Pension Protection Act Blog

The U.S. Supreme Court today heard oral argument in LaRue v. DeWolff, Boberg & Assoc. At the heart of it, this case is about a failure to follow investment instructions, and a participant seeking the lost profits which he may have received if his investment instructions were followed.

The transcript of the argument, available here, is a quick and interesting read. Minor points made during the argument include Justice Roberts questioning the fact that the plan document was not included as part of the record, only the summary plan description was included in the record, and the ultimate pension geek quote from Judge Scalia, who said:

I really get confused with you people who work with ERISA all the time…

Of course, I have taken this quote completely out of context. Look for it on the coffee mugs in my office holiday baskets this year.

There has been a lot of good commentary written in the last couple of days about LaRue. Ultimately, the real meaning of LaRue will lie in the Court’s opinion on how they decide to move the ERISA boundaries with their decision. Closely watching this case are the potential 401(k) class action attorneys because it is possible that the Court’s decision in LaRue could connect the dots between hypothetical loss and recovery from plan sponsors.

Paul M. Secunda, of the Workplace Prof blog, has written an excellent summary of the LaRue case to this point. He is handicapping a vote of 6-3 in favor of LaRue. He may be correct after last year’s decision of 9-0 in Mid-Atlantic Medical Services v. Sereboff, which also addressed remedies under ERISA code section 502(a)(3).

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