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Numerous lawsuits have been brought under ERISA over the last decade, against the fiduciaries and sponsors of 401(k) and other defined contribution retirement plans. Part One of this three-part article discussed many of these lawsuits, which have been pled as class actions on behalf of all or many participants of the plan. Part Two discussed the implications of behavioral finance for ERISA litigation, provision of financial services with choice, and loss calculations. Part Three herein discusses damages calculations.
Damages Calculations with Allegations of
Misstatements or Omissions
As discussed in Part One, many ERISA lawsuits over employer stock involve alleged misstatements or omissions by the employer or its officers. This implies that the price of the stock is allegedly inflated. In such cases, the but-for world might involve either investment in an alternative stock or investment in a hypothetical version of the employer stock without inflation. The latter, hypothetical option can be approximated based on estimates of the alleged stock price inflation. Approaches used in shareholder class actions, where inflation is estimated from stock price reactions to corrective disclosures, using event study techniques, could be applied to ERISA cases. Analysis in these cases is generally based on the assumption that the stock trades in an efficient market and, therefore, rapidly reflects any publicly disclosed information.
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