Liability For Breach of Fiduciary Responsibilities

I think the only reason we are having this conference really is because of the topic that we are going to discuss now, and that is the suits against your clients. If it were not for that, we could have all of these other wonderful provisions, and this would be an empty room. Basically, there are criminal penalties attached to this law, which will be discussed by Miss Ray, and I am not going to go into them, other than to say generally there is no criminal penalty, but and she will tell you what the but's are. See sections 411(b);512. There is a tax liability attached to the law, and that has been, I think, thoroughly beaten to the ground by all the other speakers. What we are concerned most about in this law, of course, is the civil suit under section 502(a)(l), and this presents quite a few interesting problems, because the law is designed so that there are several parties who can bring suits: the Secretary of Labor, participants, beneficiaries, and fiduciaries. Each of the sections lists those eligible. For instance, to recover benefits, that can be only the participants and the beneficiaries. On the other hand, for breach of fiduciary duties, that can be the Secretary of Labor, the participants, the beneficiaries, the fiduciary. Keep in mind that each of the individual subsections in section 502, does tell you who can bring suit. The major problem here, of course, is that these are written in terms of or. The Secretary of Labor or the participants, or the beneficiaries, or the fiduciary. There is no provision giving exclusive control to any one individual group, so that you might see multiple lawsuits. This is not unusual. It happens in other areas of law. In the Civil Rights Act, this is getting to be very, very common. I would say as a practical matter that if in a type of suit, the Secretary of Labor was involved, that obviously the court would design it so that he was the predominant party. Of the types of actions that can be brought under section 502 (a) ( 1 ) (BO , you can bring an action to recover benefits, to clarify rights to future benefits, breaches of fiduciary duties, obviously, to enjoin enforce ERISA, and to enjoin enforce provisions of the plan. Now, these are each separate acts,