Can a plan fiduciary who has been deemed liable under a plan seek either contribution or indemnification from a co-fiduciary of the plan under ERISA? The question was thoroughly discussed in the recent Opinion and Order issued by the federal district court in Houston approving the $85 million partial settlement on behalf of the Enron participants. The Court pointed out that there is no express right to contribution or indemnity under ERISA in contrast with securities laws where there is an express right. (See fn. 15 of the opinion.) However, after discussing how the federal Circuit Courts of Appeals and the district courts that have addressed the issue are split, the Court then adopted the Ninth Circuit view, stating as follows:
After reviewing the law, this Court is persuaded by the reasoning of courts agreeing with the Ninth Circuit’s approach and by the Supreme Court’s consistent reiteration of the exclusivity of the express remedies available under ERISA’s civil enforcement section, and concludes that a remedy for indemnification or contribution among plan fiduciaries is not available under ERISA.
The Court agreed with the view that ERISA is a “comprehensive and intricate statute into which Congress could have injected provisions for indemnification or contribution among fiduciaries but chose not to” and went on to state that “ERISA’s silence about contribution indicates an intent not to recognize remedies not expressly incorporated.”
For those who want to delve further into the issue, try:
ERISA Remedies: Background Materials and Update by Maria O’Brien Hylton and Dana M. Muir (from BNA.com).
Fiduciary Litigation under ERISA by Robert Eccles (also from BNA.com).