Despite this past summers Supreme Court decision in Fifth Third Bancorp v. Dudenhoeffer, which found that fiduciaries of employee stock ownership plans are subject to the same duty of prudence that applies to ERISA fiduciaries in general, companies with ESOPs and stock purchase plans are seeing an increase in plan assets and are using the plans as a retention tool.
In June, the nations highest court ruled in a unanimous decision that ESOP fiduciaries are not entitled to any special presumption of prudence. Rather they are subject to the same duty of prudence that applies to ERISA fiduciaries in general, wrote Justice Stephen Breyer.
