Law, College of


Date of this Version



Published in University of Michigan Journal of Law Reform 34:3 (Spring, 2001). Copyright (c) 2001 University of Michigan Law School


Argues for a judicial interpretation of ERISA that encourages employers to select a default investment option for automatically enrolled participants that is broadly diversified in the equity markets, rather than a low-earning money market fund. Another potential conflict of interest arises when an employer includes company stock as an investment option, which can lead to potential breaches of the employer's duty of loyalty under ERISA. The question presented to the federal court is whether Employer has satisfied its fiduciary duty of prudence by selecting company stock as an investment option. Policy Analysis: Employer's Duty of Prudence in Selecting Company Stock as an Investment Option - The same list of questions presented after the first hypothetical generally are applicable to the second hypothetical. Inclusion of company stock as an investment option creates the potential for undue influence by the employer when participants' votes are weighted according to their ownership of company stock. Certain additional rules apply to plans that offer company stock as an investment option. First, company stock offered as an investment option must be publicly traded. It is not unreasonable for employers who do decide to include company stock as an investment option to expect that they will be held accountable for this fiduciary decision.

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