Vindicating Retirees

Through ERISA, Congress prioritized the competent management of retirement plans held in trust for Americans, codifying strict fiduciary obligations and providing broad relief to those injured by fiduciaries failing to execute those duties. Specifically, ERISA provides retirement plan participants and beneficiaries, along with plans themselves and the Secretary of Labor, an inherent, substantive right to seek plan-wide monetary and equitable redress for injuries resulting from fiduciary mismanagement. Today, retirement plans hold more than $10 trillion and constitute a substantial portion of the funds Americans will subsist on in retirement. Despite their vital import, particularly for women and members of minority communities, funds are not always well managed. The forum in which a breaching fiduciary is held accountable and the relief available often turn on an arbitration agreement, and the results of efforts to compel arbitration are inconsistent. These divergent outcomes starkly contrast with Congress’s intent to develop uniform results protecting plans, participants, and beneficiaries. This Article contributes by evaluating whether plan participants who assert statutory fiduciary breach claims seeking plan-wide relief can be compelled to arbitration. By surveying the circuit split on this question and the bases for varying outcomes of such disputes, this Article also reveals that, despite scholarly consensus that the Supreme Court gutted the effective vindication doctrine, lower courts regularly apply the doctrine to these disputes. This Article further contributes by identifying pleading, contractual, strategic, and policy considerations affecting the outcomes of motions to compel arbitration of ERISA fiduciary breach claims. It concludes that substantive rights ERISA grants cannot be prospectively waived via an arbitration agreement. The Supreme Court should resolve the circuit split by reinvigorating and applying the effective vindication doctrine. Failing that, Congress should enact the Employee and Retiree Access to Justice Act.