26, 2002) established a new legal theory permitting workers to recover for losses in their 401(k) retirement plans caused by investment in their employers' stock.

The securities laws provide limited help in the case of 401(k) plans because investors can only recover for shares that they purchased during the period when the stock was artificially inflated by fraud; they cannot recover for losses to stocks that they purchased before the fraud began, but held during the period of artificial inflation.

Moreover, suits on behalf of a retirement plan need only prove breach of fiduciary duty and are not required to meet the more difficult fraud standard.

Giving the judgment of the Court, Judge William Alsup held that the plaintiff's complaint adequately alleged that the defendants acted in a fiduciary capacity and had breached that duty by their imprudent investment in company stock.

The Vivien decision provided the legal framework for many similar suits filed by employees of companies such as AOL Time Warner, Reliant Energy, Cardinal Health, Tyco International, Merck, and Dell.