Friday, November 30, 2007
Thanks to Paul for bringing to my attention President Bush's move to suspend an impending strike at Amtrak. The ALF-CIO Weblog reports:
Just a few days before Amtrak workers could strike for a fair contract, President Bush intervened and issued an executive order establishing a Presidential Emergency Board (PEB) to investigate failed contract talks between the nation’s passenger railroad and eight unions. The order prevents any potential strikes by Amtrak’s 7,500 union employees for 60 days. Several of the unions had taken strike votes.
The PEB becomes effective 12:01 a.m. Dec. 1. The railroad’s union employees have been working without a new contract since negotiations began in January 2000. Under the Railway Labor Act, contracts do not expire. The unions rejected arbitration by the National Mediation Board (NMB) in October. On Oct. 31, the NMB released the parties from mediation, beginning a 30-day cooling-off period that was set to expire Dec. 1.
The PEB has 30 days to investigate the dispute and issue nonbinding recommendations for settlement. After the PEB reports to Bush, both sides have a 30-day cooling-off period to consider its recommendations. If no agreement is reached, the parties will be free to engage in “self-help” at the end of the second cooling-off period—that is, the company can then lock out workers or impose employment terms, and the union is free to strike unless Congress takes action to impose its own contract settlement on the parties.
At least one union official expressed hope that the PEB will lead to a settlement of the dispute, but that will depend on what the PEB finds. Stay tuned.
Erik Jensen (Case Western) has published what can only be called a timely piece in the Oklahoma City University Law Review: Law School Attire: A Call for a Uniform Uniform Code.
The abstract on SSRN merely says, "
Law professors dress scruffily, and we need to do something about that."
So I had to dig a little deeper and Erik got yet another download. And here's the first paragraph:
Well, yes. That's it exactly. Style of dress matters, and clothing in American law schools should reflect good, traditional values. A tie with regimental stripes has a lot more class than a polo shirt or any other form of "pimp chic." Legal-academic attire should complement the majesty of the law.
Although I do not believe Erik is completely in earnest in this endeavor, I must say I disagree anyhow. Being one of the true schlumps on my faculty, I have always argued that you should dress what you are.
I am a labor lawyer, so I dress very much like your average Teamster.
According to the 23rd Annual survey by PNC Wealth Management, the cost of "The Twelve Days of Christmas" is $19,507 in 2007, a 3.1% increase over last year.
Apparently, this increase in expense is caused by the higher price of gold (five gold rings now cost $395, up 20% ) and increased compensation for minimum wage workers (those milk maids, the only unskilled laborers in the song, are becoming more expensive to hire).
No word yet on how much a partridge in a pear tree is going for, though partridge prices remain flat (not a big food item).
This story comes to us from England via Plan Sponsor.com:
Chetankumar Meshram, 27, an Indian-born British man who was dismissed from a New Delhi call center for not sounding English enough, has won a discrimination lawsuit in England. The Bedford Employment Tribunal agreed with his claim that he suffered both direct and indirect discrimination and awarded him $10,000 compensation for hurt feelings and expenses.
"I know I speak with an accent but my job out there was to give technical advice, not to give expertise on how to communicate."
With Dell and others exporting customer service jobs to India and other countries, I wonder whether it will be too long before we hear of such suits in this country and also whether the outcomes will be the same under our employment discrimination laws.
The take-home point is that if you're a 401(k) account holder, you will be able to seek recovery for money lost in your account if that money is lost because of some kind of wrongdoing or negligence by the person in charge of your account. Like in [the] LaRue [case], if you give investment instructions to do something, and they're ignored and you lose money, you can recover on that.
For the entire article, see High Court Case May Have Big Effect on 401(k)s.
Thursday, November 29, 2007
Robert C. Bird (U. Conn. - Marketing) has just posted on SSRN his article (forthcoming Pace L. Rev.) An Employment Contract 'Instinct With an Obligation': Good Faith Costs and Contexts. Here's an excerpt from the abstract:
This article arises from a symposium sponsored by Pace University School of Law celebrating the ninetieth anniversary of the famous decision of Wood v. Lucy, Lady Duff-Gordon ....
Three challenges exist to the orderly development of the good faith doctrine in employment law. First, the meaning of good faith remains far from certain. Courts have intermingled good faith with other employment doctrines thereby hindering its widespread acceptance. Second, the good faith covenant in employment lacks mutuality. Usually bilateral in the contractual context, the covenant remains an obligation that usually runs only from the employer to the employee. The questions of whether the covenant should obligate employees and what the consequences of such an obligation could be remain unaddressed. Finally, and perhaps most interestingly, there is a limited understanding of the costs of the good faith duty. The emerging empirical work studying the effects of wrongful discharge law, of which the duty of good faith is a part, reveals potential economic costs of this important doctrine articulated by Judge Cardozo ninety years ago.
Yes, indeed -- good faith in the employment context is clear as mud. Good work, Robert!
Update: Here is the article that Robert Bird (Connecticut Business) refers to on Shiftwork in his comments below. And just to be clear, I did not mean to suggest that the connection between shiftwork and cancer was far-fetched, only that everything seems to be connected to cancer these days.
Yahoo! News (via AP) has news about a new connection between work and getting cancer:
It was once scientific heresy to suggest that smoking contributed to lung cancer. Now, another idea initially dismissed as nutty is gaining acceptance: the graveyard shift might increase your cancer risk.
Next month, the International Agency for Research on Cancer, the cancer arm of the, will classify shift work as a "probable" carcinogen.
That will put shift work in the same category as cancer-causing agents like anabolic steroids, ultraviolet radiation, and diesel engine exhaust.
Confused as I was at this point of the article? So here's the thing:
Scientists suspect that shift work is dangerous because it disrupts the circadian rhythm, the body's biological clock. The hormone melatonin, which can suppress tumor development, is normally produced at night.
Coming next: living and breathing increase your cancer risk.
Thanks to Paul for sending my way word that the Supreme Court has asked the parties in Hall Street Associates v. Mattel to brief new legal issues. The issue in the case is whether parties to an arbitration agreement can contractually alter the terms of judicial review. The party urging enforcement of the arbitration award argues that the Federal Arbitration Act exclusively provides the applicable law; the party opposing enforcement argues that state law, and a federal court's inherent authority, both are additional sources of applicable law. The Court has ordered the parties to brief the source-of-law issue. For more, see Scotusblog's New Layer of Dispute on Arbitration.
The U.S. Department of Labor's (DOL) regulatory agenda for 2007 included plans to review the FMLA regulations in light of the U.S. Supreme Court's 2002 decision in Ragsdale v Wolverine Worldwide Inc, 145 LC ¶34,457 , 535 U.S. 81, among other things. However, it seems that, at least for now, no major overhaul, or even a minor one, of the regulations will be forthcoming.
Speaking before an audience of the National Employment Law Institute's 28th Annual Conference on Developments in Employment Law, attorney Ellen McLaughlin of the law firm Seyfarth Shaw, LLP, remarked that the DOL's December 2006 request for public comments, rather than issue proposed new rules puzzled many. It was even more surprising that in June 2007, the DOL released a lengthy analysis of the more than 15,000 comments it received, highlighting particular areas of conflict.
According to the DOL's analysis (see Wages-Hours ¶30,047), employers seem to have few concerns about the use of family leave for birth or adoptions. Rather, the use of unscheduled intermittent leave for medical appointments or treatments is most troubling to employers. Proper and sufficient medical certification is another area of concern--employees believe it is too burdensome, while employers rely on it to determine if an employee truly has a serious medical condition.
I think it is more likely that if a Democrat is elected President next year, the FMLA will see a much more thorough overhaul, including the incorporation of paid-time off provisions.
Today's workplace regulatory system consists of a confused web of rules derived from multiple sources of law. Nowhere is this confusion more apparent than the governance of terminations. Scores of federal laws apply to the end of the employment relationship. In addition, state and local governments have their own set of termination rules, which may or may not track the federal rules. The result is a patchwork of regulations that often require parties to apply different standards, and to pursue claims in multiple forums, for the same dispute. This complexity makes it difficult for both employers and employees to understand, comply with, and enforce termination rules. Those difficulties, in turn, undermine the rules' effectiveness and result in a system of workplace regulations that often fails to achieve its goals.
In response to this problem, this Article proposes a universal law of termination. This federal law would replace all current state, local, and federal rules governing terminations. The central substantive provision of the law of termination would be a prohibition against terminations that lack a reasonable business justification. However, the proposal's central aim is not to promote unjust termination protection on its merits. Rather, the Article takes a pragmatic approach to workplace regulation and makes the perhaps counter-intuitive argument that we can better achieve the goals of today's termination rules by replacing them with a single law of termination.
I think Jeff has a good point. Regardless of whether you favor a substantive standard of at-will or just-cause or business justification, the one thing we all can agree on is that the existing standards are inconsistent and inefficient. I hope this article will spark a discussion on how the various standards and fora can be reconciled.
Wednesday, November 28, 2007
The New York Times has just reported that the Broadway stagehand strike is over. Late last night, the parties came to a tentative agreement, although the details haven't been announced yet:
The league representing Broadway’s theater owners and producers and the union representing its stagehands announced a settlement last night, bringing to an end a strike that had shuttered most of Broadway for 19 days, disrupted the plans of thousands of theatergoers and cost the city tens of millions of dollars in lost revenues.
No details of the tentative settlement were available. The accord ended the second strike on Broadway in five years but the longest since a 25-day musicians’ strike in 1975. A musicians’ strike in 2003 lasted just four days. The announcement came around 10:30 last night, capping a third day of marathon negotiations, and was met by cheering stagehands, with nearly 100 gathering outside the law offices where the negotiations had been taking place.
Leaving around 10:45 p.m., Charlotte St. Martin, the executive director of the league, announced, to loud applause and some boos and hisses, “Performances begin tomorrow night.” . . . About five minutes later, senior union officials, including James J. Claffey Jr., the president of Local 1, the stagehands’ union, came outside to louder applause, holding their fingers in the air to represent Local 1. “You represented yourselves and your families and your union proud,” Mr. Claffey said to the stagehands who had gathered. The membership of the union is scheduled to vote on the settlement in 10 days.
There are no indications at this point that the union vote will be controversial, but without the details it's hard to say for sure. However, given the amount of money already lost and the amount at stake in the holiday season now upon us, I'd go out on a limb and say that everyone involved is inclined to get this over with now.
As many readers on this blog are aware, one of the more interesting labor victories over the last several years was the Coalition of Immokalee Workers' ability to convince McDonald's and Taco Bell to pay a penny more per pound of Florida tomatoes, which spurred other improvements in the industry. The Coalition was run primarily by immigrant workers and relied on, among other things, a multifaceted PR campaign that drew support from a diverse range of local community members. The Coalition's next target was Burger King, but things aren't looking as promising this time. As reported by the A.P.:
Burger King . . . has joined the Florida Tomato Growers Exchange in opposing such a deal. The growers exchange maintains the agreements may violate antitrust laws, though it has declined to offer specifics. It threatened members that accept the deal with $100,000 fines, three independent sources close to the exchange told The Associated Press.
What the growers say carries weight. Florida supplies 80 percent of the nation’s domestic fresh tomatoes between Thanksgiving and February. An exchange spokesman, Reggie Brown, called the coalition agreements “un-American,” saying they allowed a third party to set wages.
If, like me, you're thinking at this point that someone needs a primer on antitrust laws, you're right. The article quotes Stephen Ross (Penn State) in stating that:
Several antitrust experts say the growers association may be the one violating antitrust laws by banning its members’ participation. “This exchange is limiting one way in which these growers can compete for the business of these major fast-food contracts,” said Stephen F. Ross, a Pennsylvania State University law professor. "The only antitrust violation I see is the growers' response."
This issue is important, as an industry-wide adoption of the earlier agreement could double wages. But, even that agreement is beginning to fray. Although McDonald's and Taco Bell are still committed to the deal, they are have difficulties in finding growers who will participate. The Coalition isn't backing off of Burger King, however, and I wouldn't count them out yet. Particularly in the highly competitive fast food market, a well-operated PR campaign has the potential to draw blood.
This time at the Red Cross (via New York Times):
Plagued by turmoil at the top, the American Red Cross ousted its president, Mark Everson, on Tuesday for engaging in a ''personal relationship'' with one of his subordinates. He took the challenging job just six months ago . . . .
The Red Cross said its board of governors asked for and received Everson's resignation, effective immediately, after being notified about 10 days ago by a senior executive at the national office about Everson's relationship with a woman on the staff. The woman's name was not released.
''The board acted quickly after learning that Mr. Everson engaged in a personal relationship with a subordinate employee,'' a statement said. ''It concluded that the situation reflected poor judgment on Mr. Everson's part and diminished his ability to lead the organization in the future."
It sounds like the fact that Everson was married with two children, on top of the fact that he was in a relationship with a subordinate, had a lot to do with his ouster.
It should be noted, however, that this was not a sexual harassment situation and from all accounts, was a consensual affair. The Red Cross just did not want as its head person someone who was carrying on adulterous affair with one of his own employees.
One indication that labor is going to play a big role in the coming presidential elections is the amount of time candidates (mostly Democrats) are spending talking to union membership and walking the picket lines (from MSNBC's First Read):
Once again, [John] Edwards joined the striking Writers Guild and other union members in solidarity, after marching with the the WGA members in Burbank earlier this month. Although he spoke for less than four minutes, the union members rallied around the presidential candidate, yelling out encouraging words.
"The truth is, [unions are] crucial for the future of America," Edwards said in New York City's Washington Square Park. "It is why, when I'm president of the United States, when you're out walking the picket line, nobody will be able to walk through that picket line and take your job away from you. You're going to have a president who actually stands with you, when you're working, when you're collectively bargaining, when you're standing up for workers, yourself, and fellow workers across this country."
Before leaving the rally, Edwards had a message for the union members on strike. "I'm proud to be with you; stay strong," he said to an increasing amount of cheers. "Stay strong. Stay together. You're doing the right thing. Continue to do the right thing."
I'm not sure the last time a presidential campaign heard such
strident appropriately enthusiastic, pro-union words from a major candidate, but Edwards is not alone. Both Hillary Clinton and Barack Obama have picked up support from important unions along the way. One senses, of course depending on the Democratic margin in the Senate, that the next few years could be heady times for unions and workers' rights.
The Institute for Research on Labor & Employment Library has posted an online collection of collective bargaining agreements. Hat tip: Carol Furnish.
Perhaps you are not surprised to read this:
With the Kremlin determined to see a high turnout in Sunday's election, many Russians say they are being pressured to vote at work under the watchful eyes of their bosses or risk losing their jobs.
They say they also are being told to provide lists of relatives and friends who will vote for United Russia, the party of President Vladimir Putin.
But would you be surprised that somewhat more subtle tactics are taking place in workplaces in the United States? As documented in my recent paper on workplace captive audience speeches:
For instance, during the last presidential election, the National Association of Manufacturers sought to have employers use their workplaces to hold meetings with their employees to discuss partisan political issues. Employees were urged to act in their employer's best interest by not voting for unacceptable candidates. As one commentator has observed, such political captive audience speeches are highly effective because "[p]eople need their jobs, and many will sacrifice their rights as citizens to continue to provide for themselves and their families. Consequently, an employer that tries to use its financial muscle to control employees' political behavior will often succeed."
It appears from all indications that employers who have traditionally used captive audience meetings in the workplace to fight against union campaigns are increasingly using this tactic in the States to force their political and religious views on employees.
As my paper argues, states should be allowed to pass laws which prohibit employers from forcing employees to listen to employer speech at pain of losing their jobs.
Tuesday, November 27, 2007
Colleen Medill (CM) (Nebraska), one of the preeminent scholars in the field of American employee benefits law, is a sometime guest blogger on these pages. Her thoughts on the LaRue case follow:
Paul’s great summary of yesterday’s oral argument in the LaRue case concerning ERISA claims and remedies was intriguing enough to induce me to read the entire transcript. The tenor of the questions from Chief Justice Roberts (explicit reference to the “deference standard” of Firestone) and Justice Scalia (why not require the claim be first brought under Section 502(a)(1)(B)) suggests that some of the Justices are toying with the idea of requiring that all ERISA claims must be “funneled” first through Section 502(a)(1)(B) as denial of benefits claims. This approach is problematic for multiple reasons.
First, the Firestone decision itself was wrongly decided as a matter of fiduciary law, see John H. Langbein, The Supreme Court Flunks Trusts, 1990 Supreme Ct Rev. 207.
Second, it is well-documented that all fiduciaries are cognizant of, and some intentionally are abusing, the “shelter” provided by the Firestone deferential standard of judicial review in the context of welfare benefit plans, where the standard historically has applied. See John H. Langbein, Trust Law As Regulatory Law: The Unum/Provident Scandal and Judicial Review of Benefit Denials Under ERISA, 101 Nw. Univ. L. Rev.1315 (2007). Does the Supreme Court really want to expand the problem to include 401(k) and other defined contribution plans?
Third, Firestone’s deference standard applies when the trustee has the explicit authority to exercise discretion to interpret the terms of the plan concerning whether or not the participant is entitled to the requested benefit. The federal courts to date have never applied a deferential standard of judicial review (Firestone’s “abuse of discretion” standard) to determine whether the trustee has engaged in a breach of fiduciary duty under Section 404 or 405 of ERISA. Indeed, de novo judicial review of an alleged breach of fiduciary duty was the norm at common law and, until yesterday’s oral argument, believed to be the norm under ERISA.
Some of the Justices appear to be confused on this point because the fiduciary duty to follow the terms of the plan under Section 404(a)(1)(D) sounds a lot like exercising discretionary authority to interpret the terms of the plan, but the two situations are distinctly distinct. Bottom line, in close calls involving interpretation of what benefit the participant is to receive, Firestone deference gives the nod to the fiduciary making the call. Firestone deference does not apply when the fiduciary fails to follow the express terms of the plan (here, executing a trading instruction). See Colleen E. Medill, Resolving the Judicial Paradox of “Equitable” Relief Under ERISA Section 502(a)(3), 39 John Marshall L. Rev. 827, 955 (2007).
Fourth, to follow the Roberts/Scalia logic to its conclusion, if such a prerequisite claim under Section 502(a)(1)(B) against a defined contribution plan succeeds, ERISA itself would prohibit the plan’s trustee from taking assets out of the other participant accounts to restore the benefits due to the plaintiff participant. Once allocated to accounts, those assets represent the “accrued benefit” of each account owner, see ERISA Section 3(23)(B), which cannot be forfeited unless and until the account owner terminates employment without being fully vested under the plan’s vesting schedule, see ERISA Sections 204(a), 204 (b)(2). Cf. ERISA Section 204(h) (prohibiting cutbacks of accrued benefits by plan amendment). Unfortunately, no one could give the Supreme Court a direct, statutory-based reason why Justice Scalia’s hypothetical approach was illegal.
Moreover, ERISA Section 204 is duplicated as Code Section 411, which is a requirement for the plan to remain tax-qualified. Consequently, the Scalia scenario would result in a federal court remedy (“robbing Peter [other participants] to pay Paul [the plaintiff participant]”) that itself disqualifies the plan and results in immediate taxation of the vested accrued benefits for all of the plan’s participants. Hardly the sort of scenario Congress intended to promote retirement income security and encourage employers to sponsor qualified retirement plans. The alternative? The plaintiff participant “wins,” but only gets his money if: (1) the plan itself decides to sue the breaching fiduciary; (2) the plan wins in its lawsuit against the breaching fiduciary; and (3) the breaching fiduciary has the money to pay and does in fact pay. Now we have two drawn-out lawsuits in federal court to resolve what, before yesterday’s oral argument, ERISA experts believed could be resolved directly in a single lawsuit brought under Section 502(a)(2).
hope the Justices carefully think through the Section 502(a)(1)(B) approach and
then jettison it in favor of a “clean” opinion validating the Section 502(a)(2)
claim and saving the more difficult issues surrounding equitable relief under
Section 502(a)(3) for another day. As a
502(a)(2) claim, legal relief is available, and lost appreciation in asset
value is clearly a “loss.” See Donovan
v. Bierwirth, 754 F.2d 1049 (2d Cir. 1985). Although the law professors would love it, the last thing that lower
federal court judges (and ERISA practitioners who are counseling employers)
need in the area of ERISA claims and remedies is more tea-leaf-like dicta to
read, parse, and discern.
Colleen Medill (CM)
According to this recent Harris survey (via CNN.com):
U.S. adults . . . see firefighters, scientists and teachers as the most prestigious occupations while bankers, actors and real estate agents are the least prestigious occupations . . . .
Sixty-one percent of adults consider firefighters to have "very great prestige," making this occupation the most prestigious on the list.
Five other occupations were ranked as having "very great prestige" by over 50 percent of the adults surveyed: Scientists and teachers are considered very prestigious by 54 percent of adults, followed by doctors and military officers, who earn the prestige of 52 percent of Americans, and nurses, whom half of all adults consider very prestigious.
Among the least prestigious occupations are real estate brokers, actors and bankers. Only 5 percent of survey participants ranked real estate brokers as very prestigious; 9 percent gave actors this label, followed by 10 percent for bankers.
Additional highlights: union leaders are ranked by 30% as having hardly any prestige at all and lawyers don't appear to be on the least prestigious list, a victory in itself.
For more information and to see the complete results of the survey, visit http://www.harrisinteractive.com/.
That is the topic of this interesting article in Reish Luftman's ERISA Audit Report.
Here's a sample:
[L]et’s examine generally whether an expense can be paid from plan assets. The
first step is to verify whether the plan - by its written terms - permits the payment of expenses from plan assets. A typical plan expense provision will permit “all reasonable administrative expenses” to be paid from the plan. The quoted language raises the second point in the analysis. That is, is the expense reasonable? If the answer to either one of these questions is no, the plan cannot pay the expense. If, however, the plan document permits the payment of expenses from plan assets and the expense is reasonable, the analysis is still not complete.
The next step in the analysis involves how to categorize the expense. DOL guidance on the subject divides expenses into two types. The first is “settlor expenses,” which must be borne by the employer. In general, settlor expenses include the cost of any services provided to establish, terminate or design the plan. The second category is administrative expenses, which - if they are reasonable under all the relevant facts and circumstances - may be paid from the plan. Administrative expenses include fees and costs associated with (i) amending the plan to keep it in compliance with tax laws, (ii) nondiscrimination testing, (iii) obtaining an IRS determination letter ruling and (iv) providing plan information to participants.
Read more about this complex area of ERISA law at the jump link above.
Monday, November 26, 2007
As Rick pointed out this past weekend, the highly-anticipated ERISA case of LaRue v. DeWolff, Boberg & Assoc. was argued today in front of the Supreme Court. This is a case which will help define a 401(k) pension plan holder's right to sue plan administrators for breach of fiduciary duty. More specifically, the case may shine much needed light on the scope of relief available to employees under Sections 502(a)(2) and 502(a)(3) of ERISA.
Below are my initial thoughts on the oral argument today in the case based upon an analysis of the oral transcript. (Full disclosure: I was one of eleven law professors who signed an amicus brief supporting LaRue's opposition to DeWolff's motion to dismiss. I hope, however, that this fact does not cloud my analysis of the oral argument).
1. Peter Stris, a law professor at Whittier, went first. He put forward his "straightforward" argument: "The plain meaning of 'any losses to the plan' includes any diminution in value of defined contribution plan assets, regardless of the number of participants ultimately affected." FWIW, that sounds right to me.
2. Justices Ginsburg, Roberts, and Scalia pressed Stris on why this suit could not be brought under Section 502(a)(1)(B) as a denial of benefit claim and wondered whether bringing the claim under (a)(2) defeated the claim exhaustion requirements under (a)(1)(B).
3. Justice Alito wonders whether LaRue properly preserved his (a)(2) claim, as the initial complaint was filed only under (a)(3).
4. Justice Scalia poses an interesting question to Stris about whether in a classic (a)(1)(B) case involving denial welfare benefits (e.g., health insurance), there is not a "loss to the plan" when the plan must provide those contested benefits to the beneficiary and "whereupon the plan would have a right of action against the fiduciary, I assume, for the fiduciary's failure to do what he was supposed to." Stris points out, however, that just because (a)(1)(B) may have been one route of proceeding, does not mean he was required to go that route and not bring an (a)(2) claim. I have to say that I am surprised by the amount of time spent on this point as most commentators did not even foresee the (a)(1)(B) angle.
5. Justices Alito and Ginsburg asks whether an (a)(3) finding is necessary if the Court finds for LaRue on the (a)(2) claim. This goes to language in Varity which suggests that recovery under (a)(3) is only "appropriate" if there is not relief available under (a)(1)(B) or (a)(2). Stris responds that since this case was decided by the lower courts at the pleading stage, direction on the (a)(3) claim is also necessary. And under (a)(3), Stris argues that "make whole" relief should be available to LaRue under the equitable theory of surcharge. This move is necessary under ERISA law because since Mertens in 1993 and Great-West Life in 2002, only claims for equitable restitution are available under (a)(3). Consequently, Stris seeks to make the argument that the make-whole remedy for loss of pension assets is really an "equitable claim for surcharge." Only in the world we call ERISA.
6. I have to say that I am shocked that the Court did not spend any time asking Stris whether a loss to an individual account plan is the same as "loss to the plan" under Section 409. Are strict constructionists of ERISA on the Court (Roberts, Scalia, Thomas, Alito, and Kennedy) conceding the argument? If so, this remedial approach to this case strikes one as more in line with the decisions in Varity in 1996 and Harris Trust in 2000.
7. Because the Solicitor General supports LaRue in this case, Matthew Roberts next speaks for the U.S on behalf of LaRue. Although there is some question of who has standing to bring an (a)(2) "loss to the plan" suit, Justice Scalia continues to advance his theory that (a)(1)(B) cases are really against the plan and that is the claim that LaRue should have brought. Here, I think Roberts has the past answer to this theory: "Petitioner's cause of action here arises under (a)(2) because he is seeking relief for the plan not relief from the plan."
8. Chief Justice Roberts continues to hammer away at his point that the "plan" is not attached to the pleadings, so how can their be a breach of fiduciary duty. Both Stris and Roberts explain that the case was decided on the pleadings so they have not yet had time to adduce those facts and in any event, the summary plan description (SPD) is attached to the complaint. Roberts points out that the SPD does not say administrators have to follow the investment directions of participants. Roberts also points out that, "the case comes to the Court on the assumption that there is a fiduciary breach."
9. Tom Gies of Crowell & Moring (Disclosure: I was at one time a legal assistant at CM) argues for DeWolff and advances a structural argument, suggesting that a reading of (a)(2) that allows individual 401(k) account holders to sue for losses to the plan is inconsistent with the remedial structure of ERISA. This tactic relies on ERISA as a "comprehensive reticulated statute."
10. Gies also believes that Russell (1985), not allowing compensatory and punitive damages under (a)(2), is applicable here because LaRue is basically seeking money damages. Justice Souter (speaking for the first time) and Justice Ginsburg (two of the remdialists) don't appear convinced by this argument and seem to be believe (a)(2) is the only vehicle by which LaRue can get his pension money back.
11. Gies resurrects the Scalia (a)(1)(B) theory, but seems unable to explain to Justice Souter, after a long dialogue, how LaRue could receive his pension money from the plan without "rob[bing] Peter to pay Paul."
12. Justice Breyer finally speaks (leaving Stevens, Kennedy, and Thomas as non-speakers thus far) and is apparently exasperated by Gies' argument that there cannot be an individual claim under (a)(2) because it is not for "losses to the plan" as a whole: Gies: "Well, we think that (a)(2), properly read, does not permit an individual claim . . . . Breyer: "Well, why? Why? That's the question, it seems to me, in the case. Why?"
13. Justice Breyer then goes on to use a hypothetical about a trustee who runs off to Martinique with 500 different diamonds: "Why isn't it available under (a)(2)? In both cases, the trustee took 500 diamonds that belonged to the plan and went to Martinique. Now, if you can sue him when the plans are all put in one big safe deposit box with the diamonds, why can't you sue him when they're put in 500 small safe deposit boxes?" Why indeed. Gies explains because there has not be a "loss to the plan" in an individual situation ("The words "losses to the plan" connotes something collective."), but even Justice Alito appears skeptical. And Gies must concede to Justice Souter that, "there can be no loss to the plan which is not a loss to an individual account, can there be?" Justice Stevens weighs in toward the end of the argument and seems to be siding with Ginsburg, Souter, and Breyer (I guess no surprise there, but I would be interested in hearing Stevens' thoughts on what he meant in his decision in Russell back in 1985 when he was then part of the strict constructionist block).
14. Per normal, Justice Scalia gets most of the laughs: "You're telling me it depends on how big the diamond is and -- and what kind of a breach it was. How can we write an opinion like that? (Laughter.)" Whoever knew this case would come down to the size of some hypothetical diamond stowed away on Martinique?
15. Unsurprisingly, and inevitably, Gies makes a floodgate of litigation argument about allowing individual claims under (a)(2), but does not seem to have a good answer to Justice Ginsburg's questions about what LaRue's remedy would be under (a)(1)(B) or (a)(3) without the (a)(2) remedy for breach of fiduciary duty.
16. Gies also maintains, under (a)(3), that this is not an equitable claim under surcharge, but one for unrecoverable compensatory damages under ERISA.
In all, I am fairly confident (hopefully, not famous last words) that LaRue will win his case under Section 502(a)(2); that is, be able to proceed with his case for breach of fiduciary duty against the fiduciaries in their personal capacities because of failure to follow investment instructions. I don't believe the Court will give any guidance on (a)(3) since it is not necessary to its holding and there may be some discussion as to the role of (a)(1)(B) in these cases, especially if Scalia files a dissent.
No guts, no glory, I predict a 6-3 decision for LaRue, with perhaps three separate opinions: Souter for the majority, Scalia, joined by Thomas, advancing an a(1)(B) alternative, and perhaps Roberts believing that the claim can not be brought without the plan being attached to the complaint or Alito, pressing the (a)(2) waiver argument. Of course, it is hard to predict Kennedy's vote because he did not speak, but as with many controversial cases, his vote will be key.