One of Blawgletter’s favorite legal journalists, Linda Greenhouse, writes today about the oral argument yesterday in LaRue v. DeWolff, Boberg & Assocs., Inc., No. 06-856 (U.S.).  For background, see "Reviving ERISA:  Justices Hear Argument in Key Pension Rights Case".

Ms. Greenhouse reports:

Several justices said it would not be easy to draw a distinction between individual and collective losses.  Justice Stephen G. Breyer offered a hypothetical example.  Suppose, he said, that a 401(k) plan consisted of 1,000 diamonds, and a corrupt trustee ran off to Martinique with half of them.  Why should it matter, Justice Breyer asked [defense lawyer Thomas P.] Gies, whether the diamonds came from one central safe deposit box or 500 individual ones labeled with participants’ names?

Ms. Greenhouse also notes that Justice Ruth Bader Ginsburg cast asparagus on a defense argument, stating that "it’s too late" for a 401(k) plan participant to get "equitable" relief once the fiduciary has lost or stolen the participant’s funds.

The WSJ likewise frets that a Court majority "seemed uncomfortable with barring employees from suing" and that justices who expressed concerns similar to Justice Breyer’s included not only Justice Ginsburg but also Justices David Souter, Antonin Scalia, and Samuel Alito.

You can read the transcript of the entire oral argument in LaRue here.  Hint:  For those anxious to get to the good stuff, the fun really starts on page 30.

We’ve scanned the transcript and count at least six votes for reversal of the Fourth Circuit’s pro-defense decision — Breyer, Ginsburg, Souter, Scalia, Alito, and Stevens.  The Chief Justice seemed, in our view, to pick nits, suggesting reluctance to hold for the employee/plant participant. 

Justice Clarence Thomas, per usual, made no comments and asked no questions.  Justice Anthony Kennedy also said nothing.

Paul Secunda at Workplace Prof Blog summarizes the whole argument and reaches the same conclusion we did:  that LaRue wins in a 6-3 vote.

Barry Barnett

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