Russell Hirschhorn
Partner
Russell L. Hirschhorn, co-head of the ERISA Litigation Group, represents plan fiduciaries, trustees, sponsors and service providers on the full range of ERISA and state law benefit and fiduciary issues. From single plaintiff litigation and arbitration to complex class action litigation, he provides practical guidance, develops unique litigation defense strategies and, when appropriate, mediates successful resolutions.
Russell represents clients across a wide array of publicly-held, multi-national companies and privately owned companies across a multitude of industries including, banking, finance and investments, pharmaceuticals, retail products and construction, to name just a few. In addition, he also counsels benefit plan clients on a host of compliance and federal and state government agency enforcement matters, including complex and lengthy investigations and audits by the U.S. Departments of Justice and Labor.
Russell is management co-chair of the American Bar Association Employee Benefits Committee as well as management co-chair of the Trial Institutes Committee of the American Bar Association’s Labor and Employment Law. He also writes on cutting-edge ERISA litigation issues, serving as a contributing author and a past chapter editor to Employee Benefits Law (BNA Third Edition).
Deeply dedicated to pro bono work, Russell was a principal drafter of several amicus briefs for the Innocence Project, a legal non-profit committed to exonerating wrongly convicted people. Russell has been recognized on several occasions for his commitment to pro bono work including by President George W. Bush in receiving the U.S. President’s Volunteer Service Award.
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On remand from the U.S. Supreme Court, the Seventh Circuit issued its opinion in Hughes v. Northwestern University, concluding that participants in two Northwestern 403(b) plans plausibly pled fiduciary-breach claims based on allegations of excessive recordkeeping and investment management fees, but dismissed their claim that too many investment options caused them “decision paralysis.” In so … Continue Reading
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 goes by when at least one new lawsuit has not been commenced. Still, plan sponsors and fiduciaries were … Continue Reading
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 administrative fees and investment underperformance. In this particular case, Oshkosh emerged victorious with the Seventh Circuit affirming the dismissal—at the … Continue Reading
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 in company stock funds. The Seventh Circuit recently continued that trend by affirming the dismissal of claims brought by participants in the Boeing 401(k) plan, … Continue Reading
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 soon to declare a reversal of that trend, three recent decisions dismissing these types of claims present some hope … Continue Reading
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 classes. As with its decision reviving the other 401(k) plan litigation (discussed in detail here), the Ninth Circuit declined … Continue Reading
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 (2022). In Davis v. Salesforce.com, Inc., No. 21-15867 (9th Cir. Apr. 8, 2022), the Ninth Circuit, without discussing Hughes, … Continue Reading
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 that ERISA claims are equitable in nature even when plaintiffs seek monetary relief, jury trials are unavailable. The case is Williams … Continue Reading
The Sixth Circuit, in a split decision, held that a dispute between a union and an employer regarding retiree healthcare benefits was not arbitrable because the issue of retiree healthcare benefits was not encompassed within the collective bargaining agreement’s (CBA’s) grievance procedures. The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers … Continue Reading
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 district court decision transferring an ERISA action from the Northern District of California to the District of … Continue Reading
Whether a one-time payment of benefits constitutes an employee benefit plan under ERISA has been the source of some consternation in the courts for many years. The Fifth Circuit, in Atkins v. CB&I, LLC, recently had occasion to consider the issue and held that a bonus conditioned on completing a project was not an ERISA … Continue Reading
On March 10, 2021, the U.S. Department of Labor (the “DOL”) issued a statement that it intends to revisit its final rules issued late last year on “Financial Factors in Selecting Plan Investments” (summarized here) and “Fiduciary Duties Regarding Proxy Voting and Shareholder Rights” (summarized here), which some viewed as restricting “do-good” or “ESG” investing … Continue Reading
In a unanimous (8-0) opinion authored by Justice Sotomayor, the U.S. Supreme Court held that an Arkansas state law regulating rates at which pharmacy benefits managers (PBMs) reimburse pharmacies is not preempted by ERISA. (Justice Barrett took no part in the consideration or decision of the case.) While most people would not think of ERISA … Continue Reading
Among the many lawsuits Boeing confronted following the disclosure of problems with the 737 Max was a class action brought by participants in the Boeing Voluntary Investment Plan who invested in the Boeing ESOP. The plaintiffs alleged that the Boeing defendants breached their ERISA fiduciary duties by concealing problems with the 737 Max, which allegedly … Continue Reading
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 back some of the restrictions and burdens from its proposed rule issued in June (summarized here), but it reaffirms … Continue Reading
Four ERISA plan participants, who participated in four different ERISA plans, commenced an ERISA class action against four of the nation’s largest pharmacy benefit managers (PBMs), alleging that the PBMs breached their fiduciary duties by failing to ensure that the plaintiffs and other plan participants received the benefit of discounts that the PBMs had negotiated … Continue Reading
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 as money market funds and deposit accounts that are insured by the U.S. government. Plaintiffs have argued that stable value funds are … Continue Reading
In August 2020, the SEC issued two orders against VALIC Financial Advisors Inc. (VFA) related to VFA’s management of 403(b) and 457(b) plans. These matters arise out of two of the SEC’s enforcement initiatives, the Teachers and Military Service Members’ Initiative and the Share Class Selection Disclosure Initiative. VFA is a registered investment adviser and broker-dealer with approximately $21.1 billion … Continue Reading
The Fifth Circuit concluded that an individual plaintiff was not entitled to attorneys’ fees, even though she persuaded the Fifth Circuit to vacate and remand a summary judgment decision in favor of the Humana Health Plan, because her victory was “purely procedural.” While ERISA section 502(g)(1) provides that a court “in its discretion may allow … Continue Reading
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 decision in Divane v. Northwestern University, 953 F.3d 980 (7th Cir. 2020). (Our blog on the Divane decision is available here.) In the case against … Continue Reading
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. § 2550.404a-1. The DOL states that the proposed rule is intended to “eliminate confusion” and limit when and … Continue Reading
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 investment alternative. No. 18-cv-20379, 2020 WL 2611542 (5th Cir. May 22, 2020). The Court held that: (i) … Continue Reading
Earlier today, the U.S. Supreme Court affirmed a decision by the Eighth Circuit holding that ERISA plan participants lack Article III standing to sue for breach of fiduciary duty to recover investment losses in a defined benefit fund that was not underfunded. The Court concluded that the participants lacked a concrete stake in the dispute … Continue Reading
The Tenth Circuit recently concluded that, as a matter of federal common law, a choice-of-law provision in a long-term disability insurance policy, which was part of the plaintiff’s employer’s ERISA plan, must be enforced because a “clear, uniform rule . . . is required to ensure plan administrators enjoy the predictable obligations and reduced administrative … Continue Reading
Northwestern University’s Alternative Explanations Not Strong Enough To Defeat ERISA Excessive Fee Claims
Industry Coalition Unites to Support Dismissal of ERISA Fiduciary-Breach Claims Related To BlackRock Target Date Funds
By Russell Hirschhorn and Daniel Wesson on Posted in 401(k) Plans, ERISA Coverage, Fiduciary Breach
Seventh Circuit Provides Hope for ERISA Plan Sponsors and Fiduciaries Defending Investment Fee & Performance Litigation
Seventh Circuit Affirms Dismissal of ERISA Stock-Drop Case
By Russell Hirschhorn and Daniel Wesson on Posted in 401(k) Plans, Fiduciary, Fiduciary Breach
Defendants Secure Motion to Dismiss Victories in Three Post-Hughes Decisions
Ninth Circuit Revives Second Excessive Fee 401(k) Plan Litigation
Ninth Circuit Revives Fee Challenge to Salesforce.com 401(k) Plan
District Court Rejects Demand for Jury Trial in 401(k) Investment Litigation
Sixth Circuit Rules Retiree Healthcare Benefits Claim Is Not Arbitrable
By Russell Hirschhorn and Kyle Hansen on Posted in Arbitration, Benefit Claims, Collective Bargaining
Ninth Circuit Enforces Forum Selection Clause in 401(k) Plan
By Russell Hirschhorn, Myron Rumeld, John E. Roberts, Joseph Clark, Tulio Chirinos and Kyle Hansen on Posted in 401(k) Plans, Arbitration
Fifth Circuit Rules that Project Completion Bonus is Not an ERISA Severance Plan
By Seth Safra, Russell Hirschhorn and Sydney Juliano on Posted in ERISA Coverage
DOL Will Not Enforce Trump Administration’s ERISA “ESG” Investing and Proxy Voting Rules
By Ira G. Bogner, Seth Safra, Russell Hirschhorn and Adam Scoll on Posted in Department of Labor, ERISA Coverage, Fiduciary
U.S. Supreme Court: No ERISA Preemption for State Law Regulating PBMs
By Russell Hirschhorn, Barry Warner and James W. Barnett on Posted in Preemption
Delegating Fiduciary Responsibilities Related to ESOP Results in Dismissal of ERISA Stock-Drop Claims
By Russell Hirschhorn, Paul M. Hamburger and Kyle Hansen on Posted in Disclosure, ERISA Coverage, Fiduciary
DOL Issues Final “ESG” Rule Restricting ERISA Fiduciary Consideration of Non-Pecuniary Investment Factors
By Ira G. Bogner, Russell Hirschhorn, Seth Safra, Steven Weinstein and Adam Scoll on Posted in Department of Labor, Fiduciary
ERISA Plan Participants Cannot Proceed As A Class In Challenging EpiPen Prices
By Russell Hirschhorn and Kyle Hansen on Posted in Class Certification
American Airlines 401(k) Plan Not Required To Offer Stable Value Fund
By Russell Hirschhorn, Seth Safra and Tulio Chirinos on Posted in 401(k) Plans
SEC Cracks Down on Retirement Fund Advisers’ Undisclosed Compensation and Conflicts
By Russell Hirschhorn on Posted in 403(b) Plans
Fifth Circuit: Plaintiff Not Entitled to Attorneys’ Fees For Obtaining Remand on Appeal
By Russell Hirschhorn and Kyle Hansen on Posted in Attorneys' Fees
“Divane Intervention”: ERISA 401(k) Plan Investment Claims Dead On Arrival
By Russell Hirschhorn and Kyle Hansen on Posted in Defined Contribution Plan Investment Litigation
Department of Labor Proposal Would Curtail ESG Investing
By Ira G. Bogner, Russell Hirschhorn, Seth Safra, Steven Weinstein, Adam Scoll and Kyle Hansen on Posted in Department of Labor
Fifth Circuit Upholds Dismissal of Diversification and Prudence Claims Targeting A Single Stock Fund in a 401(k) Plan
By Benjamin Flaxenburg, Russell Hirschhorn and Seth Safra on Posted in Fiduciary Breach
U.S. Supreme Court Holds ERISA Defined Benefit Plan Participants Without Monetary Losses Lack Article III Standing to Assert Breach of Fiduciary Duty Claims
By Russell Hirschhorn and Tulio Chirinos on Posted in Standing
Choice-of-Law Plan Provision Enforced As A Matter of Federal Common Law
By Russell Hirschhorn and Kyle Hansen on Posted in Choice-of-law
