They say that April showers bring May flowers, but there were no flowers for ERISA plan sponsors and fiduciaries on May 1 when the Second Circuit held, in a ruling that provoked a vigorous dissenting opinion, that an ERISA...more
A recent Ninth Circuit decision has generated considerable controversy amongst employee benefits practitioners by holding that plan fiduciaries engaged in prohibited transactions when they amended the plan’s existing...more
9/22/2023
/ 401k ,
Benefit Plan Sponsors ,
Breach of Duty ,
Class Action ,
Compensation ,
Employee Benefits ,
Employee Retirement Income Security Act (ERISA) ,
Fiduciary Duty ,
Investment Adviser ,
Real Party in Interest ,
Recordkeeping Requirements ,
Service Agreements
We have previously blogged on the flurry of class action lawsuits challenging 401(k) plan investments in the BlackRock LifePath Index Target Date Funds. District courts around the country—seven of them in total—have granted...more
In a case of first impression in the Tenth Circuit, the Court recently joined the chorus of circuit courts in holding that a 401(k) plan participant alleging excessive investment management or recordkeeping fees must assert a...more
The filing of a new 401(k) plan “excessive fee” or “investment underperformance” complaint is hardly “news” these days given the proliferation of suits that have been filed over the past several years. In fact, hardly a week...more
The Seventh Circuit recently provided a ray of sunshine in what has largely been a gloomy stretch for plan sponsors and fiduciaries defending ERISA breach of fiduciary duty claims based on allegedly excessive investment and...more
9/8/2022
/ 401k ,
Benefit Plan Sponsors ,
Breach of Duty ,
Class Action ,
Dismissals ,
Employee Retirement Income Security Act (ERISA) ,
Fees ,
Fiduciary Duty ,
Hughes v. Northwestern University ,
Motion for Summary Judgment ,
SCOTUS
Since the Supreme Court’s ruling in Fifth Third Bancorp v. Dudenhoeffer, courts around the country have overwhelmingly rejected ERISA fiduciary-breach claims by 401(k) plan participants seeking relief related to investments...more
In April, we wrote here about the discouraging trend of opinions allowing commonly asserted breach of fiduciary duty claims in 401(k) and 403(b) plan investment litigation to survive motions to dismiss. While it may be too...more
7/6/2022
/ 401k ,
403(b) Plans ,
Breach of Duty ,
Employee Benefits ,
Employee Retirement Income Security Act (ERISA) ,
Fiduciary Duty ,
Hughes v. Northwestern University ,
Investment Management ,
Management Fees ,
Motion to Dismiss ,
Retirement Plan
Albert Einstein is famously credited with saying, "Insanity is doing the same thing over and over and expecting different results." This adage comes to mind as defense counsel continue to resort to the same strategies for...more
4/28/2022
/ 401k ,
403(b) Plans ,
Compensation & Benefits ,
Defense Strategies ,
Employee Benefits ,
Employee Retirement Income Security Act (ERISA) ,
Excessive Fees ,
Fiduciary Duty ,
Plausibility Standard ,
Retirement Plan ,
Share Classes
On Friday, for the second week in a row, the Ninth Circuit reversed dismissal of a 401(k) plan excessive fee litigation challenging the offering of retail share classes of mutual funds instead of cheaper institutional share...more
4/19/2022
/ 401k ,
Dismissals ,
Employee Benefits ,
Excessive Fees ,
Financial Services Industry ,
Investment Adviser ,
Mutual Funds ,
Retirement Plan ,
Reversal ,
Share Classes ,
Trader Joes
On Friday, the Ninth Circuit became the first circuit court to rule in a 401(k) plan fee and investment litigation following the Supreme Court’s January 2022 decision in Hughes v. Northwestern University, 142 S. Ct. 737...more
4/12/2022
/ 401k ,
Breach of Duty ,
Employee Benefits ,
Fees ,
Fiduciary Duty ,
Investment Management ,
Motion to Dismiss ,
Mutual Funds ,
Retirement Plan ,
Salesforce ,
Share Classes
A South Carolina federal district court denied plaintiffs’ demand for a jury trial in an ERISA fiduciary-breach action. The court held that, because federal courts in the Fourth Circuit and elsewhere have consistently held...more
On April 1, 2021, the Ninth Circuit became the third circuit court to conclude that a forum-selection clause in an ERISA 401(k) plan is enforceable. The Ninth Circuit thus denied a petition for mandamus seeking to overturn a...more
4/7/2021
/ 401k ,
Breach of Duty ,
Corporate Counsel ,
Duty of Loyalty ,
Duty of Prudence ,
Employee Benefits ,
Employee Retirement Income Security Act (ERISA) ,
Fiduciary Duty ,
Forum Selection ,
Prohibited Transactions ,
Putative Class Actions ,
Retirement Plan ,
Venue ,
Writ of Mandamus
On October 30, 2020, the U.S. Department of Labor (the “DOL”) issued a final rule on factors for selecting plan investments, which restricts “do-good” or “ESG” investing. In response to public comments, the final rule rolls...more
Among the many claims brought by plaintiffs challenging investment offerings in defined contribution plans is the claim that plans should offer stable value funds in lieu of more conservative capital preservation funds, such...more
8/18/2020
/ 401k ,
American Airlines ,
Benefit Plan Sponsors ,
Breach of Duty ,
Defined Contribution Plans ,
Duty of Loyalty ,
Duty of Prudence ,
Employee Benefits ,
Employee Retirement Income Security Act (ERISA) ,
Fiduciary Duty ,
Motion for Summary Judgment ,
Popular ,
Prohibited Transactions ,
Retirement Plan ,
Standing
A federal district court in Illinois recently dismissed “excessive fee” and “imprudent investment” claims against the plan fiduciaries of the CareerBuilder 401(k) plan fiduciaries, relying largely on the Seventh Circuit’s...more
7/10/2020
/ 401k ,
Benefit Plan Sponsors ,
Breach of Duty ,
Defined Contribution Plans ,
Duty of Loyalty ,
Duty of Prudence ,
Employee Benefits ,
Employee Retirement Income Security Act (ERISA) ,
Excessive Fees ,
Fiduciary Duty ,
Retirement Plan ,
Self-Dealing
On June 23, 2020, the U.S. Department of Labor (the “DOL”) issued a proposed rule (which was published in the Federal Register on June 30, 2020) that would amend its “investment duties” regulation set forth at 29 C.F.R. §...more
The Fifth Circuit in Schweitzer v. Inv. Comm. of Phillips 66 Sav. Plan dismissed claims against 401(k) plan fiduciaries related to allowing plan participants to hold a single stock that was not an employer security as a plan...more
Editor's Overview -
Happy New Year. We wrap-up 2019 with an article that reflects on significant developments in ERISA litigation during 2019, and takes a look at what's on the horizon for 2020. The courts (at all levels)...more
1/17/2020
/ 401k ,
Affordable Care Act ,
American Arbitration Association ,
Arbitration ,
Article III ,
Benefit Plan Sponsors ,
Best Practices ,
Breach of Duty ,
Cadillac Tax ,
Department of Labor (DOL) ,
Employee Benefits ,
Employee Retirement Income Security Act (ERISA) ,
Employer Liability Issues ,
Individual Mandate ,
Intel Corp. Investment Policy Committee v. Sulyma ,
IRS ,
Loss Causation ,
Multiemployer Plan ,
Pleading Standards ,
Retirement Plan ,
SCOTUS ,
Standing ,
Thole v U.S. Bank ,
Venue
In this edition of our Newsletter, we take a look at a pair of cases that, while unrelated, together remind us of the importance of having clear plan rules in place that reflect the plan sponsor’s intention. The first article...more
10/11/2019
/ 401k ,
403(b) Plans ,
Affordable Care Act ,
Benefit Plan Sponsors ,
Breach of Duty ,
Class Action ,
Employee Benefits ,
Employee Retirement Income Security Act (ERISA) ,
Employer Group Health Plans ,
Fiduciary Duty ,
Foreign Nationals ,
Hardship Distributions ,
Health Insurance ,
IRS ,
Mental Health Parity Rule ,
Multiemployer Pension Plan Amendments Act (MPPAA) ,
Pensions ,
Retirement Plan ,
Safe Harbors ,
Standing ,
Statute of Limitations ,
Withdrawal Liability
Editor's Overview -
As the summer heats up, so too has the U.S. Supreme Court's docket for next term where it has already agreed to hear three ERISA cases and more may be in the works. On the docket already are ERISA...more
7/16/2019
/ 401k ,
Affordable Care Act ,
Anti-Assignment Clauses ,
Benefit Plan Sponsors ,
Certiorari ,
Collective Bargaining Agreements (CBA) ,
Department of Labor (DOL) ,
Employee Retirement Income Security Act (ERISA) ,
Federal Rules of Civil Procedure ,
Final Rules ,
HRA ,
IBM ,
Retirement Plan ,
Roth IRA ,
SCOTUS ,
Statute of Limitations ,
Stock Drop Litigation
Editor's Overview -
In last quarter's Newsletter, we commented that all eyes were on President Trump's nomination to the U.S. Supreme Court, as the outcome of the appointment process can have a significant impact on the...more
10/3/2018
/ 401k ,
403(b) Plans ,
Attorney's Fees ,
Discovery ,
Electronically Stored Information ,
Employee Benefits ,
Employee Retirement Income Security Act (ERISA) ,
Federal Rules of Civil Procedure ,
Fiduciary Duty ,
Fiduciary Rule ,
FRCP 26(b)(1) ,
Preemption ,
Recordkeeping Requirements ,
Retirement Plan ,
Standing
As we head into the thick of summer, all eyes are on President Trump's nomination to the U.S. Supreme Court to replace retiring Justice Anthony Kennedy and the impact the new Justice will have on shaping the law for...more
7/11/2018
/ 21st Century Cures Act ,
401k ,
403(b) Plans ,
Beneficiaries ,
Bi-Partison Balanced Budget Act (BBA) ,
Breach of Duty ,
Clawbacks ,
Department of Labor (DOL) ,
Employee Benefits ,
Employee Retirement Income Security Act (ERISA) ,
Fiduciary Duty ,
Fiduciary Rule ,
HDHP ,
Health Care Providers ,
Health Savings Accounts ,
Investment Adviser ,
Investment Management ,
IRS ,
MHPAEA ,
Murder ,
Plan Administrators ,
Preemption ,
Prescription Drugs ,
Retirement Plan ,
Slayer Statutes
Despite the change in seasons, there appears to be no change in the pace of complex and class action ERISA litigation. Investments in defined contribution plans—both 401(k) and 403(b) plans—continue to be the leading target...more
4/11/2018
/ 401k ,
Affordable Care Act ,
Benefit Plan Sponsors ,
Bi-Partison Balanced Budget Act (BBA) ,
Books & Records ,
Breach of Duty ,
Cadillac Tax ,
Department of Labor (DOL) ,
Disability Benefits ,
Employee Benefits ,
Employee Retirement Income Security Act (ERISA) ,
Excessive Fees ,
Executive Compensation ,
Fiduciary Duty ,
Fiduciary Rule ,
Hardship Distributions ,
Investment Adviser ,
IRS ,
Multiemployer Pension Plan Amendments Act (MPPAA) ,
Mutual Funds ,
National Association for Fixed Annuities (NAFA) ,
Retirement Plan ,
Self-Dealing ,
Standing
Editor's Overview -
For over two decades, federal law has required covered health plans and insurers to ensure that certain mental health benefits are in parity with offered medical/surgical benefits. The meaning of...more
1/9/2018
/ 401k ,
Affordable Care Act ,
Attorney's Fees ,
Benefit Plan Sponsors ,
Claim Procedures ,
Compensation & Benefits ,
Cost-Sharing ,
Deferred Compensation ,
Department of Health and Human Services (HHS) ,
Department of Labor (DOL) ,
Disability ,
Disability Benefits ,
Employee Benefits ,
Employee Retirement Income Security Act (ERISA) ,
Enforcement Actions ,
Fiduciary Duty ,
Health Savings Accounts ,
Healthcare Facilities ,
Healthcare Reform ,
Income Taxes ,
Individual Retirement Account (IRA) ,
Mental Health ,
Mental Health Parity Rule ,
MHPAEA ,
Public Health Service Act ,
QMAC ,
QNEC ,
Securities and Exchange Commission (SEC) ,
Sexual Harassment ,
Shared Responsibility Rule ,
Statute of Repose ,
Tax Deductions ,
Tax Reform ,
User Fees