Friday, December 28, 2007
Tom Gies of Crowell & Moring, who argued for DeWolff, Boberg in the pending ERISA 401(k) mega-case, has this opinion piece in the December 14th issue of the Los Angeles Daily Journal.
As I read it, Tom's basic point is that fiduciaries make mistakes all the time and we should not allow litigation expense in this area to make affordable 401(k) plans less available to other employees because of these innocent mistakes.
My counter is that these mistakes are also called breaches of fiduciary duty under ERISA and Section 502(a)(2) clearly provides a remedy. If Congress believes that this will cause less employers to offer 401(k)'s, they can change the law. Isn't that the textualist argument that less progressive Members of the Court usually rely on?
Somehow, if ERISA is amended at all in the next decade, my guess is that it won't be in the direction of making ERISA even harder to sue under.
I also still think that Tom's client is likely to lose this ERISA case as discussed in my previous analysis of the oral argument.