Mitigating Fiduciary Risk: Lessons Learned About the Prudent Person Rule After Fifteen Years of Fee Litigation

DYLAN D. RUDOLPH and ROBERT R. GOWER, July, 2021  The uptick in lawsuits now commonly referred to as “excessive fee” fiduciary breach litigation began on September 11, 2006, when a St. Louis firm, Schlichter Bogard & Denton, filed its initial tranche of lawsuits against the fiduciaries of multiple large corporate 401(k) plans. In the fifteen […]

Ninth Circuit Approves ERISA Forum Selection Clauses

NICOLAS  DEGUINES and R. BRADFORD HUSS, June, 2021  The United States Court of Appeals for the Ninth Circuit, in the recent case of In re Becker, No. 20-72805, 2021 WL 1219745 (9th Cir. Apr. 1, 2021), upheld the use of forum selection clauses in Employee Retirement Income Security Act of 1974 (ERISA) governed plans as […]

Participant Data: Plan Asset or Fair Game for Recordkeepers to Use to Market Non-Plan Products?

CATHERINE REAGAN and R. BRADFORD HUSS, April 29, 2021   In an emerging theory of liability, plan fiduciaries’ treatment of participants’ personal data is coming under scrutiny. Over the last five years, we have seen how the collection of many individuals’ personal data can become a valuable asset in the right hands — whether it’s used […]

Supreme Court to Decide on ERISA Preemption of State Law Regulating Prescription Drug Pricing

CLARISSA A. KANG, November 24, 2020  One of the cases heard by eight justices of the Supreme Court (after Justice Ruth Bader Ginsburg died and before Justice Amy Coney Barrett was appointed and sworn in), Rutledge v. Pharmaceutical Care Management Association involves the question of whether ERISA preempts or supersedes an Arkansas state law governing […]

The Importance of Including Exhaustion Requirements in Plan Documents: Taking a Closer Look at the Sixth Circuit’s Decision in Wallace v. Oakwood Healthcare, Inc.

 ANGEL L. GARRETT, August 27, 2020  A recent decision by the U.S. Court of Appeals for the Sixth Circuit reminds plan fiduciaries once again of the importance of including claims and appeals procedures and administrative exhaustion language in their plans. See Wallace v. Oakwood Healthcare, Inc., 954 F.3d 879 (6th Cir. 2020). Often, plan fiduciaries […]

The Supreme Court Limits Standing to Sue in Cases Involving Defined Benefit Plans

JOSEPH C. FAUCHER and BRIAN D. MURRAY, June 8, 2020   On June 1, 2020, the U.S. Supreme Court issued its decision in Thole v. U.S. Bank, N.A., 2020 WL 2814294 (2020). The majority opinion — written by Justice Kavanaugh — is likely to have a significant impact on ERISA litigation involving defined benefit plans. […]

The Latest in Stable Value Fund Litigation

JOSEPH C. FAUCHER and BRIAN D. MURRAY, February, 2020    401(k) plan sponsors routinely offer stable value funds as conservative investment alternatives for their participants. Insurance companies that manage stable value funds invest in fixed income instruments, such as short- and intermediate-term government and corporate bonds and mortgage-backed securities. The funds are insured, so investors […]

Supreme Court Remands Outlier Stock Drop Decision

JOSEPH C. FAUCHER and DYLAN D. RUDOLPH, January 27, 2020    For many years, courts have wrestled with the standards that apply to a fiduciary’s decision to offer stock of the sponsor company as an investment option in the company’s 401(k) plan. The struggle arose from two arguably contradictory provisions in ERISA. One provision encouraged […]

Ninth Circuit Upholds 401(k) Plan’s Provision That Compels Arbitration and Prohibits Class or Collective Action

CLARISSA A. KANG, September, 2019  Last month, the Ninth Circuit held in favor of retirement plan fiduciaries to require arbitration of a participant’s claims for breach of fiduciary duty on an individual basis, rather than on a class action basis. Dorman v. Charles Schwab Corp., — F.3d –, 2019 WL 3926990 (9th Cir. 2019). In […]

Defined Benefit Plan Actuarial Equivalence Litigation — A Formidable Threat or An Unfounded Theory?

ANGEL L. GARRETT and BRYAN J. CARD, August, 2019    A new wave of putative class-action lawsuits filed under the Employee Retirement Income Security Act of 1974 (ERISA) has emerged onto the scene alleging that companies are using outdated mortality tables from the 1970s and 1980s in calculating alternative forms of benefits under defined benefit […]

Are ERISA Claims Subject to Arbitration?

DYLAN D. RUDOLPH and BRIAN D. MURRAY, October, 2018   In recent years, the number of lawsuits filed under the Employee Retirement Income Security Act of 1974 (ERISA) has grown exponentially. So, too, has the typical value of claims asserted in those lawsuits. With the increased risk and expense of litigation, employee benefit plan sponsors and […]

ERISA Stock Drop Cases Since Dudenhoeffer: The Pleading Standard Has Been Raised

JOSEPH C. FAUCHER AND DYLAN R. RUDOLPH, DECEMBER 13, 2017   This article analyzes the Dudenhoeffer pleading standard and “stock drop” cases. It was first published by Wolters Kluwer in the Journal of Pension Benefits, Spring 2017, Vol. 24, No. 3. I. Introduction  Before 2014, most of the federal Courts of Appeals applied a “presumption of prudence” when […]

New Wave of Retirement Fee Litigation: The University 403(b) Lawsuits

CLARISSA A. KANG, January 2017   The fiduciaries of retirement plans for 12 major universities have been hit with coordinated lawsuits asserting breaches of fiduciary duty arising from allegedly excessive fees for administrative and investment management services, imprudent selection and monitoring of recordkeepers and investment options, underperforming plan investment options, and a “paralyzing” array of […]

The Fifth Circuit Emphasizes that Conclusory Statements will not Satisfy the Pleading Standard for Stock Drop Lawsuits

FREEMAN L. LEVINRAD, October 2016    On September 26, 2016, the Fifth Circuit, in Whitley v. BP, P.L.C. (“Whitley”), 2016 WL 5387678 (2016), emphasized that conclusory statements will not satisfy the pleading standard for complaints alleging breaches of fiduciary duty related to retirement plans’ investment in employer stock (commonly known as stock-drop cases), as established in […]

The Enforceability of ERISA Forum Selection Clauses — Two Recent “Against-the-Trend” Cases and an Uncertain Future

JAHIZ NOEL AGARD, September 2016 For those interested in the law of ERISA forum selection clauses, 2016 has been a year to remember. The majority of courts to address this issue have ruled in favor of enforcing forum selection clauses. However, going against the trend, two federal district courts recently determined that forum selection clauses […]

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