larue and its implications march 25, 2008 © 2008 crowell & moring llp – all rights reserved

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LaRue and Its Implications March 25, 2008 © 2008 Crowell & Moring LLP – All Rights Reserved

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Page 1: LaRue and Its Implications March 25, 2008 © 2008 Crowell & Moring LLP – All Rights Reserved

LaRue and Its Implications

March 25, 2008

© 2008 Crowell & Moring LLP – All Rights Reserved

Page 2: LaRue and Its Implications March 25, 2008 © 2008 Crowell & Moring LLP – All Rights Reserved

Introduction

Welcome!

Your Panel:

– Thomas P. Gies

– William J. Flanagan

– Karen Handorf

– Jane Foster

Housekeeping

Page 3: LaRue and Its Implications March 25, 2008 © 2008 Crowell & Moring LLP – All Rights Reserved

LaRue v. DBA- Background

The Complaint:

– Alleged failure to follow investment instructions

– Pled a violation of ERISA § 502(a)(3)

– Sought lost profits in the form of ‘make whole’ relief

Motion for Judgment on the Pleadings

– Application of Mertens and lower court authority

Page 4: LaRue and Its Implications March 25, 2008 © 2008 Crowell & Moring LLP – All Rights Reserved

Procedural History

Motion for judgment on pleadings granted

Fourth Circuit appeal- § 502(a)(2) claim emerges

Fourth Circuit affirms decision for DBA

DOL amicus brief

Decision affirmed on rehearing

Supreme Court granted certiorari

Page 5: LaRue and Its Implications March 25, 2008 © 2008 Crowell & Moring LLP – All Rights Reserved

The High Court’s Decision

Three separate opinions

Holding: Participant in an individual account plan may bring a personal § 502(a)(2) claim

Did not reach § 502(a)(3) question

Page 6: LaRue and Its Implications March 25, 2008 © 2008 Crowell & Moring LLP – All Rights Reserved

After LaRue: § 502(a)(2)

A new category of claims

Expanded remedies available in cases of administrative errors and other honest mistakes

How to measure damages

Page 7: LaRue and Its Implications March 25, 2008 © 2008 Crowell & Moring LLP – All Rights Reserved

The § 502(a)(1)(B) Questions

Chief Justice Roberts’ Concurrence

Exhaustion required?

Potential conflict with other ERISA civil enforcement provisions

Standard of Review

Implications of Met Life v. Green

Other issues

Page 8: LaRue and Its Implications March 25, 2008 © 2008 Crowell & Moring LLP – All Rights Reserved

Other Litigation Issues

Who is a fiduciary:

– Service providers

– The ministerial exception

Standing – former employees

Jury trials?

Impact on class certification issues

Where does the plan get the money?

Page 9: LaRue and Its Implications March 25, 2008 © 2008 Crowell & Moring LLP – All Rights Reserved

Implications for § 502(a)(3) Litigation

“Appropriate equitable relief” after LaRue

Impact on Varity

Supreme Court looks forward:

– Goeres v. Charles Schwab and Co. Inc.

– Amschwand v. Spherion Corp.

Page 10: LaRue and Its Implications March 25, 2008 © 2008 Crowell & Moring LLP – All Rights Reserved

Implications On Other ERISA Plans

Other individual account plans

Welfare plans

– Self-funded

– Insured arrangements

Page 11: LaRue and Its Implications March 25, 2008 © 2008 Crowell & Moring LLP – All Rights Reserved

Conclusion

Concluding Comments

Questions