Roundup at the LaRue Corral

More on LaRue in the wake of Monday’s oral argument, and the inevitable commentary from all sides - including this one - on Tuesday:

• My last two posts on the LaRue case, here on the briefing and here on the oral argument, assumed a certain prior level of understanding on the part of the reader as to the issues and statutory provisions involved in the case. Workplace Prof has a more soup to nuts review of those, in the wake of the argument, here, which is also cross-posted here.

Susan Mangiero was taken by the discussion in the oral argument of what powers may or may not have been identified in the summary plan description appended to LaRue’s complaint. I took this discussion by the Justices to be part of an inquiry into what are the constraining parameters of a claim such as the one brought by LaRue. As I have discussed before, I think the Court will allow this type of claim to be actionable, primarily because the law of ERISA is going to have to evolve to fit the brave new retirement world in which defined contribution plans, rather than defined benefit plans, rule, and establishing a right of remedy for the type of error alleged by LaRue is a necessary part of that evolution. However, I don’t expect, both for reasons related to the historically limited remedial reach of ERISA and the philosophy of various justices, that theory of liability and right of recovery to be unconstrained or left as simple as error by fiduciary plus loss to one account =s liability. Rather, although the Court may leave the parameters of the theory of liability to future cases for development, I expect the Court to at least indicate in dicta certain restraints and constraints on such claims. In this way, I think the eventual opinion will essentially walk the line between the concern of the respondent and its supporting amici that allowing claims of this nature will excessively increase the cost of providing plans to employees and the concern voiced by LaRue’s counsel that employees must be allowed a remedy for this kind of error.

• And here’s the New York Times’ highly readable account of the oral argument, by the excellent Linda Greenhouse.

• Finally for today, on a lighter and less substantive note, here’s the WSJ Law Blog’s post on the case, with a nice little profile of Tom Gies, who represented the respondent.

Written By:Dan Van Bogaert, J.D. On December 1, 2007 3:12 PM

Mr. Stris stated in the beginning of oral arguments, “..if there is a conflict between the summary plan description and the plan, the summary plan description governs.” Although Chief Justice Roberts did not immediately challenge this beginning statement, just the opposite is true. The legal Plan document controls in instances where there is a conflict with the language in the SPD. Chief Justice Roberts, however, later stated on page 25 of oral arguments, “we need to know what the plan provides before we can decide.” Ultimately, the terms of the Plan relative to participant investment elections - and who is responsible for execution of the election - will be determinative.

Dan Van Bogaert, J.D.
ERISA Comliance
2351 Sunset Boulevard, Suite 170
Rocklin, Ca 95765