The U.S. District Court fo the District of New Hampshire appears to be in line with the Department of Labor's position on the extent of protection offered by ERISA section 404(c). In a case against Tyco for offering company stock as an investment option in the plan, the district court held that Tyco could not used 404(c) as a defense for choosing poor investment options for the plan. The court in Tyco gave deference to the DOL's position.
(In re Tyco International Ltd. Multidistrict Litigation, D.N.H., No. 02-1335-PB)
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