Boss botched your 401(k)? Sue ’em.

November 27, 2007, 3:06 AM UTC

The Supreme Court heard a fascinating case Monday in which an employee sued his company because it failed to execute his requests that his 401(k) money be moved out of stocks and into cash at the top of the last bubble, in 2000. Like all Supreme Court cases, this is one is complex, and the Court’s issue isn’t whether the former management consultant, James LaRue, is due any money from his former employer, DeWolff Boberg & Associates. Instead, the Supremes will decide if an employee has a right to sue a 401(k) operator, in this case LaRue’s former employer, under the laws that govern pension funds.

The facts are interesting, of course. LaRue says he requested twice that his holdings be moved. Then he didn’t check back for 10 months, by which time his account’s value had plummeted.

This doesn’t seem like a 401(k) or pension-fund case to me. If a broker of any kind doesn’t execute a trade, common sense would suggest the broker must pay for the screwup.

A federal appeals court, which affirmed a lower-court decision, making way for LaRue’s appeal to the highest court in the land, made a curious argument in giving LaRue the Heisman. Instead of suing his employer under ERISA laws, which govern pensions, wrote Judge James Harvie Wilkinson III, “he could, for example, seek an injunction compelling compliance with his investment instructions, … or, under appropriate circumstances, bring suit on the plan’s behalf to remove the fiduciary.”

Judge, how in the world would compelling the 401(k) administrator to comply with his instructions after the damage was done or removing the administrator get LaRue his money back?