In Howell v. Motorola, Inc., 2011 WL 183966 (7th Cir. 2011), the Seventh Circuit affirmed the district court's finding that a group of 401(k) plan participants failed to establish that Motorola breached its fiduciary duty. The plaintiffs alleged that the plan fiduciaries breached their duties by continuing to make Motorola stock available for investment by plan participants during a stock price decline. The court stated that periodic stock price declines are insufficient to support a claim of breach of fiduciary duty by plan fiduciaries. The court noted that there was no evidence suggesting that Motorola's stock had become so risky that it needed to be withdrawn.
The Seventh Circuit also considered whether the protections under ERISA section 404(c) apply to an employer's investment fund selection for its participant-directed 401(k) plan. ERISA section 404(c) provides fiduciary protection for participant-directed investment choices if certain design and disclosure requirements are met. In Howell, the Seventh Circuit noted that the selection of plan investment options and the decision to continue offering a particular investment are fiduciary acts that ERISA 404(c) does not protect. This position is consistent with the DOL's position as to whether ERISA 404(c) protection is available for the selection of investment alternatives made available to participants.