Abstract
I. INTRODUCTION
In 1974, Congress sought to encourage a form of a retirement fund known as an employee stock ownership plan (“ESOP”). The statutory mandates of these plans are outlined in the Employee Retirement Income Security Act (“ERISA”). ESOPs are invested in stock of the company in which the employee works. In this way, ESOP planners’ (“plan fiduciaries”) obligations are necessarily unique. Whereas most fiduciaries are required to prudently diversify investments to protect their beneficiaries, ESOP planners are not similarly mandated. Further, Congress allows ESOP planners to concurrently be officers of the corporation in which the stock was invested. This exception makes it much more likely that a plan fiduciary will, at some point, have access to insider information pertinent to the fund. Issues arise when a plan fiduciary is also an officer of the corporation that the ESOP is primarily invested in. If that corporate officer/plan fiduciary knows the corporation is engaged in fraud, courts have struggled to determine what duties the plan fiduciary acquires relative to ESOP plan beneficiaries. Plaintiffs have suggested the plan fiduciary must divest the fund, diversify the fund, and/or disclose the fraud.