To Sue or Not To Sue, Oh Yeah?

[Andy the Actuary]

As the US District Court for the Western District of Washington recently stated in Palmason_v_Weyerhaeuser_Company

"In other words, a participant can not sue just because someone working for the defined benefit plan erred, that error has to actually cause the promised benefits of that participant to decrease."

Misconduct by the administrators of a defined benefit plan will generally have no effect on an individual’s payments under the plan. In order to establish the requisite personal injury to pursue an award of monetary damages, the participants in such a plan must show that the alleged breaches of fiduciary duty created an appreciable risk that the defined benefits would not be paid. In other words, plaintiffs must show that the challenged investment policy and other fiduciary breaches “create[d] or enhance[d] the risk of default by the entire plan.”

Thus, if an actuary makes an egregious error that upon termination is found to have resulted in a significant underfunding and the Plan is terminated under a distress termination, the fact that a participant may forego part of his benefit or option to lump sum may give him cause against the actuary. One would think that a miscalculation of an AFTAP leading to lump sum restrictions applying would also be cause.

It sounds like no foul, not suit. That is, if benefits aren't affected but the employer may have to put in unanticipated dollars, then that's no cause for employees to sue. Of course, if employer fails to fund, then there could be cause.

[chc93]

When I briefly read an article on that case, I thought one comment was that while a participant cannot sue the actuary, the employer surely can sue the actuary for errors.

[jpod]

Assuming it's an ERISA (Title I) plan, unless a participant succeeds in proving that the actuary was acting as a plan fiduciary, I don't see how the participant would have standing to sue. Did the court explain this?