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COLLECTED WISDOM™ on Court and Legal Actions Related to Retirement Plans

A directory and index of articles that review what is happening in the courts and legal system.

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Franklin Resources Can't Get 401k Fee Lawsuit Dismissed

Abstract: Franklin Resources lost its bid for quick dismissal of a lawsuit claiming that it stuffed its workers' 401k plan with in-house mutual funds that carried excessive fees and performed worse than competitors' funds.

Source: Bna.com (registration may be required), January 2017

How to Make Your 401k or 403(b) Plan a Litigation Target

Abstract: Sometimes it seems as if these defendant fiduciaries were almost asking to be sued, since the practices being described in the complaints are so vulnerable to challenge. These lawsuits keep proliferating, so fiduciaries of 401k and 403(b) plans would be well advised to learn from what the defendants were alleged to have been doing wrong.

Source: Cohenbuckmann.com, January 2017

Hospital Target in 403(b) Lawsuit Starts Off the Year

Abstract: Plan participants of Eseentia Health in Minnesota filed a class action lawsuit against the 403(b) plan sponsor claiming that the organization paid excessive fees to their recordkeepers. Experts are predicting an increasing number of lawsuits, especially against 403(b) plans which many consider low hanging fruit.

Source: 401ktv.com, January 2017

J.C. Penney Agrees to Pay $4.5 Million to Settle 401k Suit

Abstract: Department-store chain J.C. Penney is poised to pay $4.5 million to settle allegations over company stock in the firm's 401(k) plan, following a district court judge's preliminary approval of the settlement.

Source: Investmentnews.com (registration may be required), January 2017

Recordkeeping Fees Trigger Latest Excessive Fee Suit

Abstract: A new excessive fee lawsuit claims that plan fiduciaries caused plans to "pay excessive fees" and failed to "monitor and control the Plans' escalating costs," resulting in millions of dollars of losses to the plans, and this time share classes are not the issue.

Source: Ntsa-net.org, January 2017

Outlook for 2017 Retirement Plan Litigation

Abstract: Copycat lawsuits targeting 403(b) plans, as well as litigation probing a fiduciary's duty to monitor investments, the DOL fiduciary rule, church retirement plans and cybersecurity issues are likely to crop up this year.

Source: Investmentnews.com (registration may be required), December 2016

Prudential Cleared in 401k Pay-to-Play Lawsuits

Abstract: Prudential Retirement defeated a pair of lawsuits accusing it of operating a "pay-to-play" scheme for the mutual funds offered through the 401(k) plans it services.

Source: Bna.com (registration may be required), December 2016

Process Remains Critical Factor in ERISA 401k Plan Litigation

Abstract: A recent decision by the Northern District of California provides a welcome counterpoint in the fact that a detailed complaint has been filed alleging various breaches of the duty of loyalty and duty of prudence does not mean that there was any breach of fiduciary duty whatsoever.

Source: Wagnerlawgroup.com, December 2016

Hotel Giant Starwood Hit With 401k Fee Class Action

Abstract: Starwood Hotels & Resorts Worldwide is the latest company accused of breaching its fiduciary duties by layering up its 401k plan with high-priced, poorly performing investment options.

Source: Bna.com (registration may be required), December 2016

Delta Air Lines Latest Company Hit With 401k Class Action

Abstract: Delta Air Lines is accused in a new lawsuit of selecting high-priced, poorly performing and duplicative investment options in the company's 401k plan despite the availability of less-expensive alternatives.

Source: Bna.com (registration may be required), December 2016

D.C. Court of Appeals Denies Emergency Request to Halt Conflict of Interest Rule

Abstract: The U.S. Court of Appeals for the District of Columbia Circuit denied the emergency request from the National Association for Fixed Annuities for an injunction blocking the implementation of the Department of Labor's conflict of interest rule and related exemptions.

Source: Erisapracticecenter.com, December 2016

DOL Files Lawsuit to Appoint Independent Fiduciary to Administer 401k

Abstract: The department is seeking the removals of Hidebumi Minagawa as plan administrator and trustee, and of Hailu Solomon as trustee, and the appointment of an independent or successor fiduciary with discretionary authority to administer the plan in order to effectuate its termination and the distribution of the plan's remaining assets.

Source: Dol.gov, December 2016

Fidelity, Putnam 401k Investors Get Class Treatment

Abstract: A pair of lawsuits accusing Fidelity Management Trust Co. and Putnam Investments LLC of 401k mismanagement were certified as class actions.

Source: Bna.com (registration may be required), December 2016

Edison Workers' 401k Fee Challenge Revived by Ninth Circuit

Abstract: Edison International workers convinced an appeals court to revive their claim accusing the company of breaching its ERISA fiduciary duties by failing to monitor allegedly high fees charged in the company's 401k plan.

Source: Bna.com (registration may be required), December 2016

A Guide to Avoiding 401k Litigation

Abstract: As the pool of large plans diminishes and the litigation theories become well-known, it is inevitable that the volume of 401k litigation will expand. Fortunately, most plan sponsors can avoid 401k litigation by taking a few obvious steps. Here are some suggestions.

Source: Greensfelder.com, December 2016

DOL Sues Company for Abandoning 401k Plan After Ceasing Operations

Abstract: The complaint seeks the removal of Authorized Factory Service as the plan fiduciary, and the appointment of an independent fiduciary to administer the plan in order to effectuate the termination of the plan and the distribution of plan assets to all affected participants and beneficiaries.

Source: Dol.gov, December 2016

DOL Sues Defunct Company to Restore Unremitted Participant Contributions to 401k

Abstract: The lawsuit seeks to require each of the fiduciary defendants, the company, and plan trustee to jointly restore all losses caused to the plan by their fiduciary breaches.

Source: Dol.gov, December 2016

Financial Engines a Litigation Target?

Abstract: A handful of recent lawsuits have named, but not charged, Financial Engines in alleged "pay-to-play" arrangements with providers. That could be getting ready to change.

Source: Napa-net.org, December 2016

Wave of Lawsuits Strikes Retirement Plan Sponsors

Abstract: A significant number of lawsuits have been filed against retirement plan sponsors for failing to properly administer their plans and subsequently violating ERISA regulations. Although lawsuits like these were once seen as taboo, they have recently shed light on plan mismanagement and also exposed plan sponsors to a lot of risk.

Source: Dgccpa.com, December 2016

ERISA Stock Drop Suit Filed Against Exxon Mobil

Abstract: Misrepresentations regarding climate change caused Exxon Mobil's stock price to be artificially inflated, the compliant says.

Source: Planadviser.com, December 2016

Voya Facing Lawsuit Over Stable Value Funds

Abstract: A 403(b) plan participant is claiming that Voya set crediting rates for stable value funds lower than rates of return in order to make a profit.

Source: Planadviser.com, December 2016

401k Plan Fee Litigation Update

Abstract: The wave of fee litigation is ongoing and has significantly increased the responsibility of 401k plan fiduciaries to follow well documented, prudent processes to monitor 401k plan fees and expenses. This article reviews the litigation trends and then provides some observations and take-aways.

Source: Milesstockbridge.com, December 2016

Wells Fargo Hit With Class Action Over Target-Date Funds

Abstract: Wells Fargo enriched itself at its employees' expense by including costly, in-house target date funds in its 401k plan, a new class action complaint alleges.

Source: Bna.com (registration may be required), November 2016

Stock Drop Lawsuit Did Not Satisfy Dudenhoeffer Pleading Standard

Abstract: In this appeal, the Fifth Circuit reversed, ruling that the amended pleadings did not plausibly allege alternative actions as required by the Supreme Court. The court found that it was not reasonable to say that a prudent fiduciary at that time could not have concluded that disclosure of nonpublic information or freezing employer stock trades -- both of which would likely lower the stock price -- would do more harm than good.

Source: Thomsonreuters.com, November 2016

FMC Sued Over 401k Stake in Sequoia Fund, Valeant

Abstract: FMC Corp. is accused in a new lawsuit of mishandling workers' retirement savings by allowing more than $40 million in 401k assets to be invested in the Sequoia Fund and the stock of controversial drugmaker Valeant Pharmaceuticals.

Source: Pionline.com (registration may be required), November 2016

Disney Fiduciaries Beat Lawsuit Over Valeant Stock in 401k Plan

Abstract: Fiduciaries of Walt Disney Co.'s 401k plan convinced a federal judge in California to toss out a proposed class action challenging their decision to allow participants to invest their plan assets in the Sequoia Fund and Valeant Pharmaceuticals' stock.

Source: Bna.com (registration may be required), November 2016

This Is Why You Monitor Your Recordkeeper

Abstract: Unlike many of the excessive fee lawsuits that we have seen over the past few years, a new suit has been filed against the recordkeeper, rather than against the plan sponsor or retirement plan committee. The complaint alleges that Xerox (the recordkeeper for the three Ford plans), as a precondition to making Financial Engines' investment advice tools available on their platform, required FE to overcharge participants and pay Xerox a "kick back" from the fees charged for providing investment advice.

Source: Pension-Consultants.com, November 2016

The University Fee Cases - Product of the Past, Possible Wave of the Future

Abstract: The suits resemble the dozens of "excessive fee" class actions against 401k plan sponsors and fiduciaries in recent years. But they are novel in many respects, especially because their targets, the fiduciaries of 403(b) retirement plans, have not been the focus of much ERISA fiduciary breach litigation until now. The new cases will test the essential structure of such plans and will determine whether fiduciary standards developing in 401k matters should be applied in the same manner in the 403(b) context.

Source: Groom.com, November 2016

Edward Jones Hit With Second ERISA Lawsuit Over 401k Fees

Abstract: Edward D. Jones & Co. breached its fiduciary duties to employees in its 401k plan by including mutual fund investments from business partners and affiliates that charged higher fees than competitors, a new lawsuit alleges.

Source: Bna.com (registration may be required), November 2016

Revenue Sharing in Managed Accounts Targeted by Class Action Law Firm

Abstract: Managed accounts within DC plans continue to be targeted by class action law firms with the latest filed by Schneider Wallace on behalf of three participants in the $14 billion Ford Motor Company plan against their recordkeeper Xerox HR Solutions.

Source: 401ktv.com, November 2016

Plan Administrator Pays for Failure to Furnish Documents

Abstract: After ruling that a 401k plan administrator violated ERISA when it failed to furnish a custodial agreement and other documents requested by a plan participant, a trial court has imposed penalties totaling $15,959.

Source: Thomsonreuters.com, November 2016

Should Your ERISA Plan Have a Forum Selection Clause?

Abstract: With relatively few exceptions, administrators of employee benefit plans covered by ERISA have enjoyed success enforcing forum selection clauses in cases across the country. As such, employers should consider implementing a forum selection clause in their plans.

Source: Bradley.com, November 2016

A Potential Impact of the 403(b) University Lawsuits on 401k Self-Directed Brokerage Accounts

Abstract: 403(b) plans, with their wide variety of investments which are subject only to the control of the participants, are essentially structured in the same manner as SBDAs in 401k plans. Should the plaintiffs succeed in their claims that it was imprudent to permit employees the ability to invest in a wide range of securities without fiduciary oversight, it may well be the death knell of SBDAs.

Source: Businessofbenefits.com, November 2016

Owner/Trustee of 401k Plan Accused of Having Eyes Wide Shut on Fiduciary Duties

Abstract: A class action complaint was recently filed against the owner of the Emerald Coast Eye Institute. The two plaintiffs allege that they were terminated because of complaining to the owner and Plan Trustee about breaches of fiduciary duty with respect to the 401k Plan resulting in losses and damages over $1 million.

Source: Benefitsnotes.com, October 2016

These Top Law Firms Got the Most ERISA Class Action Biz

Abstract: The latest wave in ERISA class action litigation has seen more than 100 lawsuits brought against a wide range of entities, including financial institutions, universities, religiously affiliated organizations and multinational companies. With this uptick in litigation, it looks like employers are relying more on a small pool of big law and boutique firms to represent their interests.

Source: Bna.com (registration may be required), October 2016

Deutsche Bank Can't Shake 401k Fee Lawsuit

Abstract: A lawsuit accusing Deutsche Bank of stuffing its 401k plan with high-fee, in-house funds is moving forward after a federal judge largely denied the banking giant's motion to dismiss.

Source: Bna.com (registration may be required), October 2016

What the 403(b) Excessive Fee Lawsuits Do Not Consider

Abstract: Numerous lawsuits have been filed against large universities over alleged excessive investment and recordkeeping fees for their 403(b) plans. These lawsuits are in many ways clones of 401k lawsuits, but they completely disregarding some of the distinctions between the two plan types.

Source: Plansponsor.com, October 2016

DOL Obtains Order to Remove Fiduciary From $2.2mm Employee Savings Plan and Trust

Abstract: The DOL filed a complaint against Horizon NR LLC and Lance Sogan in Ashland, Kentucky. Sogan, the alleged fiduciary to the Horizon NR LLC Employee Savings Plan and Trust, waived his response to the complaint and entered into a consent order and judgment with the court.

Source: Dol.gov, October 2016

DOL Sues Baltimore-Based Architect to Recover $56k for 401k Plan Participants

Abstract: An investigation by the DOL led the Secretary of Labor to file a complaint which alleges the defendants failed to remit $56,065.27 in employee 401k contributions beginning on July 28, 2009.

Source: Dol.gov, October 2016

Neuberger Berman Fights Back Against 401k Lawsuit

Abstract: Some large employers are facing lawsuits over the funds they offer to employees in their retirement programs, and a handful of employers have chosen to settle the claims. Neuberger Berman is not one of them.

Source: Institutionalinvestor.com, October 2016

Wells Fargo Cross-Selling Scandal Spawns ERISA Class Action

Abstract: Wells Fargo's month-long struggles continued Oct. 7th when a participant in the company's 401k plan filed a proposed class action challenging a 12 percent drop in the company's stock price following recent revelations of an illegal cross-selling scheme.

Source: Bna.com (registration may be required), October 2016

SunTrust Executives Avoid ERISA Stock-Drop Lawsuit

Abstract: SunTrust Banks' directors and general counsel dodged allegations that they breached their ERISA fiduciary duties by offering poorly performing company stock as an investment option in the bank's 401k plan.

Source: Bna.com (registration may be required), October 2016

401k Suit Survives Anti-Alienation Challenge

Abstract: Stock drop lawsuits are generally about employer stock that has suffered a precipitous drop in value, and in rare cases, where participants have been deprived from keeping that investment, and then there's this one.

Source: Asppa.org, October 2016

403(b) Lawsuits, Fees vs. Value

Abstract: The drumbeat of lawsuits against large 403(b) and qualified plan sponsors continues. The author of this article discusses the lawsuits against large 403(b) and qualified plan sponsors and what they entail.

Source: Ntsa-net.org, October 2016

401k Accused of Investing in "Patent Troll"

Abstract: A Florida optometry practice is the latest small employer to be sued for 401k mismanagement, with a newly filed lawsuit accusing the practice of over-investing in alleged "patent troll" VirnetX.

Source: Bna.com (registration may be required), October 2016

Sanofi Avoids ERISA Challenge to Stock Losses in Its 401k Plan

Abstract: Sanofi-Aventis U.S. LLC is the latest company to dodge a lawsuit accusing it of breaching its ERISA fiduciary duties by allowing participants in its 401k plan to continue investing in company stock despite knowing its value was artificially inflated.

Source: Bna.com (registration may be required), October 2016

BICs Litigation Provisions Trigger Another DOL Suit

Abstract: A new lawsuit has been filed challenging the Department of Labor's fiduciary regulation's interference with existing arbitration structures.

Source: Asppa.org, October 2016

Stock Drop Plaintiffs in the Fifth Circuit Fail to Meet the High Pleading Standard of Dudenhoeffer and Amgen

Abstract: In Whitley v. BP, the US Court of Appeals for the Fifth Circuit held that retirement plan participants did not state a plausible stock drop claim under the pleading standards established by the US Supreme Court's Fifth Third Bancorp v. Dudenhoeffer decision.

Source: Practicallaw.com, October 2016

DOL Files Complaint to Recover More Than $29K in Losses to 401k

Abstract: The DOL found that the company retained approximately $29,058 of contributions in the company's corporate bank account and used them for general operating expenses, in violation of ERISA.

Source: Dol.gov, September 2016

DOL Comes Up Short in Battle Against Forum Selection Clauses

Abstract: The DOL struck out once again in its ongoing effort to stop employers from forcing lawsuits over workers' benefits into the employer's preferred court.

Source: Bna.com (registration may be required), September 2016

Thrivent Financial Challenges DOL Fiduciary Rule

Abstract: Thrivent Financial for Lutherans is accusing the DOL of exceeding its statutory authority by attempting, with its new fiduciary rule, to force all disputes into federal court rather than allowing for alternative dispute resolution methods.

Source: Bna.com (registration may be required), September 2016

RadioShack Joins BP, Whole Foods in Beating Stock Lawsuits

Abstract: RadioShack Corp. is the third major company in less than a week to defeat a lawsuit by employees claiming they lost retirement savings because their employer allowed them to invest in poorly performing company stock.

Source: Bna.com (registration may be required), September 2016

Chart of 401k Fee Litigation - September 2016

Abstract: Nearly forty lawsuits have been commenced relating to 401k plan fees. These include lawsuits against the plan sponsors and 401k plan service providers. This is an updated chart of current litigation.

Source: Groom.com, September 2016

Updated Chart of ERISA Issues Related to "In-House" Plan Use of Proprietary Products

Abstract: Like other employers, financial institutions sponsor ERISA-covered retirement and welfare plans for their employees. Often, the "in-house" benefit plans of a financial institution invest plan assets in mutual funds or other investment products that are managed by the financial institution or an affiliate. The practice has spun a number of lawsuits. This chart identifies the lawsuits that have been filed to date, describes the claims that have been asserted in the lawsuits, and summarizes the substantive court rulings and the procedural status of the cases.

Source: Groom.com, September 2016

University 403(b) Plan Litigation Update

Abstract: Until recently, the fiduciaries of 403(b) plans have generally not been the target of ERISA excessive fee litigation, which has principally focused on the corporate sponsors of 401(k) plans. That changed abruptly this August, when within a matter of days twelve class action lawsuits were filed in multiple U.S. district courts against private universities claiming they had breached ERISA fiduciary duties owed to participants in their retirement plans. Chart summarizes current university litigation.

Source: Groom.com, September 2016

DOL Sues Company to Restore $166k to 401k Plan

Abstract: The DOL found the company violated the Employee Retirement Income Security Act in several instances. Investigators determined from April 27, 2012, through Dec. 26, 2014, the company withheld employees' pay but then failed to remit employee contributions and employee loan repayments to the plan.

Source: Dol.gov, September 2016

AIG Retirement Plans Get Slice of $725M Securities Settlement

Abstract: Four American International Group Inc. retirement plans can share in a $725 million securities settlement between AIG and its investors, the U.S. Court of Appeals for the Second Circuit ruled.

Source: Bna.com (registration may be required), September 2016

Labor Secretary Questions Fiduciary Fulfillment in Reynolds Retirement Case

Abstract: The U.S. Labor Secretary has questioned whether the RJR Pension Investment committee fulfilled its fiduciary duties in a case involving its retirement plans. Secretary Thomas Lopez filed an amicus brief Sept. 9 in the Fourth District of the U.S. Appeals Court. The case involves plaintiff Richard Tatum, R.J. Reynolds Tobacco Holdings Inc. through its former affiliation with Nabisco, and potentially 3,549 current and former employees.

Source: Journalnow.com, September 2016

ERISA 403(b) Lawsuits: Are Hospital Plans Sick and University Plans Dumb?

Abstract: Regulatory changes enacted in the past decade have resulted in many more 403(b) plans becoming ERISA plans and the impact of the ERISA fiduciary requirements is now being felt. The two core fiduciary duties under ERISA are prudent investigation and always placing the interest of the participant first. It is apparent that many of these plans, including some very large plans, were unaware of these fiduciary duties. The result of that is increased litigation with more than a dozen lawsuits being filed just this year.

Source: Unifiedtrust.com, September 2016

Is Your 401k Plan Income "Floating" Away? New Lawsuit Challenges Fidelity's Practices

Abstract: A recent class action suit filed against Fidelity and two plan sponsors, United Airlines and Hewlett-Packard, claims that the income on "float" accounts should have been credited for the benefit of the plans and that Fidelity committed fiduciary breaches by keeping the float. The suit also names the plan fiduciaries for allowing Fidelity to engage in these practices, which plaintiffs contend are prohibited transactions.

Source: Cohenbuckmann.com, September 2016

Northrop Grumman Drained Retirement Savings, Workers Allege

Abstract: Northrop Grumman Corp. and its executives forced employees to pay nearly $10 million in excessive and largely unnecessary retirement plan fees that went directly to the defense contractor in violation of federal law, a new lawsuit alleges.

Source: Bna.com (registration may be required), September 2016

Voya Accused of Layering 401ks With Unnecessary Fees

Abstract: A new lawsuit accuses Voya Financial Inc. of creating a system for retirement investors to receive investment advice that allowed the company to skim undeserved fees from investors' accounts in violation of federal law.

Source: Bna.com (registration may be required), September 2016

Newest 401k Fee Suit Challenges Admin, RK, Investment Fees

Abstract: Another major employer has been charged in an excessive fee lawsuit that not only contests the fees paid by the plan, but administrative fees paid by the plan to the plan sponsor as well. The suit claims that Northrop Grumman employees were "motivated to, and did, charge time and expenses to the Plan which were impermissible in nature, unreasonable, and unnecessary."

Source: Asppa.org, September 2016

Federal District Court Enforces Forum Selection Clause Contained in ERISA Plan

Abstract: A federal district court in the Eastern District of Pennsylvania transferred an ERISA lawsuit against Caterpillar Inc. to the Northern District of Illinois after finding the forum selection clause contained in the governing plan was valid and enforceable.

Source: Erisapracticecenter.com, September 2016

IBM Defeats Twin Challenges to Stock Drop

Abstract: IBM and its executives won dismissal of lawsuits claiming that a 17 percent drop in the company's stock price implicated federal securities laws and caused workers to lose retirement savings in violation of ERISA.

Source: Bna.com (registration may be required), September 2016

Score One for 401k Fiduciaries - Excessive Fee Suit Against Chevron Dismissed

Abstract: We have finally had some good news for embattled fiduciaries. A few days ago, the fiduciaries of the Chevron 401k Plan succeeded in getting an excessive fee complaint dismissed-at least for the time being-because it contained conclusions rather than facts sufficient to infer that the fiduciaries had breached their fiduciary duties.

Source: Cohenbuckmann.com, September 2016

Chevron Defeats Lawsuit Challenging 401k Fees, Funds

Abstract: Chevron Corp. convinced a federal judge to dismiss class action claims challenging the fees and investment options associated with its 401k plan.

Source: Bna.com (registration may be required), September 2016

Impact of New Fiduciary Rules on an Excess Fee Lawsuit

Abstract: The drumbeat of new lawsuits against 401k plans, their sponsors, and investment and service providers continues. This 2-page article discusses how these suits may fare under current regulatory guidance and under the DOL's new fiduciary rule once it goes into effect.

Source: Wagnerlawgroup.com, August 2016

Chevron Wins Dismissal of Claims of Poor Savings Plan Oversight

Abstract: A U.S. judge has dismissed a lawsuit by Chevron Corp workers who said the oil company breached its fiduciary duties by putting costly and poorly performing investment options in an employee 401k savings plan.

Source: Reuters.com, August 2016

First Citizens Can't Dodge ERISA Suit Challenging Stock Drop

Abstract: A Georgia bank formerly known as First Citizens Bankshares Inc. must defend claims that it failed to investigate whether its employees should continue investing retirement savings in company stock that declined from $340 to $29 per share.

Source: Bna.com (registration may be required), August 2016

Safeway, Great-West Sued Over JP Morgan Funds in 401k Plan

Abstract: Safeway and Great-West Financial face a lawsuit accusing them of breaching their ERISA fiduciary duties by allegedly selecting JP Morgan's high-fee target-date funds as investment options for the supermarket chain's 401k plan.

Source: Bna.com (registration may be required), August 2016

What the 403(b) Excessive Fee Lawsuits Do Not Consider

Abstract: In the past two weeks, eight lawsuits have been filed against large universities concerning excessive investment and recordkeeping fees for their 403(b) plans. Attorneys point out distinctions between 403(b)s and 401ks, and lessons 403(b) plan sponsors can learn from these recent lawsuits.

Source: Plansponsor.com, August 2016

DOL Complaint Alleges Fiduciary Failures by Adviser

Abstract: A complaint filed in a Pennsylvania district court by the DOL's Employee Benefits Security Administration alleges a list of ERISA infractions related to fees, documents, disclosures and processes by a 3(21) fiduciary firm.

Source: Planadviser.com, August 2016

401k Fee Litigation Finds New Targets

Abstract: More and more lawsuits are being filed to challenge plan fees and investments. Plaintiffs are asking the courts to make new law in this area. This article provides a summary of the targets and theories in the new lawsuits.

Source: Benefitnews.com, August 2016

Fidelity, HP, United Airlines Sued Over 401k Float Practice

Abstract: HP, United Airlines, and Fidelity were hit with an ERISA class action by 401k plan participants challenging Fidelity's practice of allegedly diverting billions of dollars of plan assets for its own benefit.

Source: Bna.com (registration may be required), August 2016

Edward Jones the Latest 401k Litigation Target

Abstract: Another broker/dealer has been accused of larding its 401k plan menu with investment options from mutual fund families that paid hundreds of millions of dollars to the firm, despite what are alleged to be "high fees, poor performance prospects, and availability of better-performing, lower-cost alternatives."

Source: Napa-net.org, August 2016

Lawsuit Accuses Morgan Stanley of Self-Dealing in 401k

Abstract: A participant in Morgan Stanley's 401k plan has filed a lawsuit on behalf of approximately 60,000 current and former plan participants alleging the plan included investment options with excessive fees and used Morgan Stanley proprietary funds rather than other funds that would be better and cheaper for participants.

Source: Planadviser.com, August 2016

Emory Added to List of Colleges Sued Over Retirement Plan Fees

Abstract: Emory University is the latest university to be sued over alleged fiduciary breaches in the management of its DC plans. The lawsuit alleges a breach of fiduciary duties by causing participants in their 403(b) plans to pay excessive recordkeeping, administrative and investment management fees, and by retaining high-cost and poor-performing investment options.

Source: Myajc.com, August 2016

U.S. Employers Targeted by Lawsuits Claiming Excessive Fees in Retirement Plans: Could It Happen in Canada?

Abstract: Legal risks have been emphasized by several lawsuits filed against U.S. employers in the last few months. This article provides a brief update on litigation activity in the U.S. which should give pause to Canadian employers who sponsor capital accumulation plans for their employees.

Source: Employmentandlabour.com, August 2016

Franklin Templeton 401k Participants File Suit for Alleged Breach of Fiduciary Duties

Abstract: A lawsuit was filed against Franklin Resources, Inc.in the U.S. District Court for the Northern District of California. The complaint is brought on behalf of the Franklin Templeton 401k Plan for alleged breach of fiduciary duties by Franklin Resources and Franklin Templeton 401k Retirement Plan Investment Committee.

Source: Businesswire.com, August 2016

ERISA Class Actions Filed Against Higher Education Institutions

Abstract: Several ERISA breach of fiduciary duty class actions involving allegedly excessive retirement plan fees were filed this week against higher education institutions including colleges, universities, and medical schools. The plaintiffs in these cases primarily are current and former participants in section 403(b) retirement plans. These cases allege that plan fiduciaries made unreasonable and imprudent decisions that negatively affect the value of the plaintiff's retirement accounts.

Source: Ballardspahr.com, August 2016

Duke Latest School Snared by Coordinated ERISA Lawsuits

Abstract: Schlichter Bogard & Denton's coordinated attack on the retirement plans of prominent universities hit another school when the firm filed an ERISA class action against Duke University.

Source: Bna.com (registration may be required), August 2016

Three Prominent Universities Sued Over 403(b) Plan Fees

Abstract: Three prominent universities were sued on Tuesday, accused of allowing their employees to be charged excessive fees on their retirement savings. The universities -- the Massachusetts Institute of Technology, New York University and Yale -- each have retirement plans holding more than $3 billion in assets and are being individually sued by a number of their employees in cases seeking class-action status.

Source: Nytimes.com, August 2016

Excessive Fee Litigation Hits Education Sector

Abstract: The law firm of Schlichter, Bogard & Denton has now turned its attention to the education sector, filing separate class action lawsuits against three universities on behalf of over 60,000 employees in their defined contribution retirement plans, both 401k and 403(b).

Source: Ntsa-net.org, August 2016

Allianz Can't Duck ERISA Challenge to Mutual Fund Fees

Abstract: Allianz Asset Management of America couldn't convince a federal judge to dismiss class action claims challenging the allegedly high-fee, in-house mutual funds in its 401k plan.

Source: Bna.com (registration may be required), August 2016

Novant 401k Settlement Expected to Top $100 Million

Abstract: Current and former Novant Health employees will benefit from three times the original financial settlement value from a class-action lawsuit targeting the system's defined compensation retirement plan.

Source: Journalnow.com, August 2016

Edison 401k Case Will Be Reheard by Ninth Circuit

Abstract: The nine-year legal battle over fees and investments in Edison International Inc.'s 401k plan is headed for review by a full panel of appellate court judges.

Source: Bna.com (registration may be required), August 2016

Neuberger Berman Sued for Excessive 401k Fees

Abstract: Neuberger Berman, an investment manager with $246 billion in assets under management, has been sued by a participant in the company's 401k plan for alleged self-dealing, whereby the firm offered a high-fee, poorly performing proprietary fund in the plan for its own profit.

Source: Investmentnews.com (registration may be required), August 2016

Franklin Templeton Sued by Employees for Self-Dealing in 401k plan

Abstract: Franklin Resources has been sued for self-dealing in its own 401k, joining a growing list of similarly situated companies targeted by their employees for excessive retirement plan fees.

Source: Investmentnews.com (registration may be required), August 2016

Retirement Plan Can Mandate Arbitration, Cost-Sharing

Abstract: A federal judge upheld a provision in ETS's retirement plan requiring that claims over plan benefits be submitted to a binding arbitration process in which the claimant and the plan "equally share" in the arbitration costs.

Source: Bna.com (registration may be required), August 2016

District Court Finds Forum Selection Clause Unenforceable in ERISA Action

Abstract: A federal district court in Illinois ruled that a plan's forum selection was unenforceable because it conflicts with ERISA's public policy of providing plaintiffs "ready access to the Federal courts."

Source: Erisapracticecenter.com, August 2016

Fidelity Prevails in ERISA Float Litigation

Abstract: The First Circuit joined the Eighth Circuit in finding that Fidelity's practice of earning overnight "float" interest on the cash paid out to 401k plan participants redeeming shares in mutual funds did not violate ERISA's duty of loyalty or prohibition on self-dealing.

Source: Natlawreview.com, July 2016

Forum Selection Provisions in ERISA Plans

Abstract: In recent years, in addition to substantive changes to 401k plans to increase both the level of participation and the level of contributions, there has been an increased focus on the procedural aspects. The subject of this article is mandatory forum selection clauses, which limit plaintiffs to only one of the three permissible federal venues for ERISA causes of action. Article discusses in detail how courts are divided on the issue of the enforceability of forum selection clauses in ERISA plans.

Source: Wagnerlawgroup.com, July 2016

401k Plans Still in the Crosshairs: New Cases Challenge Plan Fees

Abstract: Now that many of the cases contending that large 401k plans paid fees that were too high have been settled or decided, it would be tempting for sponsors of plans that haven't been sued to breathe a sigh of relief. They should not do so, because litigation continues unabated with new theories and new targets.

Source: Cohenbuckmann.com, July 2016

Avon to Pay $6 Million to Settle Stock Drop Suit

Abstract: The U.S. District Court for the Southern District of New York has preliminarily approved a settlement between Avon Products and participants in its DC retirement plan. The settlement calls for Avon to pay $6.250 million to be placed in a settlement fund. A net settlement fund of approximately $4.345 million will be divided among eligible class members.

Source: Planadviser.com, July 2016

New York Life Accused of Profiting Off Workers' 401ks

Abstract: New York Life Insurance Co. has been sued by employees who claim that one of the company's in-house mutual funds carried needlessly high fees that eroded their retirement savings.

Source: Bna.com (registration may be required), July 2016

Cetera, Plan Sponsor Sued for Excessive Fees

Abstract: For the second time in two months, a small 401k plan is at the center of a lawsuit alleging excessive plan fees. The plan adviser, Cetera Advisor Networks, has been named as a co-defendant in a move experts call a twist of sorts from other 401k litigation.

Source: Investmentnews.com (registration may be required), July 2016

First Circuit Holds "Float" Is Not a Plan Asset

Abstract: In In re: Fidelity ERISA Float Litigation, No. 15-1445 (1st Cir., July 13, 2016), the plaintiffs alleged that Fidelity breached its fiduciary duties because it used float to earn interest for itself, and not to benefit the plan. The district court dismissed the complaint on the defendants' motion to dismiss. The First Circuit, in a decision former Supreme Court Justice Souter wrote as he sat by designation, upheld the dismissal.

Source: Dbr.com, July 2016

Lawyers Ready to Swoop Down on 401k Vultures

Abstract: In a lawsuit filed in San Jose federal court, the attorneys alleged a cornucopia of fiduciary breaches tied to excessive fees, recordkeeping, and the components of the company's target-date funds. The case, and several like it in the past year, may be harbingers of a new cycle of 401k-gone-bad litigation, this time targeting ever smaller plans.

Source: Detroitnews.com, July 2016

Excessive-Fee Suit Targets Checksmart's $25M 401k Plan

Abstract: A participant in Checksmart Financial LLC's 401k plan sued the loan servicing company for allegedly breaching its ERISA fiduciary duties by allowing excessive administrative fees and imprudent investment options in the company's plan.

Source: Bna.com (registration may be required), July 2016

Fidelity Win Highlights Ways Companies Profit From 401ks

Abstract: Fidelity Management Trust Co. and other financial institutions that use creative ways to make money off employee benefit plans have found an increasingly loyal ally in the U.S. Court of Appeals for the First Circuit.

Source: Bna.com (registration may be required), July 2016

Legal Implications of 2016 Trends in the Advisor Community

Abstract: From a legal perspective, what is likely to be coming down the pike for plan advisors? David N. Levine, a principal with the Groom Law Group, sees four business trends with potential legal compliance impacts on advisors.

Source: Napa-net.org, July 2016

Court Finds Nothing Wrong With Fidelity's Use of Float Income

Abstract: The 1st U.S. Circuit Court of Appeals has ruled that "float income" Fidelity retained in the process of making distributions to retirement plan participants is not a plan asset, so Fidelity did not violate its fiduciary duties under ERISA.

Source: Planadviser.com, July 2016

401k Participant Sues Target Over Company Stock

Abstract: Recognizing the new pleading standards set forth in Fifth Third v. Dudenhoeffer, the lawsuit suggests alternative actions plan fiduciaries could have taken rather than continuing to allow investments in company stock.

Source: Planadviser.com, July 2016

Edison Executives Beat ERISA Challenge to Stock Losses

Abstract: Two Edison International Inc. executives convinced a federal judge to dismiss a lawsuit attacking their decision to offer workers Edison stock in the company's 401k plan.

Source: Bna.com (registration may be required), July 2016

Target-Date Twist in Latest 401k Fee Lawsuit

Abstract: In a departure from similar ERISA class action suits filed previously, the complaint says that the fiduciaries breached their duties by imprudently designing and implementing the plan's target-date funds.

Source: 401kspecialistmag.com, July 2016

Delta Employees Sue Fidelity for 'Illegal Kickbacks' From Financial Engines

Abstract: In an ERISA lawsuit that even has attorneys scratching their heads, employees of Delta Air Lines are suing Fidelity for breaching its fiduciary duty in accounts in which it has farmed out the fiduciary portion of the service bundle. The case may turn on whether Fidelity, by acting as recordkeeper and administrator, qualifies as a fiduciary and therefore breached its duty as it accepted Financial Engines' advice fees.

Source: Riabiz.com, July 2016

Disney Retirement Plan Committee Sued Over Sequoia Investments

Abstract: A former Orlando-based Walt Disney Co. employee has sued the committee that deals with workers' retirement plans, saying it made unwise investment decisions. Specifically, the federal lawsuit targets the Disney committee over its investment in the Sequoia Fund, which lost $2 billion after one of its biggest stocks tanked.

Source: Orlandosentinel.com, July 2016

ERISA Litigation Continues a Plaintiff-Friendly Trend

Abstract: An unmistakable trend in the world of employee benefit plan litigation is underway, and that trend is decidedly in favor of plaintiffs. The trend has manifested itself in several ways. Employee benefit plan sponsors, their owners and risk managers, should take note of these trends, which show no signs of reversing.

Source: Truckerhuss.com, July 2016

American Century Employees Sue for Excessive 401k Fees

Abstract: Employees of American Century, parent of asset management firm American Century Investments, have sued over the firm's 401k plan. This is the latest in a string of lawsuits targeting financial services companies for their own retirement plans.

Source: Investmentnews.com (registration may be required), July 2016

ERISA Class Action Targets Fujitsu's 401k Plan Fees

Abstract: A new ERISA class action accuses Fujitsu Technology & Business of America Inc. of breaching its fiduciary duties by designing and administering one of the most expensive large 401k plans in the country.

Source: Bna.com (registration may be required), July 2016

Does Dudenhoeffer Decision Under ERISA Do More Harm Than Good for Stock Drop Plaintiffs?

Abstract: It still remains to be seen precisely just how Dudenhoeffer, now bolstered by Amgen, will affect the trajectory of ERISA stock drop litigation. Authors suggest that the Supreme Court in Amgen seems to have solidified the threshold that the plaintiffs in any given case may need to reach at the pleadings stage in order for their cases to continue. For fiduciaries of plans holding employer stock, Amgen may be viewed as an encouraging development.

Source: Dechert.com, June 2016

$3.8 Million Settlement Struck in Excess Fee Suit

Abstract: Another 401k provider has come to terms with participants of its own plan who alleged fiduciary obligations were violated by putting relatively high-fee in-house investment funds on the plan menu.

Source: Napa-net.org, June 2016

Overpaid Former Plan Participant Found to Be a Fiduciary

Abstract: A federal court said that by not repaying the overpaid funds, the former participant became a fidciary and breached her ERISA fiduciary duties by not returning the funds.

Source: Planadviser.com, June 2016

Great-West Loses Another Round in ERISA Class Action

Abstract: Great-West lost another battle in a lawsuit challenging the money it makes off annuity contracts sold to 401k investors. A federal judge in Colorado certified the case as a class action on behalf of more than 270,000 investors in about 13,600 different retirement plans. The judge also denied Great-West's attempt to block expert testimony on the amount of money at stake in the lawsuit.

Source: Bna.com (registration may be required), June 2016

Plan Fees Still Lawsuit Trigger for Retirement Plan Sponsors

Abstract: The legal landscape continues to be unforgiving for many retirement plan sponsors who find themselves defendants in excess plan fee lawsuits. Plan sponsors can work with their recordkeepers to reverse the negative perception surrounding fees, a fiduciary benchmarking practitioner said.

Source: Bna.com (registration may be required), June 2016

Breach of Fiduciary Duty Class Action Targets Relatively Small 401k Plan

Abstract: A new class action lawsuit filed in the U.S. District Court of Minnesota raises concerns that plan sponsors and fiduciaries of relatively small 401(k) plans may also become targets of 'breach of fiduciary duty' suits.

Source: Haynesboone.com, June 2016

MassMutual Settles 401k Fee Lawsuit for $31MM

Abstract: Massachusetts Mutual will pay nearly $31 million to settle a lawsuit claiming that it mismanaged its 401k plan, according to recently filed court documents.

Source: Bna.com (registration may be required), June 2016

The Recent Wave of ERISA Litigation Is Turning Into a Tsunami

Abstract: In the last six months, the number of ERISA fiduciary breach lawsuits has increased to levels not seen since the fall of 2006. The genesis of this new wave of cases is not clear. The recent cases tend to fall into three categories and provide some insight.

Source: Wagnerlawgroup.com, June 2016

Lehman Brothers Again Found Not Liable in Stock Drop Suit

Abstract: The 2nd Circuit used the same logic in prior decisions to determine plaintiffs had not proven Lehman plan fiduciaries violated the Employee Retirement Income Security Act.

Source: Planadviser.com, June 2016

High-Court Moves Could Change Participant Class-Action Suits

Abstract: The ability of retirement plan participants and institutional investors to pursue ERISA and securities class-action lawsuits could be significantly altered, following two Supreme Court actions that have sent both groups back to the circuit courts to make their respective cases.

Source: Pionline.com, June 2016

How Lawsuits Are Reshaping 401k Plans

Abstract: The rash of excessive fee lawsuits started over a decade ago has picked up with over a dozen filed since September 2015. BNA asked a panel of ERISA lawyers how these suits are reshaping 401k plans and the industry as a whole.

Source: 401ktv.com, June 2016

Two More Groups File Lawsuits Against the DOL Fiduciary Rule

Abstract: The list of lawsuits against the Labor Department got longer as two more industry groups joined three others in taking aim at the fiduciary rule in court. Labor Secretary Thomas Perez has vowed to vigorously defend the rule.

Source: Investmentnews.com (registration may be required), June 2016

Carriers Join Fourth Lawsuit Against DOL Fiduciary Rule

Abstract: The Indexed Annuity Leadership Council filed a fourth lawsuit today against the Department of Labor and Secretary Thomas Perez over its controversial fiduciary rule. It is the first lawsuit featuring carriers as plaintiffs. American Equity Investment Life Insurance is among the four carriers joining IALC in the lawsuit, which was filed in U.S. District Court Northern District of Texas.

Source: Insurancenewsnet.com, June 2016

Uptick in Fee Litigation Reshaping 401k Industry

Abstract: Bloomberg BNA asked employee benefits attorneys how this litigation is reshaping the 401k industry. They pointed to lower industrywide fees and a reluctance by plans to embrace alternative financial strategies as potential side effects. They also predicted that companies would begin looking more closely at fiduciary liability insurance and the possibility of banding together through multiple employer plans.

Source: Bna.com (registration may be required), June 2016

Fiduciaries Face an Alarming Number of Stable Value Fund Lawsuits

Abstract: In the last several months, plaintiffs have filed multiple class action lawsuits against plan sponsors, plan fiduciaries, and stable value fund providers. As a result, plan sponsors and plan fiduciaries may want to evaluate the process they use to decide to invest in stable value funds.

Source: Employeebenefitsblog.com, June 2016

Fidelity 401k Lawsuit Could up Ante for Plan Advisers

Abstract: A lawsuit filed recently against Fidelity Investments, the largest record keeper of DC plans, highlights the growing scrutiny on 401k plan costs and increased need for retirement plan advisers to evaluate all tranches of fees paid to plan providers.

Source: Investmentnews.com (registration may be required), June 2016

Business and Trade Groups Bring First Lawsuits Challenging DOL Fiduciary Rule

Abstract: Several groups representing financial institutions, insurance companies, and other businesses filed two federal lawsuits that seek to strike down the DOL's recently finalized fiduciary rule. As described here, the plaintiffs are alleging that the DOL did not have the regulatory authority to issue the fiduciary rule and related exemptions, and that DOL did not follow the requirements of the Administrative Procedure Act.

Source: Groom.com, June 2016

Challenging the DOL's Authority to Regulate the Annuity Marketplace

Abstract: The second suit challenging the DOL's new fiduciary regulations is a more narrowly targeted action, brought by sellers of fixed annuities and charging that the Department of Labor, for various reasons, overreached when it included insurance agents and this product within the scope of the regulation.

Source: Bostonerisalaw.com, June 2016

Think Only Large Plans Get Sued? Think Again

Abstract: Litigation trends tell us that, for billion dollar 401k plans, it is a matter of when, not if, they will face a participant lawsuit. So when a plan with only 114 active participants and just over $9 million in plan assets was sued on the same grounds as the biggest plans in America, the retirement industry and small employers everywhere were taken by surprise. But should they have been?

Source: Amazonaws.com, June 2016

Second Lawsuit Filed Against Fiduciary Rule

Abstract: Less than 24 hours after the filing of litigation challenging the Labor Department's fiduciary regulation, a second lawsuit was filed June 2. This one, filed in the U.S. District Court for the District of Columbia by the National Association for Fixed Annuities, seeks to "challenge and vacate" the fiduciary rule, with an arguably narrower focus than the lawsuit filed the day before, but making many of the same arguments.

Source: Napa-net.org, June 2016

Small Minnesota 401k Plan Face Class Action Over Excessive Fees

Abstract: Specific allegations include: (a) failure to assess the reasonableness of the investment fees; (b) selecting inappropriate and imprudent mutual fund classes when lower cost institutional share classes were available; and (c) selecting investment options that were unnecessarily expensive relative to industry benchmarks and standards. In addition, the Plaintiffs allege that the Trustees failed to have a process for monitoring the Plan recordkeeper and investment providers, the fees that they charged, the investment classes and the investment options.

Source: Benefitsnotes.com, June 2016

It's On! Litigation Filed Challenging DOL Fiduciary Regulation

Abstract: As anticipated, a number of retirement industry trade groups and the U.S. Chamber of Commerce have taken their case against the Labor Department's fiduciary regulation to the courts.

Source: Napa-net.org, June 2016

Lawsuit Challenges DOL's Fiduciary Rule

Abstract: Retirement industry trade groups filed on June 1st a legal challenge to the Department of Labor's fiduciary rule for brokers and registered investment advisers serving Americans with Individual Retirement Accounts and 401k plans.

Source: 401khelpcenter.com, June 2016

Delta 401k Participants Sue Fidelity Alleging Fiduciary Breach

Abstract: Participants in a Delta Air Lines Inc. 401k plan have sued units of Fidelity Investments, alleging fiduciary breaches in Fidelity's recordkeeping role. The case, Fleming et al. vs. Fidelity Management Trust Co. et al., was filed May 20 in the U.S. District Court in Boston.

Source: Pionline.com, May 2016

Fidelity Faces ERISA Lawsuit Over 401k Brokerage Window

Abstract: A proposed class action accuses Fidelity Management Trust Co. of breaching its ERISA fiduciary duties for allegedly receiving unreasonable compensation through its brokerage window feature and a kickback scheme with an investment advice company.

Source: Bna.com (registration may be required), May 2016

Participants File Self-Dealing ERISA Suit Targeting M&T Bank

Abstract: Participants in M&T Bank retirement plans accuse the company of unfairly promoting its own mutual funds at the expense of plan performance, an increasingly common charge being leveled against providers in the 401k plan marketplace.

Source: Planadviser.com, May 2016

BB&T Faces Lawsuit Over Performance of Its 401k Plan

Abstract: BB&T Corp. and managers of its 401k plan are being sued by participants who allege they are being charged excessive fees for often underperforming proprietary mutual funds. The lawsuit was filed by 12 named plaintiffs -- current and former employees -- in the U.S. District Court for the Middle District of N.C. on behalf of the BB&T Corp. 401k Savings Plan.

Source: Journalnow.com, May 2016

In the Ninth Circuit, a New Burden of Proof for Employers in Benefits Litigation

Abstract: In Barton v. ADT Sec. Servs. Pension Plan, the US Court of Appeals for the Ninth Circuit held that if a pension plan claimant makes a prima facie case that he is entitled to benefits but lacks certain information (that the defendant-employer controls) to substantiate the claim, then the burden shifts to the defendant to produce this information.

Source: Practicallaw.com, April 2016

On Remand, Ninth Circuit Holds Plaintiffs in Tibble v. Edison Forfeited Ongoing Duty to Monitor Argument

Abstract: In Tibble v. Edison Int'l, on remand from the Supreme Court, the US Court of Appeals for the Ninth Circuit held that the plaintiffs forfeited their ongoing duty to monitor argument raised before the Supreme Court by failing to previously raise it before the district court or the Ninth Circuit during their initial appeal.

Source: Practicallaw.com, April 2016

Kodak Fiduciaries Settle Stock-Drop Lawsuit for $9.7M

Abstract: Fiduciaries of the Eastman Kodak Co. employee stock ownership plan and savings investment plan agreed to pay $9.7 million to settle a lawsuit accusing them of breaching their ERISA fiduciary duties by offering imprudent investment options.

Source: Bna.com (registration may be required), April 2016

District Court Applies Dudenhoeffer "More Harm Than Good" Standard to Closely-Held Corporation

Abstract: A federal district court in Mississippi ruled for the first time that the "more harm than good" pleading standard established by the Supreme Court in Fifth Third Bancorp v. Dudenhoeffer applied to employer "stock drop" claims brought against the fiduciaries of plans sponsored by closely-held corporations.

Source: Erisapracticecenter.com, April 2016

Federal Court Finds City National engaged in Self-Dealing in Its 401k

Abstract: In a sweeping decision, a federal judge in Los Angeles has found that City National Corporation violated employee retirement laws when it chose its own staff to administer its employee retirement plan in exchange for millions of dollars of unchecked, unreasonably high compensation.

Source: Dol.gov, April 2016

Edison Workers Forfeited Monitoring Claim, 9th Cir. Rules

Abstract: Edison International workers who sued the company over its 401k fees forfeited their claim that plan fiduciaries failed to monitor these fees, the U.S. Court of Appeals for the Ninth Circuit held.

Source: Bna.com (registration may be required), April 2016

Fidelity, Putnam Lose Early Bids to Dismiss ERISA Lawsuits

Abstract: Both Fidelity Management Trust Co. and Putnam Investments LLC must defend lawsuits accusing them of charging high 401k fees and using unwise investment strategies.

Source: Bna.com (registration may be required), April 2016

DOL Asks for Reversal of Dismissal of Fidelity Float Income Suit

Abstract: In an amicus curiae brief filed with the 1st U.S. Circuit Court of Appeals, the Department of Labor details why it disagrees with a district court's findings.

Source: Planadviser.com, April 2016

Beware the Retroactive QDRO

Abstract: Employers know that they must honor qualified domestic relations orders (QDROs) that assign a portion of a retirement benefit to a participant’s former spouse, known as an alternate payee, when the participant and alternate payee divorce. Those orders by law are not allowed to provide greater benefits than were otherwise provided under the plan. A recent federal district court case ignored that provision when it recognized a retroactive QDRO.

Source: Benefitsnotes.com, April 2016

ERISA Attorney Cautions Employers Against Settling Cases

Abstract: A barrage of ERISA litigation in recent years has elevated "the regulatory burden of maintaining a 401k plan," argues David Levine, a principal at Groom Law Group. But he believes plan sponsors and their advisers can help reverse this troubling trend if enough of them are willing to "go the distance" with these cases and eventually prevail as defendants.

Source: Benefitnews.com, April 2016

Fifth Third Bancorp Settles Stock Class Action For $6M

Abstract: Fifth Third Bancorp will pay $6 million to settle a class action lawsuit brought by employees claiming the company's retirement plan lost tens of millions of dollars by investing in the financial services firm's own stock in 2007 despite its risky subprime lending.

Source: Law360.com, March 2016

Merrill Lynch Cleared of Wrongdoing in Excessive Fee Case

Abstract: The U.S. District Court for the Southern District of New York has found that Merrill Lynch was not acting in a fiduciary capacity under ERISA by presenting a roster of funds from which 401k plan trustees could choose to offer in the plan.

Source: Plansponsor.com, March 2016

BP Deepwater Stock Drop Suit Gets DOL and SEC Consideration

Abstract: The complicated litigation Whitley v. BP PLC is just the latest stock drop case to be impacted by the big-ticket Supreme Court decision in Dudenhoeffer v. Fifth Third Bancorp, this one earning "friend of the court briefs" from both DOL and SEC.

Source: Planadviser.com, March 2016

Merrill Lynch Beats Lawsuit Over Clifford Chance 401k

Abstract: A federal judge dismissed the claims against Merrill Lynch on March 25, after finding that the litigator -- who represented himself without outside counsel -- didn't show that Merrill Lynch acted as a fiduciary under the Employee Retirement Income Security Act when it provided recordkeeping, administrative and investment services to the Clifford Chance plan.

Source: Bna.com (registration may be required), March 2016

Litigation Calls for More Transparency in the Retirement Industry

Abstract: Litigation is taking the retirement industry to task, exposing questionable administration of fiduciary duties and inequalities within fee structures. But updated accounting processes and technology are within reach and could help stem disputes.

Source: Investmentnews.com (registration may be required), March 2016

On Remand, North Carolina District Court Rules for the Fiduciaries in Tatum v. R.J. Reynolds

Abstract: The R.J. Reynolds defendants have again prevailed against allegations that they breached their fiduciary duties by divesting the RJR 401k plan of funds invested in Nabisco stock. Following remand by the Fourth Circuit, the district court held that a hypothetical fiduciary "would" have divested the plan of the Nabisco investments in the same time and manner as defendants.

Source: Natlawreview.com, March 2016

DOL Secures Fiduciary to Distribute Nearly $1M to Participants

Abstract: The U.S. Department of Labor has secured a consent judgment appointing an independent fiduciary to oversee the 401k of a now defunct biopharma company, which failed to take the appropriate steps to terminate its 401k plan..

Source: Planadviser.com, March 2016

Phone Calls to Change Beneficiary, Without Proof of Intent, Fail to Change Designation

Abstract: Both the nature of the noncompliance and the quality of evidence regarding the participant’s intent are relevant to finding substantial compliance. Courts are more likely to find substantial compliance when the evidence of a participant’s intent is provided by a disinterested party than when, as in this case, the individual trying to prove intent would benefit from the change.

Source: Thomsonreuters.com, March 2016

The Latest Excessive Fee Suit...Excessive Participant Mailings

Abstract: A new excessive fee class action has been brought against a large retirement services provider for breaching its fiduciary duties under ERISA by "engaging in expensive duplicative mailings to beneficiaries in retirement plans it administers, unnecessarily mailing individual monthly statements to beneficiaries in separate mailings."

Source: Napa-net.org, March 2016

Supreme Court Clarifies Pleading Standard for Cases Involving Retirement Plan Investments in Employer Stock

Abstract: The U.S. Supreme Court's recent decision in Amgen, Inc. v. Harris makes clear that the Court's heightened pleading standard applies to claims that a fiduciary of a retirement plan that has investments in employer stock should have acted on inside information. Background, procedural history, the decision, and the implications are covered here.

Source: Wsgr.com, March 2016

Recent Employer Stock and Other Fiduciary Litigation

Abstract: This is a 43-page handout from a recent presentation at the 2016 Plan Administrator Skills Workshop, Southwest Benefits Association. Session was conducted by John L. Utz, Esq., Utz & Lattan, LLC.

Source: Utzlattan.com, March 2016

Lawsuit Against IRS Over VCP Administration Advances

Abstract: A lawsuit brought against the IRS over its handling of a company's application to fix errors under the agency's Voluntary Compliance Program (VCP) is advancing.

Source: Asppa.org, March 2016

Stable Value Funds in the Litigation Crosshairs

Abstract: The revenue earned by providers of stable value funds is at issue in a recent class action lawsuit. Article focuses on the complaint's allegations detailing how MassMutual earns revenue from the stable value fund that it provides as an investment option in the Arthur J. Gallagher & Company 401k Savings and Thrift Plan.

Source: Morningstar.com, March 2016

SCOTUS Shuts Down Ninth Circuit's Stock-Drop Decision...Again

Abstract: In Harris v. Amgen, the U.S. Supreme Court recently reversed, for the second time, a decision by the U. S. Court of Appeals for the Ninth Circuit holding that participants in an employee stock ownership plan had validly stated a claim that plan fiduciaries had breached their duty of prudence by continuing to invest ESOP assets in employer stock.

Source: Benefitslawinsider.com, March 2016

On Remand, Plan Fiduciaries' Decision to Divest Nabisco Stock Fund Found Prudent

Abstract: In Tatum v. R.J. Reynolds Tobacco Co., on remand from the US Court of Appeals for the Fourth Circuit, the Middle District of North Carolina applied the standard provided by the Fourth Circuit and held that a hypothetical prudent fiduciary would have decided to divest Nabisco company stock funds from its 401k plan, and that the plan fiduciaries were therefore not personally liable for damages.

Source: Practicallaw.com, February 2016

Fiduciary Decision to Dump Employer Stock Upheld

Abstract: A number of recent stock-drop lawsuits filed against retirement plans have challenged the prudence of continuing to hold company stock, but a federal district court has found that not continuing to do so was a prudent fiduciary decision.

Source: Napa-net.org, February 2016

Allegations of Excessive Fees Predominant in ERISA Litigation

Abstract: An awareness of current ERISA litigation can help ERISA fiduciaries better understand their ERISA-mandated duties and facilitate compliance. Article lists cases that are good reminders of the importance of understanding the rules of ERISA.

Source: Francisinvco.com, February 2016

Has ERISA Litigation Gone Off the Rails?

Abstract: For a decade, plan sponsors and service providers have been in the crosshairs of plaintiffs’ lawyers. But the few cases have been litigated to conclusion in the courts with largely favorable results for plan sponsors and service providers. David Levine suggests something has changed and plan sponsors and service providers now face a dizzying world of contradictions.

Source: Napa-net.org, February 2016

High Court Helps Employers Avoid Frivolous 401k Stock-Drop Suits

Abstract: Based on Dudenhoeffer and Amgen, it is clear that the Supreme Court believes that requiring specific, plausible allegations in the plaintiff's complaint will help avoid frivolous 401(k) stock-drop suits from surviving beyond a motion to dismiss. However, it is likely that future plaintiffs will use the road map provided in those cases to craft complaints that are likelier to survive a motion to dismiss in hopes of reaching a settlement or receiving a favorable judgment.

Source: Dentons.com, February 2016

Chevron Hit With Lawsuit Over 401k Plan Fees

Abstract: Chevron Corp. is the latest major company to be targeted by a class action challenging the fees associated with its 401k plan investments, including fees paid for Vanguard investment products and services.

Source: Bna.com (registration may be required), February 2016

MassMutual Sued Over Stable Value Fund Fees

Abstract: A 401k plan participant has filed suit against Massachusetts Mutual Life Insurance Company, alleging the firm collects tens of millions of dollars annually in undisclosed compensation due to the way it values the crediting rate for stable value funds offered to 401(a) and 403(b) retirement plans.

Source: Planadviser.com, February 2016

401k Custodial Contracts Must Be Disclosed, Judge Says

Abstract: Federal law requires a retirement plan to disclose its custodial agreements with a service provider upon the request of a plan participant, a federal judge determined.

Source: Bna.com (registration may be required), February 2016

Intel Class Action Opens New Frontier in 401k Litigation

Abstract: There is a surge in 401k fee litigation, but a recently filed class action lawsuit by a former employee against Intel and its 401k seeks to improve returns and reduce expenses by significantly restricting the range of assets in which the plan may invest. This 3-page article explores the case and its implications.

Source: Wagnerlawgroup.com, February 2016

Provider of 401k Investment Platform Held Not to Have Fiduciary Liability

Abstract: Earlier this month the U.S. Court of Appeals for the Eighth Circuit decided McCaffree Financial Corp. v. Principal Life Insurance Co., and affirmed the dismissal of all claims against Principal. In McCaffree, Principal had been retained as a provider of the platform for the Plan's investment options and to provide a number of other Plan-related administrative services.

Source: Edechert.com, February 2016

Supreme Court Rejects ERISA Stock-Drop Complaint for Failing Dudenhoeffer Pleading Standards

Abstract: The Supreme Court emphatically reversed the Court of Appeals for the Ninth Circuit in an ERISA stock-drop lawsuit. The Court concluded that the Ninth Circuit failed to properly apply the rigorous pleading standards of Fifth Third Bancorp v. Dudenhoeffer. This decision reiterates that lawsuits against ERISA fiduciaries must be based on detailed factual allegations showing breach of fiduciary duty.

Source: Mcguirewoods.com, January 2016

Oracle Sued by Schlichter After Recent Cases Against Anthem, Reliance Trust, and BB&T

Abstract: Schlichter, Bogard & Denton, the 800-pound Gorilla in this space. The most recent case filed was just last week against Oracle. The case against Anthem has received a lot of attention. But one that has slipped through the cracks a bit is against Reliance Trust and one its clients.

Source: Fraplantools.com, January 2016

Attorney Schlichter Preps New Round of 401k Suits

Abstract: Jerome Schlichter, a trailblazer of the 401k fee litigation that's proliferated in the U.S. over the past decade, seems to be gearing up for another round of class-action complaints. He is riding on a wave of success, broadening growth of similar 401k legal battles and the wind-down of older suits.

Source: Investmentnews.com (registration may be required), January 2016

SCOTUS Again Remands Stock Drop Case

Abstract: The U.S. Supreme Court in a per curiam decision on Monday sent back, for the second time, the 9th U.S. Circuit Court of Appeals' decision reviving a proposed ERISA class action against Amgen Inc. SCOTUS says in its decision that the appellate court failed to properly evaluate the complaint, given a new precedent.

Source: Planadviser.com, January 2016

The Supreme Court Once Again Visits the Employer Stock Dispute

Abstract: In Amgen Inc. v. Harris, the Supreme Court reminded lower courts that it meant what it said when it required plaintiffs to articulate why company stock was an imprudent investment option. The Supreme Court's reversal of the Ninth Circuit's decision in Amgen highlights the struggles courts have had interpreting Dudenhoeffer.

Source: Dorseyerisa.com, January 2016

Another Suit Claims Recordkeeper to be a Fiduciary

Abstract: A new class-action lawsuit that hopes to include thousands of 401k plans in its claim alleges that Empower Retirement earned "disproportionate profits" from revenue-sharing agreements.

Source: Benefitspro.com, January 2016

New Great West Case and Revenue Sharing

Abstract: Add Great West under their Empower Retirement brand name as the latest bundled provider being sued. Great West is being sued for revenue sharing fees from mutual funds as part of their program.

Source: Jdsupra.com, January 2016

Recent Class-Action Surge Ups the Ante for 401k Advice

Abstract: All eyes may be on the DOL's fiduciary rule, but don't forget the courts. Eleven major class-action lawsuits were filed in federal courts around the country against 401k sponsors or providers of retirement products in the fourth quarter of 2015. Retirement plan advisers should make sure they have their bases covered to prevent litigation for fiduciary breaches.

Source: Investmentnews.com (registration may be required), January 2016

Low 401k Fees Aren't a Legal Cure-all

Abstract: The class action lawsuit filed against Anthem Inc. over the fees paid by participants in its 401k plan is a warning to companies sponsoring such plans, and those advising them, that low fees aren't enough to protect against such suits.

Source: Investmentnews.com (registration may be required), January 2016

Is a Qualified Retirement Plan Required to Apply Windsor Retroactively?

Abstract: The IRS has stated that plans are required to treat same-sex marriages in the same manner as opposite-sex marriages effective as of June 26, 2013 (the date of the Windsor decision). The IRS has also noted that plans could be amended to recognize same-sex marriages prior to that date, but such earlier recognition was not required. A recent federal district court decision in the Northern District of California suggests that some courts might have a different view.

Source: Erisapracticecenter.com, January 2016

How Has Supreme Court Decision Affected Litigation Over Company Stock in Retirement Plans?

Abstract: Many observers believed Fifth Third Bancorp v. Dudenhoeffer would significantly increase litigation concerning company stock in retirement plans. That clearly has not happened yet. In tracking this type of litigation since 1990, there have been far fewer lawsuits initiated over stock-drop issues after the Dudenhoeffer ruling than in the years before the decision.

Source: Natlawreview.com, January 2016

JPMorgan Dodges ERISA Liability in Lawsuit

Abstract: JPMorgan Chase once again defeated a lawsuit challenging losses in its 401k and employee stock ownership plans, despite an intervening U.S. Supreme Court decision changing the standard for these types of claims.

Source: Bna.com (registration may be required), January 2016

Excessive Fee Claims Against Principal Dismissed

Abstract: An appellate court has dismissed a plan sponsor's lawsuit claiming its plan provider charged excessive fees to retirement plan participants. Among other things, the 8th Circuit found Principal's adherence to its agreement with a plan sponsor does not imply any fiduciary duty.

Source: Plansponsor.com, January 2016

Anthem Workers File Lawsuit Over 401k Fees In Retirement Plan

Abstract: Anthem's retirement plan is accused in a lawsuit of forcing about 60,000 workers and retirees to pay excessive fees by having to invest in Vanguard Group funds billed as low-cost options.

Source: Ibj.com, January 2016

New 401k Suit Targets Vanguard Fund Fees

Abstract: A new class-action lawsuit is pitting participants in the Anthem Inc. 401(k) plan, a massive plan with more than $5 billion, against plan fiduciaries for an alleged fiduciary breach due to excessive investment management and administrative fees. Anthem's fund lineup is predominantly made up of funds offered by Vanguard, widely recognized as a low-cost fund provider.

Source: Investmentnews.com (registration may be required), January 2016

Anthem Sued Over 401k Fees Paid to Vanguard

Abstract: A proposed class of Anthem Inc. workers accuse the Indiana-based health insurer of loading its 401k plan with high-fee mutual funds and paying excessive fees to the Vanguard entities that service the plan.

Source: Bna.com (registration may be required), January 2016

401k Lawsuit Targets HR Outsourcer and Trustee

Abstract: Emboldened by wins against large 401k plan sponsors like Boeing, Cigna, Caterpillar and Cigna, plaintiff's attorney Jerome Schlichter recently filed suit against an HR outsourcing company and their discretionary trustee claiming breach of fiduciary responsibility.

Source: 401ktv.com, January 2016


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