Trevino on ERISA Litigation

Erisa Misrepresentation and Nondisclosure Claims: Securities Litigation Under the Guise of Erisa?, by Clovis Trevino, Geogetown University Law Center, was recently posted on SSRN.  Here is the abstract:

As a result of recent corporate scandals and dramatic market downturns, many employees whose defined contribution plans were heavily invested in employer stock have experienced substantial losses in their anticipated retirement savings. To recover for their losses, plan participants have filed a number of lawsuits under the Employee Retirement Income Security Act of 1974 ("ERISA") alleging that plan fiduciaries made misrepresentations or failed to disclose material information about the suitability of investing in the company stock. These controversial suits are derivative or companion cases to securities class actions based on the same allegations of misrepresentations or nondisclosures. Even though there is a significant overlap between the ERISA and the securities suit, the procedural, remedial, and substantive rules governing the two actions are substantially different. By juxtaposing these rules, this Article examines whether ERISA fiduciary misrepresentation and nondisclosure claims amount to securities litigation in disguise; and if so, whether these claims should be allowed to proceed in the absence of the procedural safeguards imposed by the Private Securities Litigation Reform Act ("PSLRA").