.

Williams, Cornell, and Public Justice

Wessler graduated from Williams College and Cornell Law School, clerked for Judge Richard L. Nygaard of the Third Circuit and Judge William E. Smith of the District of Rhode Island, practiced at Williams & Connolly in Washington, and served on the Obama presidential campaign’s sensitive-litigation team. He then spent six years at Public Justice, where he built the group’s Supreme Court practice and argued US Airways v. McCutchen, an ERISA case, in 2012. In July 2015 he joined Deepak Gupta’s three-year-old appellate boutique as a named partner, and the firm became Gupta Wessler. He is a principal, divides his time between Cambridge, Massachusetts, and Washington, and spends time in the mountains when he can.

He is outside appellate counsel to the American Association for Justice and represents national unions including the Service Employees International Union and the American Federation of Teachers. His Supreme Court briefs for the association have included Merck Sharp & Dohme Corp. v. Albrecht, Hardeman v. Monsanto, and Henry Schein v. Archer & White Sales. On April 1, 2026, he filed the association’s brief with Public Justice in Monsanto v. Durnell, the Roundup case from Missouri, arguing that Missouri’s duty to warn John Durnell, who developed non-Hodgkin’s lymphoma after using the weedkiller, was consistent with Monsanto’s duties under federal pesticide law; he said that day that chemical companies like Monsanto had gone to the courts, the state legislatures, and Congress to seek immunity and to deprive Americans of the right to hold the company accountable.

October 6, 2026

Winston R. Anderson, a former Intel employee, sued the company’s Investment Policy Committee in the Northern District of California in October 2019 on behalf of the plans’ participants. The complaint concerned the strategy Sulyma had challenged: after the 2008 crisis Intel had rebuilt its custom target-date and diversified funds around hedge funds and private equity to damp volatility, and the participants alleged that the funds had charged more and earned less than the alternatives available to the fiduciaries. The district court dismissed the complaint because it did not identify a "meaningful benchmark" against which the funds’ returns could be judged, and on May 22, 2025, the Ninth Circuit affirmed, holding that a claim of imprudence built on underperformance has to plead a comparator with similar objectives and risks.

Wessler petitioned for Anderson on October 20, 2025. The petition argued that the benchmark rule appears nowhere in the statute or the Court’s decisions, that it conflicts with the ordinary plausibility standard, which weighs a complaint’s allegations together, and that it keeps participants from discovery of the one thing they cannot see from outside the plan, how the fiduciaries made their decisions. The Court granted review on January 16, 2026. He argued Anderson v. Intel Corporation Investment Policy Committee on October 6, 2026, against Williams & Connolly, his former firm, for Intel. Sulyma asked when a participant knows enough to start ERISA’s shorter clock; Anderson asks what a participant must plead to start a case at all. The Court has not yet ruled.