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New Developments in the Presumption of Prudence Under ERISA: A Dramatic Increase in Liability Exposure Hangs on the Difference Between "Shall" and "May"

06/12/2013

Recent decisions out of the Second and Ninth Circuits have increased the liability exposure of plan fiduciaries under the Employee Retirement Income Security Act (ERISA) where the retirement plan gives employees an option to invest in the employer's stock. If the plan permits, but does not require, that this investment option be available, plan fiduciaries can be held liable if they fail to withdraw the option once they become aware, or should be aware, that the value of the employer's stock may be artificially inflated.

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