ERISA litigators need to eat and once they exhausted much of the fee litigation prior to the implementation of fee disclosure, they needed something else to sink their teeth in. Then we got cases regarding using the wrong share classes of mutual funds as a violation of duty of prudence in the Tibble v. Edison case.

There have been cases regarding participants who invest revenue sharing paying funds to subsidize those participants who do not.

Revenue sharing in Tussey v. ABB also took center stage as more and more cases have held plan sponsors to be liable if one of the biggest reasons for selection of plan investments was that those investments produced revenue sharing.

What can a plan provider do? Take care of the threats that you know that may involve litigation or Department of Labor oversight. What is the next big thing? My two cents is plan sponsors who use too many proprietary funds that are managed by their bundled provider. I also think that revenue sharing is still going to be a big issue. A plan sponsor needs to show that picking plan investments weren’t solely based on revenue sharing and because the bundled provider was the fund manager.

I am not trying to create any alarms that are unwarranted; it’s just my advice to you.