The LaRue Decision Shakes Up Qualified Plan Fiduciaries discusses the impact that LaRue v. DeWolff, Boberg & Assoc. Inc., No. 06-856 (Feb. 20, 2008) may have on fiduciary risk:
- Number of lawsuits – While it is possible that individual lawsuits could increase, in many cases the amount of damages at the participant level may be too small to justify taking action. Some experts think that this ruling may make it more difficult to proceed with a class action suit.
- Stock drop litigation – The most significant impact may be in the number of Stock Drop Litigation suits. While most claims would apply to the plan as a whole, there are ESOP-specific scenarios that could create litigation by individual participants.
- Plan design litigation – The article suggests that plan design decisions could create exposure for individual litigation:
For example, while we don't think that administrative errors automatically create fiduciary issues, we do think that independent design decisions might.
Take, for example, the practice of converting terminated participants' ESOP accounts from stock to cash after termination but before distribution. If the stock later goes up considerably in value, could the individual terminees sue the fiduciaries? We think they might be able to do so.
How can one defend against this sort of assault? Well, this is a great example of the real advantage of writing into your document exactly what you intend to do. If the plan provides that terminees' accounts will be treated in this way, and the fact is disclosed in the summary plan description as well, we believe that the exposure is reduced to very little, if any.
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