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The Supreme Court’s decision Feb. 20 in LaRue v. DeWolff, Boberg & Associates was touted as a big win for employees dissatisfied with how their companies are managing their 401(k)s. The ruling’s interpretation of the Employee Retirement Income Security Act seems to open the door to a torrent of suits by employees claiming breach of fiduciary duties by their employers. But a concurring opinion by Chief Justice John Roberts Jr. is leading company counsel to say, “Not so fast.” Roberts, joined by Justice Anthony Kennedy, said employee complaints like the one in the case might be more appropriately treated as claims for benefits under another section of ERISA. That section calls for administrative appeals before suits can be launched and gives administrators more breathing room in investment decisions. Bragging rights for the Roberts road map for employers go to the ERISA Industry Committee, whose brief, written by John Vine of Covington & Burling, spotlighted the alternative that Roberts picked up on. Roberts cited Vine’s brief. In an interview Vine seemed pleased that Roberts found the brief “somewhat persuasive,” adding modestly that Roberts could have come up with the idea on his own.
Tony Mauro can be contacted at [email protected].

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