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Boston College recently settled an ERISA suit, bringing to a close a two-year legal challenge over the management of its retirement plan. In 2022, two former employees alleged that the plan failed to meet fiduciary expectations, citing high fees and questionable investment options. Although the school denies any wrongdoing, the allegations highlight the increasing pressure on institutions to keep their retirement plans cost-effective and prudently managed. 

According to an ERISA lawsuit recently filed against Nordstrom, it’s not just the handbags that come with a hefty price tag — the suit alleges their retirement plan fees were excessive too. Plaintiffs say the luxury retailer overcharged employees for administrative services and misused the forfeiture funds of former workers as well. While the suit is still pending, some of the details have already hit the runway. 

Plaintiffs in a recent ERISA lawsuit against health insurance giant Humana didn’t get the diagnosis they hoped for. Initially filed in 2021, the suit went through multiple attempts at prior dismissal that, early on, looked promising for the plaintiffs. But in May of 2024, a district court judge dismissed the case, citing a lack of sufficient evidence, and declared Humana’s plan fit. Key to the company’s clean bill of health was its frequent benchmarking and solicitation of an RFP, underscoring the importance of robust documentation and proactive measures when it comes to maintaining reasonable fees.

As of March 2023, United Surgical Partners International’s 401(k) plan seemed to have a clean bill of health. A prior lawsuit alleging that the Texas-based ambulatory care company neglected its fiduciary duty by maintaining low-performing, high-cost funds in its 401(k) plan had been dismissed not once, but twice. The second opinion, however, didn’t stick. By April 2024, the company’s legal situation became more uncertain, as a federal appeals court reversed that decision and allowed the suit to proceed. The case illustrates the sometimes-protracted nature of ERISA litigation and highlights the importance of proper benchmarking as one part of a prudent, multi-pronged strategy to help avoid costly and time-consuming court proceedings.

In yet another ERISA-related case, aerospace and defense technology firm L3Harris found itself in the crosshairs of an excessive fee lawsuit. Plaintiffs alleged that the retirement plan’s massive size should have given them the leverage to negotiate more competitive recordkeeping and administrative options, as well as lower fees. The company recently arrived at a settlement, though not before enduring a two-year legal battle. 

Yogi Berra could have called this one — an excessive fee lawsuit against Old Dominion Freight Line is the second such action taken against the transportation company in the span of just one year. The latest suit, filed Sept. 27, 2023, makes allegations similar to the previous case, which a federal judge had dismissed just weeks prior, citing lack of evidence. Plaintiffs accuse the company of opting for pricier share classes over more affordable share classes for the same investments.

Fiduciary responsibility compels plan providers to maintain a safe, fair and prudently managed plan for participants. Advisors should communicate openly to plan sponsors about their responsibilities and risks, which can vary depending on several factors including whether they’re engaged as a 3(21) or 3(38) fiduciary. Here are three types of fiduciary risk that your plan sponsor clients should be aware of, plus some ways to help mitigate them.

Food manufacturing powerhouse Kellogg was recently sued by a former employee, who alleges that the company failed to meet its fiduciary duty in administrating its 401(k) plan. The suit claims that, since at least 2016, Kellogg allowed excessive recordkeeping and managed account fees to accrue and did not take timely action to keep employee-covered fees reasonable. The lawsuit names the company, its board of directors and two separate committees that helped manage the company’s plan.

As published in IRS News Release IR-2021-216, Nov. 4, 2021

Economic downturns aren’t good news for anyone, but for plan sponsors and fiduciaries, they can signal double trouble as the harbinger of looming litigation. After the financial meltdown of 2008, the number of 401(k) complaints filed under the Employee Retirement Income Security Act of 1974 (ERISA) spiked to a high of 107. The number of new lawsuits dwindled to just two filings in 2013 before rising again. Experts fear the COVID-19 crisis could spawn a rash of new class-action 401(k) lawsuits from participants unhappy with the present state of their investments.