Kevin Comer v. Micor, Inc. Kenneth C. Smith Elliot H. Wagner Barbara Arbucci, and Salomon Smith Barney, Inc.

We consider whether an ERISA-plan participant can be compelled to arbitrate an ERISA claim brought on behalf of the plan where the plan — but not the participant — has signed an arbitration agreement.

Facts

Kevin Comer was a participant in two ERISA plans operated by Micor, Inc. The plan trustees retained Salomon Smith Barney, Inc. (Smith Barney) to provide investment advice. The relationship between Smith Barney and the trustees is governed by investment management agreements. The agreements contain arbitration clauses, pursuant to which “all claims or controversies” between the trustees and Smith Barney “concerning or arising from” any of the trustees’ accounts managed by Smith Barney must be submitted to binding arbitration.

From 1999 through 2002, Smith Barney allegedly concentrated the plans’ assets in high-tech and telecom stocks. Even after the bubble burst in early 2000, Smith Barney allegedly maintained its concentrated positions. The plans suffered heavy investment losses.

Comer sued Smith Barney under the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1461 (ERISA), for breach of fiduciary duty. See id. §§ 1104(a)(1)(A)©, 1109(a), 1132(a)(2). As…