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Author: TheBadger Big red star, 1000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: of 19483  
Subject: Re: Employer Did Not Invest Contributions Date: 2/23/2000 6:37 PM
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You are treading a very fine line here. At first, by the title of the post I was fearful that the trustees had run off with the money --- that's grand theft and trustees generally go to jail for that kind of stuff.

However, here we have a case where the trustees seem to be either lazy or ultra-conservative. If you can document the meeting between the investment advisor & the trustees and then the trustees ignored the advisor; you might have the beginnings of a case for "breach of fiduciary duty". A trustee is responsible to guard & safekeep the assets of the trust for the benefit of the beneficiaries. A trustee breaches his or her fiduciary duty when: 1. The trustee places personal interest in front of his primary duty; 2. Makes obvious bad investment decisions that any other prudent man would not make; and the list goes on.

In any event, there is a fine line between a trustee committing a "breach" versus sinply being lazy & stupid. No one goes to jail for being dumb.

I am sure your thinking that even a bad set of mutual fund choices would have been better than assets sitting in a savings account for the last two years. Probably so, however, in order to really pursue this further you need to sit down with an ERISA attorney and obtain his or her counsel. If you have a case; pursue it. If the trustees are CPA's; they certainly have E&O coverage (which will not apply in this case); however, it raises the likeyhood that they have purchased some "fiduciary liability" insurance. Bottom line, you can threaten to sue & the insurance carrier will step in to defend and potentially pay the trust monies.

Hope This Helps.

TheBadger


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