The Cost of Loyalty

Even now, employees still invest their 401(k)s in company shares. And they still sue if the stock goes south.

For Merck & Co., one trigger was the withdrawal of Vioxx from the market. For Marsh & McLennan Cos., it was news that New York State Attorney General Eliot Spitzer had launched an investigation into alleged bid-rigging. And for Delta Air Lines Inc., it was simply investors’ belief that management had mismanaged the company.

The result for all three companies, however, was the same: after their stock price fell precipitously, employees hit them with class-action lawsuits citing breach of fiduciary duty related to company share-purchase provisions in their 401(k) plans.

Arguably, these legal situations never should have arisen. Ever since the Enron debacle, in which employee retirement accounts collectively lost more than $1 billion, workers have been warned about the downside of putting 401(k) money solely in their company’s stock. But, according to Hewitt Associates, the practice is alive and well. In fact, some 84 percent of the 220 employers Hewitt surveyed that offer company stock in their 401(k) plans permitted employees to invest their contributions in it. And on average, employees who held that stock had 41 percent of their balances solely in those shares.

That lack of diversification, says H. Douglas Hinson, a partner at Atlanta-based Alston & Bird LLP, has led to some 50 class-action suits seeking retribution for 401(k) losses suffered since the stock-market bubble burst. Settlement amounts are enough to give companies pause. Last December, Lucent paid $69 million in a 401(k) class-action case. In May, Enron reached the biggest settlement so far, giving $85 million to current and former employees.

And the trend shows no sign of abating, even though the Employee Retirement Income Security Act (ERISA), which regulates 401(k) plans, neither prohibits the offering of company stock in plans nor requires employers to mandate diversification. The challenge for companies, says Jeffrey D. DuFour, CEO of Tillit Group LLP, a Princeton, New Jersey-based fiduciary consulting firm, is to “better match up [employees'] expectations with reality.” Otherwise, this may be only the first wave of legal actions. While many of the current cases reflect “bad behavior” on a corporate level, he explains, “when baby boomers figure out that they don’t have enough money to retire, those cases may instead be tied simply to how well participants’ portfolios do,” regardless of how much employers’ stock is in their plans.

Fiduciary or Shareholder Guardian?

One reason for the suits is that there is no legal precedent to control them. “These cases are so new that there’s not a lot of law developed yet,” says Hinson, now engaged by Mirant Corp. and BellSouth Corp., both Atlanta-based, to fight 401(k) class-action suits.

Such suits in general haven’t resulted in any court trials, or even summary judgments, in the past few years. Most of the legal rulings handed down since Enron’s collapse have addressed motions to dismiss at the district-court level, and only two have gone on to appeal. In those cases — Wright v. Oregon Metallurgical Corp. and LaLonde v. Textron Inc. — federal circuit courts split over whether to allow the litigation to proceed. And neither decision determined what should trigger a fiduciary’s duty to stop investing employees’ assets in company stock.

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