Eye Witness Report on LaRue Oral Arguments

Just got this email from Marc DeBofsky (ERISA case law wizard and CE's Benefits Litigation professor) and thought I'd pass it along:

From a friend of mine –
Just got back from the oral argument in LaRue [v. DeWolff, Boberg & Associates]
Court asked lots of questions whether the claim should be brought under A(1)(b) versus (a).

Section 502(a)3 was barely discussed and I would doubt that the court will reach that issue at all.

Prediction -- a win under [502](a)2. Votes - 5-4 or 6-3. Kennedy asked no questions.

Anybody else see the show? Any predictions, eye-witness or otherwise, feel free to leave in the comments.

For all the discrimination lawyers out there, LaRue is the ERISA case asking whether individual plaintiffs should be allowed to recover money they would have gained if the 401(k) plan administrators had followed their investment instructions properly. LaRue lost pretty big when his retirement wasn't invested according to his specs.

If you're thinking anything like "well, of course they can, why would congress pass a law to protect people where plaintiffs can't recover under common law theories..." let me just stop you right there. You are entering a world of pain. Just stop. Don't look up the annotated statute or try and find a treatise or anything. Ignorance is bliss, I promise you.