Court Turns Down Participant Claim for Account Restoration

June 21, 2006 ( - The 4th US Circuit Court of Appeals has affirmed a lower court's ruling that a participant's request for restoration of his 401(k) plan account due to failure of plan administrators to follow his investment instructions is not a remedy under the Employee Retirement Income Security Act (ERISA).

In its opinion, the appellate court says James LaRue did not prove unjust enrichment, unlawful possession, or self-dealing on the part of DeWolff, BoBerg and Associates Inc., and the remedy he was seeking falls outside the scope of “equitable relief” authorized by ERISA.

Citing other court cases, the court pointed out that “equitable relief” under ERISA calls for restoring losses to a plan as a whole and not to the sole benefit of one participant.

Rejecting LaRue’s argument that the relief he was seeking falls under “other appropriate equitable relief” that ERISA authorizes, the court determined that the assets he was requesting to make his account whole did not fall under the definition of equitable relief. Citing cases considered by the Supreme Court, the appellate court pointed out that the high court said the funds used to provide relief must be in the possession of the defendant (See High Court Approves ERISA’s Equitable Relief Provisions ).

According to the opinion, the “Plaintiff does not allege that funds owed to him are in defendants’ possession, but instead that these funds never materialized at all.”

LaRue sued DeWolff, Boberg for breach of fiduciary duty, saying the company never made the investment changes to his 401(k) plan that he directed in 2001 and 2002. He alleged that he lost approximately $150,000 in interest due to his instructions not being followed. His complaint sought to have his account made whole.

The opinion in LaRue v. DeWolff, Boberg and Associates Inc. is here .