Airline employees brought class action against the company alleging breach of fiduciary duty by retaining airline stock as a 401(k) plan investment option and seeking recovery after stock was cancelled without distribution when the airline filed for Bankruptcy. The U.S. Fourth Circuit Court of Appeal affirmed the trial court’s refusal to admit a mathematical model proffered by plaintiff’s expert (which apparently predicted a high probability of imminent bankruptcy) which was “not generally relied upon by fiduciaries determining the bankruptcy risk of an investment in an individual security.” With respect to the breach of loyalty claims, the court noted that there is no per se prohibition where an officer, employee, agent or other representative of the plan sponsor also serves as a plan fiduciary, even if that fiduciary purchases company securities on behalf of that plan, and found no other indicators of a breach of loyalty – e.g. “that high-ranking company officials sold company stock while using the Company Fund to purchase more shares, or that the Company Fund was being used for the purpose of propping up the stock price in the market.” Rejecting claims of imprudence, the court noted that the company offered twelve diversified and less risky alternatives for investment, allowed participants to transfer freely, warned participants of the risks in plan documents, and sought and obtained two outside legal opinions regarding the continuation of company stock as an investment option. See DiFelice v. U.S. Airways, No.06-1892, 2007 WL 2192896 (4th Cir. Aug. 1, 2007).
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