ERISA Fee Litigation Update: Settlements Are Up, Legal Hurdles Falling

After nearly a decade of Employee Retirement Income Security Act (ERISA) fee litigation, we can begin to draw conclusions about the law governing these cases, make predictions about the specific issues that are likely to be the focus of litigation going forward, and highlight the practical insurance and process considerations that ERISA plan sponsors and fiduciaries would be wise to consider as they prepare for what lies ahead.

In our "ERISA Fee Litigation Update," we cover:

• The first wave of ERISA fee cases, which challenged longstanding practices in the retirement industry and the second wave of more targeted cases aimed primarily at the fees and expenses financial services companies collected from participants in their own 401(k) plans.
• The US Supreme Court’s May 2015 ruling, which may table the most effective tool for limiting or eliminating fee cases at a preliminary stage in proceedings.
• The next legal battlegrounds in ERISA fee litigation, which could center on certification, whether individualized issues may limit the size of classes or even preclude certification, and defining the scope and contours of the “ongoing duty” to monitor that the Supreme Court has acknowledged.
• Insurance implications of large and growing settlement amounts.
• Tactics for reining in ERISA litigation risk.
• Key components of a process for monitoring retirement plan fees and expenses.

About Marsh’s ERISA Fee Litigation Update

The briefing was prepared by David Tetrick, Jr., partner, and Darren A. Shuler, counsel, at King & Spalding, a Marsh directors and officers (D&O) Panel law firm; Cathy Cummins, managing director in the Marsh FINPRO Practice; and Bill McClain, principal at Mercer, one of the Marsh & McLennan Companies.

Marsh’s D&O Panel Counsel consists of more than 30 top US law firms specializing in securities litigation.

View or download the “ERISA Fee Litigation Update: Settlements Are Up, Legal Hurdles Falling” above.