Employee Benefits & Executive Compensation Blog

The View from Proskauer on Developments in the World of Employee Benefits, Executive Compensation & ERISA Litigation

Category Archives: Defined Contribution Plan Investment Litigation

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Wisconsin District Court Rulings Signal Potential New Trend Favoring the Defense of ERISA Fee and Investment Performance Lawsuits

In a striking reversal of approach beginning in the summer of 2022, the District Court for the Eastern District of Wisconsin went from denying, in whole or in part, virtually every motion to dismiss ERISA lawsuits targeting plan recordkeeping fees and investment fund selections to granting all of them.  This nearly 180 degree pivot comes … Continue Reading

New York District Court Rejects ERISA Excessive Fee Claims as Insufficient

A district court in New York recently dismissed a putative class action challenging retirement plan recordkeeping and investment management fees.  The case is Singh v. Deloitte LLP, No. 21-cv-8458, 2023 WL 186679 (S.D.N.Y. Jan. 13, 2023).  The court’s decision adds to the growing number of Second Circuit district courts relying on out-of-circuit appellate decisions to … Continue Reading

ERISA Fee Complaint Dismissed in Pennsylvania District Court, Extending Favorable Trend

In Krutchen v. Ricoh USA, No. 22-cv-678, 2022 U.S. Dist. LEXIS 206792 (E.D. Pa. Nov. 15, 2022), a Pennsylvania district court dismissed an ERISA excessive fee complaint for failing to provide enough information about alleged comparator plans that allegedly paid less for recordkeeping services. The decision is notable for delivering defendants a victory in the … Continue Reading

Magistrate Recommends 180° Course Correction on Previously Denied Motions to Dismiss In ERISA Fee Litigation Cases

In a pair of report and recommendations issued the same day, a Magistrate Judge in Wisconsin recently recommended that the district court (i) grant motions for reconsideration of prior denials of motions to dismiss claims challenging defined contribution plans’ fees, and (ii) grant the motions to dismiss in their entirety.  Underpinning the recommendations is the … Continue Reading

Eighth Circuit Joins Growing Number of Courts Rejecting Common ERISA Fee and Investment Claims

In Matousek v. MidAmerican Energy Co., 2022 WL 6880771, __ F.4th __ (8th Cir. 2022), the Eighth Circuit joined the Sixth and Seventh Circuits in affirming dismissal of ERISA breach of fiduciary duty claims alleging that the plan fiduciaries allowed the plan to pay excessive recordkeeping and administrative fees and offered imprudent investment options. Background … Continue Reading

Two More District Courts Reject ERISA Fee and Performance Claims as Insufficient

Two recent district court decisions add to the growing number of courts granting motions to dismiss putative ERISA class actions challenging defined contribution plan fees and investment performance.  These decisions from the Eastern District of New York and the Eastern District of Wisconsin are the latest victories for defendants at the motion to dismiss stage … Continue Reading

Two District Courts in the Seventh Circuit Grapple with Pleading Standards in ERISA Excessive Fee Cases

In Baumeister v. Exelon, No. 21-cv-6505, 2022 U.S. Dist. LEXIS 176711 (N.D. Ill. Sep. 22, 2022) and Coyer v. Univar Sols. USA Inc., No. 22-cv-362, 2022 U.S. Dist. LEXIS 175972 (N.D. Ill. Sep. 28, 2022), two Illinois district courts became the first courts in the Seventh Circuit to rule on motions to dismiss ERISA fee … Continue Reading

Seventh Circuit Provides Hope for ERISA Plan Sponsors and Fiduciaries Defending Investment Fee & Performance Litigation

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

Sixth Circuit Upholds Dismissal of Some Investment Fee and Performance Claims But Allows Mutual Fund Share Class Claim to Proceed to Discovery

The Sixth Circuit recently issued a mixed opinion in a 401(k) plan investment litigation.  The Court upheld the dismissal of the plaintiffs’ fiduciary-breach claims relating to the investment management fees and performance of several of the plan’s investment options, but reinstated a claim for breach of fiduciary duty based solely on the plan fiduciaries’ alleged … Continue Reading

Defendants Secure Motion to Dismiss Victories in Three Post-Hughes Decisions

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

Sixth Circuit Rejects Arbitration for Proposed Fiduciary Breach Class Action

The Sixth Circuit, in a matter of first impression for that Circuit, held an arbitration clause contained in an individual employment agreement did not apply to ERISA fiduciary breach claims brought on behalf of a defined contribution plan.  The case is Hawkins et al. v. Cintas Corp., No. 21-2156, __ F.4th __, 2022 WL 1236954 … Continue Reading

Ninth Circuit Revives Second Excessive Fee 401(k) Plan Litigation

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

Ninth Circuit Revives Fee Challenge to Salesforce.com 401(k) Plan

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

District Court Enforces 403(b) Plan Arbitration Clause With Class Action Waiver But Allows For Plan-Wide Non-Monetary Relief

A federal district court in Florida sent a proposed ERISA breach of fiduciary duty class action to individual arbitration on the basis of a plan arbitration clause that allowed for individual relief and plan-wide injunctive relief.  The case is Holmes v. Baptist Health South Florida, Inc., No. 21-cv-22986, 2022 WL 180638 (S.D. Fla. Jan. 20, … Continue Reading

District Court Declines to Dismiss 401(k) Fee Litigation Case in First Decision Post-Hughes

In the first decision since the Supreme Court’s ruling in Hughes v. Northwestern Univ., No. 19-1401, 595 U.S. ___ (U.S. Jan. 24, 2022) (discussed further here), a Georgia federal district court held in favor of plaintiffs and declined to dismiss allegations that defendant’s 401(k) plan included costly and underperforming funds and charged excessive recordkeeping fees. … Continue Reading

The Supreme Court Declines to Establish Pleading Standard for Defined Contribution Plan Excessive Fee Litigation

To the disappointment of many in the ERISA community, the Supreme Court issued a six-page opinion on January 24th that declined to opine on most of the issues that were before the Court in Hughes v. Northwestern University, No. 19-1401 (U.S. Jan. 24, 2022). In a unanimous opinion authored by Justice Sotomayor, in which Justice … Continue Reading

District Court Rejects Demand for Jury Trial in 401(k) Investment Litigation

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

“Divane Intervention”: ERISA 401(k) Plan Investment Claims Dead On Arrival

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

Minimizing the Risk of ERISA Litigation in a Turbulent Economic Climate

As recent history has shown, ERISA claims seeking recovery of investment losses tend to proliferate during times of market volatility.  The Coronavirus (COVID-19) pandemic presents a unique opportunity for plaintiffs to search for and bring fiduciary-breach claims based on the underperformance of company stock funds and other available investment options in 401(k) and 403(b) plans.  … Continue Reading

A Good 403(b) or a Bad 403(b)? A Question IRS Auditors Look to Answer

In each case, the answer depends on whether the document and operation are in compliance with the many technical requirements for section 403(b) plans. IRS officials have recently indicated that the IRS expects to launch audit initiatives this summer targeting section 403(b) plan compliance, so now is a good time for employers with section 403(b) … Continue Reading

[Podcast]: Key Considerations for ERISA Plan Fiduciaries When Delegating Investment Authority

In this episode of The Proskauer Benefits Brief, partner Ira Bogner and senior counsel Adam Scoll discuss the key considerations for ERISA plan fiduciaries when delegating investment authority over plan assets.  We will break down some of the material ERISA issues that may apply when an ERISA plan hires a separate account investment manager or invests in a private investment … Continue Reading

Record-Keeper Defeats Second Round of Robo-Adviser Fee Litigation

As we reported here, record-keepers for large 401(k) plans have thus far been successful in defending ERISA fiduciary-breach litigation over investment advice powered by Financial Engines.  These lawsuits generally claim that fees collected by record-keepers for investment advice were unreasonably high because the fees exceeded the amount actually paid to Financial Engines.  Plaintiffs in Chendes v. … Continue Reading

First Round of Robo-Advisor Fee Litigation Goes to Record-Keepers

Since 2016, record keepers for large 401(k) plans have been defending litigation over investment advice provided by the Financial Engines investment advice algorithm.  (This kind of arrangement is commonly referred to as “robo-advice.”) The lawsuits claim, in essence, that fees collected by record keepers for investment advice were unreasonably high, because the fees exceeded the … Continue Reading

Plaintiffs Lack Standing to Bring ERISA Fee Litigation Case

A federal district court in Georgia dismissed claims by participants in Delta Air Lines, Inc.’s 401(k) plan who alleged that Delta breached its ERISA fiduciary duties by allowing the plan to invest in funds that allegedly charged excessive fees and unperformed against comparable funds. Consistent with rulings in other jurisdictions, the court held that plaintiffs … Continue Reading
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