This Article examines the seeming irreconcilable conflict faced by the pension plan fiduciary, who is a corporate insider, to disclose or not to disclose material, inside information to plan participants, who would use the information to divest investments in company stock, without disclosing the same information to persons on the other side of these trades. The Article begins with a general discussion of the regulation of trade in securities and the history of the insider trading laws under the Securities Exchange Act of 1934. Part III discusses the soundness of the prohibition against insider trading. Part IV explains the duties imposed on pension plan fiduciaries and how they appear to conflict with the corporate fiduciary's duty not to trade based upon non-public, inside information. Part V discusses the varying positions taken by the courts that have considered the issue. Finally, Part VI explains ways of reconciling the two duties.
Shelby D. Green, To Disclose or Not to Disclose? That Is the Question for the Corporate Fiduciary Who Is Also A Pension Plan Fiduciary Under ERISA: Resolving the Conflict of Duty, 9 U. Pa. J. Lab. & Emp. L. 831 (2007), available at http://digitalcommons.pace.edu/lawfaculty/299/.