"Whether or not you think Moench and its progeny came out the right way, there is a significant flaw in the [Third Circuit's] rationale. The [Court] arguably got off on the right foot by looking to [the employer's] intent in establishing the ESOP, but, in divining that intent, it treated ERISA/Code-mandated boilerplate language in the plan (investing 'primarily in employer securities') as evidence that this objective was ascendant over the plan's ERISA/Code-mandated raison d'etre viz. providing retirement benefits to the participants. Whether the 'settlor's intent' can be discerned by looking to a few isolated sentences in a complex ESOP document that describe this subsidiary goal (because it has to) while ignoring the vast bulk of the document's provisions that describe the terms of conditions for payment of future retirement benefits in detail, seems dubious to say the least."  MORE >>