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Court to Consider Investor's 401(k) Suit
Lawyer Blog News | 2007/11/26 16:41
James LaRue says he lost $150,000 when his instructions to his employer on where to invest money in his retirement plan were ignored. Now the Supreme Court will decide whether a federal pension-protection law gives LaRue the right to sue to recover his losses. Arguments in the case, which has far-reaching consequences, were scheduled for Monday.

LaRue, who used to work at a management consulting firm, is among the 42 million workers who contributed to a 401(k) retirement plan. At issue in LaRue's case are the limits to lawsuits under the Employee Retirement Income Security Act. It regulates private-sector retirement plans holding over $5.5 trillion in assets, including $2 trillion in an estimated quarter of a million 401(k) plans across the country.

Unlike traditional pension plans, participants in 401(k) plans — named after a section in tax law — do not know how much money they will receive in retirement. It depends on how well their chosen investments have performed.

ERISA was designed to safeguard pension fund money from misappropriation. The 1974 law followed the failure of some companies to pay promised pensions and extensive looting of some pension and welfare funds at companies and labor unions.

Class-action suits filed under the law over the past decade have targeted Enron, WorldCom and other major companies tainted by scandal.

From a legal standpoint, it is less clear what action an individual account holder can take against a retirement plan when the conduct at issue is less than criminal.

LaRue says that in 2000 and 2001 he requested changes in his investment allocations in mutual funds that were available to participants in his company's 401(k) plan. He says the requests were not honored.

"I wanted to sell stocks and move to cash because I thought the market would head down. I was right," LaRue said in a telephone interview. "I didn't find out that the plan had not executed my transactions until 10 months later. They had a substandard reporting system. I left the firm. I asked them again to make the change, and they still didn't do it. I don't know why."

The Bush administration, siding with LaRue, says an appeals court ruling against him would leave participants in "the most common form of pension plan who have been injured by a breach of fiduciary duty without a meaningful remedy from any court."

LaRue sued in 2004, saying he had tried to avoid going to court and instead sought to reach a settlement with his former employers. He was unsuccessful, as it turned out.

"We had already been through one lawsuit over stock in the company, which I won," said LaRue. "Even though I prevailed, it was not pleasant. I didn't want to go through it again."

Business groups assign a different motive to the long delay in filing the second suit, saying LaRue was waiting to see how the market performed. If the value of his investment went up, he made money. If it went down, he would head to court.

LaRue, according to the American Council of Life Insurers, was "squarely in the proverbial catbird seat. ... He could not lose. ... Granting LaRue relief in this case would encourage other plan participants to do the same."

In papers in the case, the council said denying LaRue the right to sue for damages would ensure that a plan participant who claims his investment directions were not followed would act promptly, seeking a court order if necessary.

When ERISA was passed, decisions on where to invest money were out of workers' hands. Under 401(k) and other types of plans, employees make the choice.

"If they're going to shift the responsibility for a plan from a company to the individual, then they should listen to our instructions," LaRue said.

ERISA pre-empts state laws relating to employee benefit plans, meaning LaRue cannot use them to sue, and therein lies his problem.

Besides protecting workers, ERISA was aimed at encouraging employers to set up retirement plans and in doing so, Congress limited the right to sue. Just where the line is drawn is the question in LaRue's suit, though the Supreme Court in past decisions on ERISA has drawn the line in favor of employers.

The business world says allowing cases like LaRue's could lead to a wave of suits without merit.

"There is a cost associated with any expansion of remedies," the U.S. Chamber of Commerce said in a filing in the Supreme Court supporting LaRue's former employer.

Opening up plan administrators to liability will increase the cost of running ERISA plans, result in fewer being established or reduce the level of benefits, the business group says.

The case is LaRue v. DeWolff, Boberg & Associates Inc; and DeWolff, Boberg & Associates Inc., Employees' Savings Plan, 06-856.



Court Declines Mich. Faith-Based Case
Lawyer Blog News | 2007/11/26 13:41
The Supreme Court on Monday declined to get involved in a dispute between Michigan officials and a faith-based program for troubled youths. The Michigan Family Independence Agency imposed a moratorium on Teen Ranch Inc. from participating in a government-financed program for abused, neglected and delinquent children, saying the ranch coerced the 11- to 17-year-olds into religious activities.

Teen Ranch denies that it forced the young people to attend religious services, saying that it offers alternatives such as academic study time, writing letters home and recreational time in a gymnasium.

In asking the justices to take the case, lawyers for Teen Ranch say the 6th U.S. Circuit Court of Appeals in Cincinnati incorrectly expanded a 2003 Supreme Court ruling to cover Teen Ranch. In the 4-year-old ruling, the Supreme Court barred state scholarships for students studying to enter the clergy.

The appeals court decision enables bureaucrats "to discriminate against religious organizations at will," lawyers for Teen Ranch said in asking the justices to take the case.



Family of alleged Bulger victim to get day in court
Lawyer Blog News | 2007/11/26 09:54

Another family of a man allegedly ordered killed by Whitey Bulger may be able to win damages against the FBI without going through a trial.

On February 19, U.S. District Court Judge Reginald Lindsay will consider a motion for summary judgment by the widow of Richard Castucci.

Bulger allegedly had the 48-year-old Castucci killed in 1976 because he told the FBI about the hiding place of 2 fellow gangsters. Bulger allegedly learned about Castucci from rogue FBI agent John Connolly.

Lindsay scheduled the Castucci hearing last week, right after he ruled the federal government liable for the 1982 murders of Edward Brian Halloran and Michael Donahue.

Halloran was allegedly murdered by Bulger after Connolly told him Halloran was going to implicate him in a murder. Donahue was an innocent bystander.



Maryland Police/Sheriff Investigate Taser Death
Lawyer Blog News | 2007/11/19 17:43
Frederick law enforcement agencies are conducting dual investigations into the death of a 20-year-old man who died Sunday after a Frederick County Sheriff’s deputy used a Taser to subdue him.

According Cpl. Jennifer Bailey, spokeswoman for the Sheriff’s Office, a deputy responded to the 7000 block of Gresham Court East, Frederick, at 4:54 a.m. Sunday for the report of a fight in progress.

The deputy — whose identity has not been released — found four people fighting, and deployed a Taser, striking Jarrel Gray of Frederick.

Gray fell to the ground, and he received medical attention. He was transported to Frederick Memorial Hospital, where he was later pronounced dead.

The deputy who fired the Taser has been placed on administrative leave with pay during the investigation, which is normal procedure.

On WFMD Monday morning, Sheriff Chuck Jenkins (R) said two investigations are under way: The Frederick Police Department is investigating Gray’s death, while the Sheriff’s Office is investigating the use of the Taser by one of its deputies.

According to Frederick County Circuit Court records, Gray was serving two years and six months of supervised probation stemming from charges of second-degree assault and resisting arrest in November 2006.

This incident comes almost two weeks after a Frederick County Sheriff’s deputy used a Taser in his role as a school resource officer at Tuscarora High School.

In that incident, an 18-year-old student was not injured as he resisted a deputy’s command to step away as he broke up a fight at the school.


Texas Judge Issues Injunction Against Tribe
Lawyer Blog News | 2007/11/19 17:40
 A Texas judge grants a permanent injunction against the Wichita-based Kaweah Indian Nation and its self-proclaimed chief, Malcomb Webber.

The unrecognized tribe is accused of defrauding illegal immigrants by falsely claiming they could get Social Security numbers if they bought tribal memberships.

The Texas attorney general's office had filed a lawsuit accusing Webber and his group of violating the Texas Deceptive Trade Practices Act.

The lawsuit is still pending against two other defendants. And a spokesman for the Texas attorney general's office said a ruling on any penalties and restitution will be made after the entire case is settled.

A court-appointed attorney for Webber has said Webber was a victim of renegade underlings.


US Supreme Court blocks execution of child killer
Lawyer Blog News | 2007/11/16 15:22
The U.S. Supreme Court halted the execution of convicted child killer Mark Dean Schwab on Thursday, hours before he was scheduled to die. The move by the high court was widely expected as it considers the appeals of two Kentucky inmates challenging the same lethal three-drug combination used in Florida. The court has blocked executions in three other states since accepting the Kentucky case Sept. 25.

The state Attorney General Bill McCollum's office said it would not challenge the court's decision.

Vicki Rios-Martinez, the victim's mother, was unhappy with the court ruling.

"This is like 16 years ago. Today was the same kind of emotions, the same kind of chaos, the same kind of roller coaster ride," she said. "The system has disappointed us over and over and over again."

Schwab was sentenced to death for the murder of 11-year-old Junny Rios-Martinez.

In March 1991, the month Schwab was released from prison on a sexual assault sentence, a newspaper published a picture of Junny for winning a kite contest.

He gained the confidence of Junny's family, claiming he was with the newspaper and was writing an article on the boy.

On April 18, he called Junny's school and pretended to be Junny's father and asked that the boy meet him after school. Two days later, Schwab called his aunt in Ohio and claimed that someone named Donald had made him kidnap and rape the boy.

He was later arrested and told police where he left Junny's body — in a footlocker in a rural part of Brevard County.

Schwab's execution was to be the first in Florida since the botched execution of Angel Diaz on Dec. 13. It took 34 minutes for Diaz to die — twice as long as normal — because the guards pushed the needles through his veins.



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