A large 401(k) plan uses Fidelity's daily valuation platform. Participants can access their accounts through a Fidelity telephone number or their website. A participant who terminated in a prior year and is eligible for a distribution has been trying to "time the market" and take a distribution when his account balance is high. We made the decision to request a distribution on a particular date but was unable to do so because the plan sponsor's records did not initially show that he had a termination date. By the time things were sorted out, about two weeks later, the participant received his entire vested account balance (which, by then, was about $5,000 less than it had been two weeks earlier). You guessed it, the participant now wants the plan to compensate him for the $5,000 he "lost" due to the delay in his distribution.

Has anyone seen any articles or case law on this issue (or have any opinions--informed or otherwise)? There is nothing in the plan document or SPD that suggests a participant will receive the value of his vested account balance as of any particular date.

Thanks for any guidance.

I'd say that's a permissible time frame for a distribution. If he wanted to lock in a value he should have converted to cash himself; it's self-directed right up to the point of distribution.

Since participant had access to fidelity's online access he should have seen he didn't have termination date. Onus is on hime,

Thanks for your comments--that was my inclination too.

Has the participant made a written request/demand that could arguably trigger the ERISA claims review procedures? If so, the Plan Administrator should follow those procedures. I'm not saying the claim isn't bogus, I am just suggesting that you address and deny the claim in accordance with the procedures

ERISA does not allow a recovery by a participant for lost profits because such claims are for money damages and ERISA only allows recovery for benefits. See Goeres v. Charles Schwab Co, 2004 WL 2203474. If he files a complaint treat it as a claim for benefits and deny the claim under the plans's claim procedure.

And watch the LaRue case.

And what is the basis for his claim under ERISA 502(2) and (a)(3)? Please explain. Inquiring minds want to know how money damages are available under a claim for equity. Don't you think the Supremes took the case to bury the theory that money damages are a form of equitable relief. If "other equitable relief" under ERISA 502(a)(3) includes money damages why did Congress limit recovery for claims under ERISA to equitable relief.

No need for me to explain. We'll let the Supremes do that!