Pension Protection Act Blog

The U.S. Supreme Court has issued a decision in LaRue v. DeWolff, Boberg & Assoc. Inc., No. 06-856 (Feb. 20, 2008). (Hat tip to SCOTUSblog.)

Numerous articles will be written in the next couple of days and months about the meaning and impact of LaRue. More immediate concerns raised by LaRue are what type of plan language changes will be needed to accomodate the decision, including changes to Summary Plan Descriptions (SPDs) and administrative forms. In a relatively short opinion - just over 7 pages - Justice Stevens delivered the majority opinion of the Court. The Court held:

“Held: Although §502(a)(2) does not provide a remedy for individual injuries distinct from plan injuries, it does authorize recovery for fiduciary breaches that impair the value of plan assets in a participant’s individual account. Section 502(a)(2) provides for suits to enforce the liability-creating provisions of §409, concerning breaches of fiduciary duties that harm plans. The principal statutory duties imposed by §409 relate to the proper management, administration, and investment of plan assets, with an eye toward ensuring that the benefits authorized by the plan are ultimately paid to plan participants. The misconduct that petitioner alleges falls squarely within that category, unlike the misconduct in Russell. There, the plaintiff received all of the benefits to which she was contractually entitled, but sought consequential damages arising from a delay in the processing of her claim. Russell’s emphasis on protecting the “entire plan” reflects the fact that the disability plan in Russell, as well as the typical pension plan at that time, promised participants a fixed benefit. Misconduct by such a plan’s administrators will not affect an individual’s entitlement to a defined benefit unless it creates or enhances the risk of default by the entire plan. For defined contribution plans, however, fiduciary misconduct need not threaten the entire plan’s solvency to reduce benefits below the amount that participants would otherwise receive. Whether a fiduciary breach diminishes plan assets payable to all participants or only to particular individuals, it creates the kind of harms that concerned §409’s draftsmen. Thus, Russell’s “entire plan” references, which accurately reflect §409’s operation in the defined benefit context, are beside the point in the defined contribution context. Pp. 4–8.”

I think the heart of Justice Stevens’ opinion is the last three paragraphs, which state:

“For defined contribution plans, however, fiduciary misconduct need not threaten the solvency of the entire plan to reduce benefits below the amount that participants would otherwise receive. Whether a fiduciary breach diminishes plan assets payable to all participants and beneficiaries, or only to persons tied to particular individual accounts, it creates the kind of harms that concerned the draftsmen of §409. Consequently, our references to the “entire plan” in Russell, which accurately reflect the operation of §409 in the defined benefit context, are beside the point in the defined contribution context.

Other sections of ERISA confirm that the “entire plan” language from Russell, which appears nowhere in §409 or §502(a)(2), does not apply to defined contribution plans. Most significant is §404(c), which exempts fiduciaries from liability for losses caused by participants’ exercise of control over assets in their individual accounts. See also 29 CFR §2550.404c–1 (2007). This provision would serve no real purpose if, as respondents argue, fiduciaries never had any liability for losses in an individual account.

We therefore hold that although §502(a)(2) does not provide a remedy for individual injuries distinct from plan injuries, that provision does authorize recovery for fiduciary breaches that impair the value of plan assets in a participant’s individual account. Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.”

The reference to Russell is interesting as Massachusetts Mut. Life Ins. Co v. Russell, 473 U.S. 134 (1985), was also written by Justice Stevens. (Hat tip to Justia.)

In a concurring opinion joined by Justice Kennedy, Justice Roberts continues his flirtation with ERISA section 502(a)(1)(B). Justice Roberts writes:

“It is at least arguable that a claim of this nature properly lies only under section 502(a)(1)(B) of ERISA. That provision allows a plan participant or beneficiary “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 29 U. S. C. §1132(a)(1)(B). It is difficult to imagine a more accurate description of LaRue’s claim. And in fact claimants have filed suit under §502(a)(1)(B) alleging similar benefit denials in violation of plan terms. See, e.g., Hess v. Reg-Ellen Machine Tool Corp., 423 F. 3d 653, 657 (CA7 2005) (allegation made under §502(a)(1)(B) that a plan administrator wrongfully denied instruction to move retirement funds from employer’s stock to a diversified investment account).”

Much will also be written about footnote 6, regarding who is a plan participant. The Court states this in footnote 6:

“6 After our grant of certiorari respondents filed a motion to dismiss the writ, contending that the case is moot because petitioner is no longer a participant in the Plan. While his withdrawal of funds from the Plan may have relevance to the proceedings on remand, we denied their motion because the case is not moot. A plan “participant,” as defined by §3(7) of ERISA, 29 U. S. C. §1002(7), may include a former employee with a colorable claim for benefits. See, e.g., Harzewski v. Guidant Corp., 489 F. 3d 799 (CA7 2007).”

Additional Information:

Paul M. Secunda of the Workplace Prof blog provides a good discussion of LaRue in Reflections on the LaRue Decision.

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