ESG stands for “environmental, social and corporate governance”. In very broad strokes, ESG consists of criteria used to measure a company’s socially responsible behavior. Although the contours of ESG are still vague, there are various concrete factors that fall within each of these three categories,...
A “managed account” is a discretionary portfolio management service that makes investment decisions for individual participants within the confines of a 401(k) plan and its fund options. This service is fundamentally computerized advice (aka “robo” advice), but with the help of a personal representative. Managed...
Investments in Cryptocurrencies such as Bitcoin and Ethereum are becoming more and more mainstream. Driven by outrageous returns, and presenting outrageous volatility and risk, both traditional institutional and individual investors have started to dip their toes into this uncharted territory. New guidance from the Department...
Just this month, the Supreme Court issued its much anticipated decision in Northwestern University, the first time the Court has been called upon to examine a lawsuit alleging that a 401(k) plan’s investment and fees were mismanaged. Although a narrow decision, the case was a...
Since the first round of cases were filed in 2006, plaintiffs’ counsel have raised hundreds of lawsuits challenging the prudence of fees and investments in 401(k) plans. One of the critical issues in those cases is what needs to be included in a complaint to...
Fiduciaries are not guarantors of an investment’s success. Rather, all they are asked to do is be diligent, prudent, and loyal in managing an investment’s success—the ultimate success or failure of the investment does not determine whether a fiduciary has properly complied with their duties. ...
Regular followers of ERISA litigation know that the so-called 401(k)/403(b) “fee” cases have dominated the ERISA litigation space ever since the first tranche was filed in 2006. Literally hundreds of cases have been filed against defined contribution plan fiduciaries, resulting in the payment of billions...
After a long, tortured procedural history, Principal Life Insurance Co. won a court trial in the United States District Court for the Southern District of Iowa. The case was initially dismissed in an early procedural motion, but then revived by the Eighth Circuit Court of...
Courts have increasingly been asked to determine whether arbitration agreements executed by employees apply to claims under ERISA. In Cooper v. DST Systems, Inc., the Second Circuit just held that an employer’s breach of fiduciary duty claims alleging poor management of a 401(k) Plan’s assets...
Giant 401(k) service providers like Fidelity have an array of products and fees. Under ERISA’s fiduciary standards, this network of fees and costs have historically given rise to allegations that Fidelity was a fiduciary. Historically, providers like Fidelity have often—but not always—been able to defeat...
In their search for above-market returns, 401(k) Plan fiduciaries may be tempted to look for alternative investment options to the traditional mutual funds and collective trusts that largely dominate 401(k) Plan investments—options such as hedge funds and private equity. Fear of lawsuits might hamper adoption...
The initial critical inquiry in any ERISA fiduciary breach case is whether the defendant is an ERISA fiduciary—often a very complex inquiry. In Central Valley Ag Cooperative v. Daniel Leonard et al., the Eighth Circuit rejected claims against two service provides to an ERISA group...
A California federal court recently dismissed an ERISA class action claiming that the investment options in Intel Corp.’s 401(k) plan were too expensive and unperformed. In reaching that decision, the court followed a framework set forth by the Eighth Circuit in Meiners v. Wells Fargo...
A recent decision by the U.S. District Court for the Northern District of Georgia in Fleming v. Rollins, Inc., 2020 U.S. Dist. LEXIS 227697 (N.D. Ga. Nov. 23, 2020) highlights the disagreement among courts about the scope of ERISA’s requirement that participants exhaust their ERISA...
On October 30, 2020, the U.S. Department of Labor issued its final rule (amending 29 CFR § 2550.404a-1) addressing when pension plan fiduciaries can consider non-pecuniary factors—such as social or environmental benefits of certain investments—when making investment decisions. This rule should help resolve an area...
In one of a growing number of cases involving cybertheft of 401(k) plan assets, a federal judge allowed ERISA claims to proceed against a third-party plan administrator, but dismissed the claims against the plan sponsor. The plaintiff alleged that an imposter obtained her password, logged...
On June 29, 2020, the IRS issued guidance that gives some relief to plan sponsors that amend their safe harbor Section 401(k) or 401(m) plans mid-year to reduce employer safe harbor matching/nonelective contributions due to the COVID-19 pandemic. The IRS notice can be found here.
An interesting twist today in 401(k) fee litigation—an employer filed a lawsuit against the fiduciaries of its own 401(k) plan. McCaffree Financial Corp. is a participating employer in the ADP TotalSource Retirement Savings Plan—a multiemployer plan sponsored by Total Source. McCaffree alleges (on behalf of...
Andrew HollyAndrew represents clients in a wide range of complex civil matters.
Nick BullardNick is a trial associate in Dorsey’s office in Minneapolis. ...
Tim ArendsChair of the Benefits and Compensation practice group, Tim devot...
Shannon BjorklundShannon provides advice and litigation assistance to companies...
Tim GoodmanTim Goodman works with employers on medical plans, retirement pl...
Paul HeiringIn addition to litigating a broad range of ERISA cases, Paul Hei...
Alan IversonAlan is a litigator in Dorsey’s trial group with a focus on cli...
Lincoln LoehrkeLincoln helps clients successfully resolve complex disputes invol...
Stephen P. LuckeSteve represents businesses, employers, insurers, and fiduciarie...
Melinda MaherMelinda is a Partner in the Benefits & Compensation practice group....
Marianne O'BaraMarianne works regularly with numerous non-U.S. companies and t...
Kirsten SchubertKirsten helps clients large and small navigate all aspects of com...
Michael VovesEmployee Benefits, Minneapolis