Saturday, November 24, 2007
LaRue v. DeWolff, Boberg & Assoc., 06-865, set for oral argument on Monday, involves a 401k plan participant who claims that the plan administrator failed to make certain investments that the participant had directed and that he therefore is entitled to bring a 502(a)(2)/409 claim. The plan administrator argues that ERISA permits suit against a plan administrator only for “losses to the plan,” and that the participant’s losses were personal to him and did not affect the overall plan. The participant rejoins that his losses “directly [affect] the overall amount of assets held by the plan.” I think the participant has the better argument and that a loss to an individual participant is by definition a loss to the plan, thereby entitling the participant to sue for breach of fiduciary duty.
If the Court finds that a 502(a)(2)/409 claim does not exist, than the court is scheduled to consider whether appropriate equitable relief is available under 502(a)(3) under an equitable surcharge/make whole argument.
Paul plans to post an extensive commentary on the case once the transcript of the oral argument is available. Watch for Paul's post on Monday afternoon or Tuesday morning.