I've blogged about LaRue, pending before the Supreme Court, on other occasions. This morning was the oral argument in the case. I've received reports from a couple of folks who were at the hearing this morning and can provide some insight into how the Court may be leaning. The thought is that the court will be split on whether a remedy will be provided for LaRue under 29 U.S.C. Sec. 1132(a)(2) but the tenor of the questions suggests the Court will interpret the language of the statute broadly enough to allow recovery by LaRue under the facts of this case. There was the feeling that Justice Scalia was angling for whether a remedy was available under 29 U.S.C. Sec. 1132(a)(1)(B), recovery under the terms of the plan. The Court did not seem particularly interested in whether 29 U.S.C. Sec. 1132(a)(3) provided a remedy and my sources doubt the Court is inclined to get into the scope of relief under that section of ERISA al all. Of course, this is all reading tea leaves. A transcript of the hearing should be available in the next day or two and I'll provide a link as soon as I know about it. UPDATE: More background on the LaRue case from Bloomberg. UPDATE II: The official transcript of the oral argument is here. UPDATE III: Here are a couple of links reporting on the arguments before the court. Bloomberg and Linda Greenhouse at the New York Times.
3 Comments
Thanks Curtis. I, like you, am surprised that the Court did not spend more time on the loss-to-the-plan vs. individual losses issue. They did reach it, eventually, in the diamonds metaphor that Breyer eventually got to. But I too was surprised at the discussion of (a)(1)(B). That seemed to be a diversion. And Roger, I was also amazed about the time for the transcript. I didn't expect it until today or tomorrow.
by Brian S. King November 17, 2008 at 01:47 PM
Brian, thanks for getting this posted, as it made interesting reading last night. I am very surprised the Court did not address the key issue - whether a loss to an individual account plan is the same as "loss to the plan" under Section 409. And, after seeing all the time spent by several Justices surmising whether a loss to the plan can be remedied under Section 502(a)(1)(B), I'm glad to know the Court has a passel of bright law clerks. Curtis Curtis L. Kennedy Attorney-at-law 8405 E. Princeton Ave. Denver, CO 80237-1741 Tele: 303-770-0440 Fax: 303-843-0360 [email protected] http://www.uswestretiree.org/legal2.htm
by Curtis L. Kennedy November 17, 2008 at 01:47 PM
I am amazed at how quickly the transcript came out for this. Thanks for blogging this, Brian.
by Roger Baron November 17, 2008 at 01:47 PM
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