Scalia: What’s done meanwhile? He came in right at the bottom and a week later, it had gone up 30 points.
Mr. Gies: And we think Congress…
Scalia: — no remedy?

To me, it seemed obvious from the entire Court’s discussion that they are not overly interested in ERISA cases and are tired of the flaw that Congress left, either accidentally or purposely, when dealing with individual claims.

Essentially, Congress stripped the Court of any power to deal with such cases by not explicitly providing remedies for such claims. If the Court sees it as I do, they may be inclined to settle on §502(a)(2) as the individual remedy provision for 401(k) plans. This issue will continue to rise to the Court if they do not act upon it.

I believe that it will be a 9 – 0 decision in favor of LaRue. While Justice Scalia and CJ Roberts were very determined in their questioning on the a(1) alternative, I do believe that ultimately Justice Scalia was convinced that it would do great harm to ERISA to try to judicially construct some “substantial harm to the Plan” test as a condition precedent to the right of a plan participant to bring a claim against a defaulting fiduciary.

I do think Peter adquately addressed the fact that it would be futile to require a participant to first bring a 1(a) claim since the Plan does not have the assets and it is the fiduciary who has defaulted.

In my opinion Peter did a magnificent job.

Disclosure: I have a case of a participant whose account was decimated by the Trustee’s breach of fiduciary duty, the outcome of which may be dependent on the decision.

Perhaps … “so how can there be a breach of fiduciary duty” … was intended.

I know RICO bred some special ad hoc pleading requirements, but generally if Congress wants to dictate how to plead a case, it knows how to write legislation to make it happen.

CJ Roberts seems generally to be technically proficient in procedural matters.

I would be surprised if he writes an opinion suggesting Congress intended different pleading requirements in its “comprehensive reticulated statute” without expressly articulating it.