Blawgletter’s bestest buddy from Boston Latin taught us a little joke — "semper ubi sub ubi".  Semper means always, ubi means where, and sub means under.  Hence:  Always where under where.  Get it?

Sub silentio signifies "under silence".  So our title above means to convey that the Sixth Circuit today decided an ERISA question now pending before the Supreme Court but didn’t note the question’s pendency.

The issue, as we have reported, concerns standing under ERISA to sue on behalf of a pension plan.  Section 502(a)(2) of the statute provides that plan beneficiaries, among others, may bring such a suit; but some defendants have persuaded a few courts that the section doesn’t mean what it says.  Au contraire.  The wrongdoing, they contended, must affect all plan participants and beneficiaries in pretty much the exact same way before 502(a)(2) applies.  The Supreme Court heard argument in the case last month.  LaRue v. DeWolff, Boberg & Assocs., Inc., No. 06-856 (U.S.).

Today’s Sixth Circuit decision rejected the defense argument.  The panel said:

To hold that plaintiffs are barred from seeking relief pursuant to § 502(a)(2) merely because they may derive an indirect benefit from relief going to a plan would have the effect of precluding the vast majority of § 502(a)(2) suits.  Such a rule would prevent all beneficiaries aside from those lacking any financial interest in a plan from bringing a § 502(a)(2) action.

Because the district court held otherwise, the court reversed the summary judgment for defendants and remanded for further proceedings.  Pfahler v. Nat’l Latex Products Co., Nos. 06-3677 & 06-3678 (6th Cir. Dec. 14, 2007).

We expect the same result in LaRue.

Barry Barnett

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