:: Office of Solicitor General Files Amicus Briefs On Scope of Relief And Standing Issues
Though Congress may one day take the remedial step plaintiff desires, it has not yet done so. It is not difficult to imagine why. In crafting ERISA, Congress sought a careful balance between the goals of “ensuring fair and prompt enforcement of rights under a plan†on the one hand and “encourag [ing] … the creation of such plans†on the other. Tullis v. UMB Bank, N.A., 464 F.Supp.2d 725 (N.D.Ohio) (November 21, 2006)
The Department of Labor Office of the Solicitor has posted the amicus brief filed in Tullis v. UMB Bank, N.A. wherein the district court, citing the Fourth Circuit’s opinion in LaRue v. DeWolff, Boberg & Assocs., 450 F.3d 570, 572 (4th Cir.2006), took a similarly narrow reading of 29 U.S.C. § 1132(a)(3).
Under the facts in Tullis, the defined contribution plan participants were left without recourse against the investment advisor which was bankrupt. Due to the malfeasance of the investment firm, the participants’ accounts were substantially depleted. The district court held that the plaintiffs could not sue the bank trustee which they alleged knew or should have known of the fraudulent activity.
The district court stated:
Congress’s decision to omit such liability hardly leaves a plan participant or beneficiary in plaintiff’s position without recourse. He could, for example, seek an injunction compelling compliance with his investment instructions, see 29 U.S.C. § 1132(a)(3), or, under appropriate circumstances, bring suit on the plan’s behalf to remove the fiduciary, see 29 U.S.C. § 1109(a). In Congress’s view, such alternative remedies are sufficient to keep fiduciaries from breaches of fiduciary duty that result in no benefit whatsoever to themselves.
We possess no authority “to adjust the balance … that the text adopted by Congress has struck.†Mertens, 508 U.S. at 263, 113 S.Ct. 2063. LaRue, 450 F.3d 570, 577-78 (4th Cir.2006). In addition to the remedies mentioned in LaRue, Plaintiffs’ recourse seems to be against Davis and CCC, against whom an ultimate recovery may well be unlikely because they have no assets. However, this Court has “no authority to adjust†the legislation.
The brief can be read here.
The Solicitor General also posted a brief filed in Evans v. Akers, 466 F.Supp.2d 371 (D.Mass.) (December 06, 2006). In that case, the district court held that former employees who did not intend to work and who did not lose their jobs as result of fiduciaries’ alleged misfeasance did not have standing as participants based on their employment status.
Both issues are before the United States Supreme Court in the LaRue case.
See also - :: Standing Issue Now Before U.S. Supreme Court
