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MOENCH v. ROBERTSON

No. 94-5637.

62 F.3d 553 (1995)

Charles MOENCH in his own right and on behalf of those similarly situated, and on behalf of the Statewide Bancorp Employee Stock Option Plan v. Joseph W. ROBERTSON, Richard D. Sutton, Joseph P. Iaria, Frank J. Ewart, Jack Meyers, Leonard G. Lomell, John C. Fellows, Jr., Raymond A. Taylor, Estate of Frank Ewart, John Ewart, Administrator, Charles Moench, in his own right and on behalf of all those similarly situated, Appellant.

United States Court of Appeals, Third Circuit.

Decided August 10, 1995.

Sur Petition for Rehearing September 12, 1995.

Attorney(s) appearing for the Case

Philip Stephen Fuoco (argued), Joseph A. Osefchen, Haddonfield, NJ, Fredric J. Gross, Mount Ephraim, NJ, for appellant.

Christopher J. Carey (argued), Lisa W. Santola, Tompkins, McGuire & Wachenfeld, Newark, NJ, for appellees.

Thomas S. Williamson, Jr., Sol. of Labor, Marc I. Machiz, Associate Sol., Karen L. Handorf, Counsel for Special Litigation, Eric G. Serron, Wayne R. Berry, Trial Attys., U.S. Dept. of Labor, Office of the Sol., Plan Benefits Sec. Div., Washington, DC, for Amicus Curiae The Secretary of Labor.

John F. Zabriskie, Raymond T. Goetz, Hopkins & Sutter, Chicago, IL, for Amicus Curiae F.D.I.C. as Receiver for First Nat. Bank of Toms River.

Before MANSMANN, GREENBERG, and SAROKIN, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

This case requires us to decide the following difficult question: To what extent may fiduciaries of Employee Stock Ownership Plans (ESOPs) be held liable under the Employee Retirement Income Security Act (ERISA) for investing solely in employer common stock, when both Congress and the terms of the ESOP provide that the primary purpose of the plan is to invest in the employer's securities. The district court...

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