A New Jersey federal district court recently granted summary judgment in defendants’ favor in an ERISA excessive fee case accusing Evonik’s 401(k) plan fiduciaries of keeping imprudent investments in the plan and of allowing participants to pay excessive recordkeeping fees. Harris, et al. v. Evonik Corp., et al., No. 20-02202, 2024 U.S. Dist. LEXIS _____ (D.N.J. Jun. 28, 2024).  

At the core of the decision was the court’s finding that Evonik’s fiduciaries followed a rigorous, prudent process for reviewing plan investments and fees. Specifically, with regard to investments, it was undisputed that the fiduciaries reviewed quarterly reports, engaged an investment consultant, used an investment policy statement and watch list to guide decisions, and discussed underperforming funds. With regard to the recordkeeping claim, the court credited the undisputed facts that the fiduciaries annually benchmarked fees though their investment consultant, resulting in several fee reductions during the relevant timeframe. From there, the court held that the “concerns” with the process that plaintiffs raised did not create any issues that require resolution at trial. 

  • Plaintiffs argued that the investment policy statement was impermissibly vague for various reasons, such as a lack of specific time constraints for keeping underperforming funds in the plan. The court found that a “vague” IPS does not negate an otherwise prudent process – as was the case here – and in any event, the alleged gaps in the policy statement were filled by the quarterly investment reviews.
  • Plaintiffs argued that the plan’s “high” total plan cost was evidence that the plan’s investment fees were imprudent. But the court found that it was undisputed that the plan’s total plan cost was higher because the plan offered actively managed funds, which tend to be more expensive, and which are not imprudent simply due to their cost. The court further held that plaintiffs could not challenge investment fees without a fund-by-fund fee analysis, especially because it was undisputed that the total plan cost data included recordkeeping fees and other fees that were not at issue and did not account for the plan’s use of revenue sharing to lower plan costs.  
  • Plaintiffs further argued that the fiduciaries kept two underperforming investments in the plan for too long but, again, the court pointed to the strength of the process and undisputed facts that the fiduciaries discussed the funds’ performance regularly and followed the advice of their consultants. Moreover, simply alleging investment loss is not enough to prove a breach.
  • On the recordkeeping claim, Plaintiffs faulted the fiduciaries for failing to adopt a $23 per participant recordkeeping fee proposed by a competing recordkeeper in a request for information. But it was undisputed that the fiduciaries would have had to switch recordkeepers and change the plan’s default investment option and stable value fund to obtain that rate. The court held a fiduciary does not need to accept such “drastic changes” to a retirement plan simply to negotiate a lower recordkeeping fee. 

Takeaway

This case is a significant win for the plan sponsors and fiduciaries who continue to defend their fiduciary process in similar litigations and serves as a model for fiduciary prudence in investigating and selecting investments and monitoring the plan’s payment of recordkeeping fees.

If you have any questions, the Jackson Lewis ERISA Litigation Practice Group members are available to assist. Please contact a Jackson Lewis ERISA Litigation team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.

Recently, the Second Circuit became the latest circuit refusing to enforce individual arbitration of an ERISA class action, joining the Third, Seventh, and Tenth Circuits. The Ninth Circuit, by contrast, has held that class action ERISA claims brought on behalf of plans are subject to individual arbitration, with relief limited to the individual plaintiff’s claims.

In Cedeno v. Sassson, 100 F.4th 386 (2d Cir. 2024), plan participant Ramon Cedeno sued Argent Trust Company, the trustee of his former employer’s employee stock ownership plan (“ESOP”), alleging that Argent breached its fiduciary duties by causing the ESOP to overpay for company stock. Mr. Cedeno sought relief under ERISA Section 502(a)(2), which allows a plan participant to bring a civil action for appropriate relief under Section 409(a). In turn, Section 409 holds fiduciaries personally liable for any losses to the plan resulting from their breaches.

The Plan document in Cedeno included a mandatory arbitration provision. It stated that participant claims concerning the Plan would be settled by binding arbitration, in an individual capacity (not representative or collective), and that the participant could not seek additional benefits or relief beyond their own claim.

The district court denied the defendants’ motion to compel arbitration, finding the Plan’s arbitration provision unenforceable. It reasoned that Section 502(a)(2) allowed Mr. Cedeno the right to seek plan-wide relief in a representative capacity, but the arbitration provision limited him to individualized relief and waived his statutory rights.

The Second Circuit panel majority (2-1) agreed with the district court. The Circuit Court relied on the “effective vindication doctrine,” which states that provisions in an arbitration agreement that prevent parties from effectively vindicating statutory rights are unenforceable. Because the Second Circuit determined that the Plan’s arbitration clause impermissibly barred plan-wide relief provided under Section 502(a)(2), it held that the Plan ran afoul of the effective vindication doctrine.

Judge Steven J. Menashi wrote the dissent and argued that the Second Circuit should have compelled Mr. Cedeno to individual arbitration. Judge Menashi (1) highlighted that the Federal Arbitration Act directs courts to respect arbitration agreements and parties’ chosen procedures, and (2) called into question the effective vindication doctrine as a principle with uncertain legal status which the Supreme Court has “always declined to apply … whenever litigants have asked it to do so.”

In support, Judge Menashi pointed to the Supreme Court’s 2013 decision in American Express Co. v. Italian Colors Restaurant, 570 U.S. 228 (2013), where the majority opinion declined to apply the effective vindication doctrine and called it a “judge-made exception to the FAA.” Judge Menashi’s dissent has gained traction and echoes concerns raised by other courts. Recently, Sixth Circuit Judge David W. McKeague referenced Judge Menashi’s dissent in Parker v. Tenneco, Inc.  Judge McKeague noted that the key question in Parker was “whether this effective vindication exception to the FAA even exists.” 

The Second Circuit’s decision deepened the debate over whether, under the effective vindication doctrine, benefit plan language requiring claim arbitration impermissibly deprived ERISA claimants of their statutory rights. While the majority held that such provisions cannot withstand the effective vindication doctrine, the dissent outlined a tentative path to forcing Mr. Cedeno into arbitration while suggesting that the doctrine may not even exist.  

Given the conflict between enforcing plan arbitration agreements and safeguarding ERISA’s statutory rights, this issue may soon come before the Supreme Court. Ultimately, as four circuits have now affirmed the unenforceability of plan arbitration provisions which prevent vindication of ERISA’s statutory rights, ERISA plan sponsors and fiduciaries must be deliberate when drafting such plan provisions.

Jackson Lewis continues to monitor further developments regarding enforceability of plan arbitration provisions. If you have any questions, the Jackson Lewis ERISA Litigation Practice Group members are available to assist. Please contact a Jackson Lewis ERISA Litigation team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.

For the last 40 years, judges were required to defer to administrative agencies’ reasonable interpretations of ambiguous federal statutes under Chevron v. Natural Resources Defense Council. The Supreme Court upended that precedent in Friday’s 6-3 ruling in Loper Bright Enters. v. Raimondo, which overturned Chevron and instructs judges to rely on their own judgment in determining whether an agency’s regulation falls within its authority.  

Chevron’s repeal has both immediate and concrete impacts on ERISA’s interpretation, as well as the potential for significant, broader effects.  For example, challengers of the Department of Labor’s ESG Rule permitting fiduciaries to consider environmental, social, and governance factors when selecting plan investments have already pointed to Loper Bright to bolster their argument that the rule oversteps the DOL’s authority and should be invalidated now that Chevron does not require deference to the DOL.  In that pending litigation, which is currently on appeal in the Fifth Circuit, a district court in the Northern District of Texas previously relied on Chevron in upholding the DOL’s interpretation as reasonable.  And, looking more broadly, ERISA litigants often rely on administrative guidance from DOL, Treasury, etc. to interpret ERISA and advocate for their positions.  Without deference to agency guidance where appropriate under Chevron, interpretation of ambiguous ERISA provisions now rests entirely with the judiciary, with the potential for inconsistent interpretation of ERISA’s requirements from jurisdiction to jurisdiction. 

Takeaway

In the immediate wake of Loper Bright, the only certainty is the risk of uncertainty. A potentially chaotic landscape of court decisions across jurisdictions could make it difficult for Plan sponsors and fiduciaries to administer benefit plans, as a practical matter, and to comply with the law. Those responsible for benefit plan design and administration must stay on top of developing cases and know how to reconcile conflicting court decisions around the country, in addition to using the other compliance tools at their disposal — including agency guidance.

If you have any questions, the Jackson Lewis ERISA Litigation Practice Group members are available to assist. Please contact a Jackson Lewis ERISA Litigation team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.

Conflicting orders on motions to dismiss from two California courts foreshadow issues for a new theory of ERISA liability. Employers have faced a recent wave of novel ERISA class actions that challenge the reallocation of defined contribution plan forfeitures.  Such plans often include provisions requiring participants to work for the employer for a defined period before their right to any employer contributions in their account vests. When a participant terminates employment before vesting, their unvested, forfeited employer contributions are swept into the plan’s forfeiture account. The recent lawsuits challenge an employer’s decision to use this account to make later employer contributions rather than defray administrative fees otherwise payable by the participants. Plaintiffs allege that this decision violates ERISA’s fiduciary duties as well as anti-inurement and prohibited transaction rules.

In Perez-Cruet v. Qualcomm Inc., a district court in the Southern District of California recently denied Qualcomm’s motion to dismiss:

  • Plaintiffs’ imprudence claim survived because ERISA’s duty of prudence supersedes plan document instructions. The fact that the plan document granted Qualcomm discretion to use forfeited money to reduce employer contributions or pay administrative expenses was not grounds to dismiss.
  • Plaintiffs’ breach of fiduciary duty claim survived because using forfeitures to make employer contributions benefited Qualcomm, and not plan participants.
  • Plaintiffs’ anti-inurement claim survived dismissal, rejecting defendants’ argument that unvested employer contributions should be treated as mistaken contributions (a statutory exception to the anti-inurement rule).
  • The court sustained plaintiffs’ prohibited transaction claim, finding that unvested employer contributions qualified as plan assets, and thus the employer’s reallocation of those funds for their own benefit was sufficient to state a prohibited transaction claim.

Conversely, in Hutchins v. HP Inc., a district court in the Northern District of California granted defendants’ motion to dismiss without prejudice:

  • This court held that plaintiffs’ theory, that an employer violates ERISA any time it uses forfeited money to make employer contributions rather than defray administrative fees, is both too broad and implausible to state a claim.
  • The court distinguished Perez-Cruet in finding that the forfeited money did not violate ERISA’s anti-inurement rule because the money never left the plan’s trust account and was used to pay benefits to plan participants.
  • And because the forfeited money never left the trust account, defendants’ decision to reallocate it was not a transaction, and plaintiffs’ prohibited transaction claim failed as well.

In both decisions the courts recognized that plaintiffs’ allegations and their decisions were treading into uncharted waters. Given the novelty of these claims, and the specific details of each plan’s operations and terms, different courts are likely to reach disparate outcomes as litigants navigate the first wave of “forfeiture” cases.

If you have any questions, the Jackson Lewis ERISA Litigation Practice Group members are available to assist. Please contact a Jackson Lewis ERISA Litigation team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.

The U.S. Supreme Court recently declined to hear Rose v. PSA Airlines, Inc., Case No. 23-734, which raised the question of whether a remedy known as “surcharge” falls under ERISA’s equitable remedies provision.  Surcharge, in simple terms, resembles monetary damages.  Historically, courts used it to address losses resulting from a trustee’s breach of duty or to prevent unjust enrichment. 

Plaintiff Rose brought the action back in December 2019 on behalf of her deceased son’s estate.  Rose’s complaint alleged that her son’s employer, PSA Airlines, wrongly refused to cover the cost of her son’s medically necessary heart transplant surgery until a month after his death in February 2019.  Rose filed suit under ERISA to recover the monetary value of “benefits” that were denied under her deceased son’s plan.

A federal district court dismissed Rose’s case in September 2021 and she appealed.  In evaluating Rose’s claim, both the district and appellate court analyzed whether the “catch-all” remedial provision under ERISA Section 502(a)(3) allowed for such a financial award.  Both courts held that the money relief sought in the lawsuit was not a “benefit” that could be recovered under the terms of the employer’s health plan.  In other words, ERISA would not authorize monetary compensation when such a remedy was unavailable under the terms of the health plan. 

The Fourth Circuit also clarified that it declined to follow the Supreme Court’s holding in CIGNA Corp. v. Amara, 563 U.S. 421 (2011) as dicta.  In Amara, the Supreme Court noted that certain plaintiffs might be permitted to pursue make-whole, loss-based monetary relief under ERISA Section 502(a)(3) because such relief was analogous to surcharge.  Instead, the Fourth Circuit relied on a later Supreme Court case, Montanile v. Board of Trustees of the Nat’l Elevator Indus. Health Benefits Plan, 577 U.S. 136 (2016), to set aside its own precedent relying on Amara and held that surcharge was unavailable under 502(a)(3).  

The Fourth Circuit’s decision in Rose diverges from seven other circuits (the Second, Fifth, Seventh, Eighth, Ninth, Tenth, and Eleventh), all of which have concluded in published decisions that surcharge is an equitable remedy available under 502(a)(3).  With parties relying on the surcharge remedy following Amara, the Fourth Circuit’s decision may prompt a re-evaluation of surcharge’s viability under ERISA.

Jackson Lewis continues to monitor further developments regarding surcharge as an available equitable remedy.  If you have any questions, the Jackson Lewis ERISA Litigation Practice Group members are available to assist.  Please contact a Jackson Lewis ERISA Litigation team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.

A California federal court recently granted an employer win in an ERISA excessive fee case when it dismissed a proposed class action brought by an ex-employee of Schenker, Inc., a transportation logistics company.  Partida v. Schenker Inc., No. 22-cv-09192-AMO, 2024 U.S. Dist. LEXIS 58297 (N.D. Cal. Mar. 29, 2024).  In the past few years, hundreds of employers have been hit with proposed class actions challenging their “excessive” retirement plan fees.  Plaintiffs have had mixed results in court.  Here, the court reasoned that, although Plaintiff had established standing, the complaint did not state a claim because it contained no specific allegations to support its conclusory assertions.

Similar to other fee class actions, here an ex-employee alleged that Schenker breached its duties of prudence and loyalty under ERISA by: (1) not investigating available lower fee share classes of identical funds; (2) not removing underperforming investments; (3) not evaluating whether an active management strategy benefitted participants; and (4) misrepresenting material information about Plan options and expenses to participants.  In response, Schenker moved to dismiss.

Failure to State a Claim

Schenker’s motion to dismiss asserted that the complaint did not state a valid claim under ERISA because it rested on conclusory assertions unsupported by detailed factual allegations.  For example, Plaintiff conclusorily asserted that the plan paid an excessively high fee for recordkeeping services, that the plan’s funds “significantly underperformed” compared to comparable investments, and that Schenker “selected and retained investment options despite the high cost” compared to comparable investments.  But Plaintiff (1) did not allege facts showing what services the plan’s recordkeeper performed or that the cost of those services was excessive; (2) did not identify cheaper or more successful funds that had the same aims, risks, or potential rewards as the plan’s investments; and (3) did not allege facts showing that Schenker engaged in a flawed process to select or retain funds for the plan.    

The Court agreed with Schenker, holding that Plaintiff failed to state a claim for imprudence because he did not plead any facts showing how the fiduciaries’ process in selecting and monitoring plan investments was flawed, did not plead any facts showing that the plan’s recordkeeping fees were excessive in relation to the services rendered, and did not identify any specific misrepresentations Schenker made.  Likewise, the court held that Plaintiff did not state a claim for disloyalty because the complaint “include[d] only conclusory allegations” that the fiduciaries had acted in their own self-interest to the detriment of the plan, without identifying any specific acts or harms.  Finally, the court held that Plaintiff did not state a claim for failure to monitor fiduciary conduct because he had not properly alleged any underlying breach of fiduciary duty.  

Takeaways

This case serves as another example of a federal court dismissing an ERISA complaint that relies on conclusory assertions unsupported by specific factual allegations.  Courts remain willing to dismiss substantively empty complaints early in the litigation, barring speculative plaintiffs from unsubstantiated “fishing expeditions” in discovery. 

If you have any questions, the Jackson Lewis ERISA Litigation Practice Group members are available to assist.  Please contact a Jackson Lewis ERISA Litigation team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.

A New York federal court recently denied former hospital employees’ request for leave to file a Third Amended Complaint (“TAC”) after dismissing their Second Amended Complaint (“SAC”) for lack of standing and failure to state a claim.  Boyette v. Montefiore Medical Ctr., No. 22-cv-5280 (JGK), 2024 U.S. Dist. LEXIS 63150, at *1 (S.D.N.Y. Apr. 5, 2024). The court reasoned that the proposed amended complaint contained “substantively the same defects” as its predecessor.   

Former Montefiore employees challenged the healthcare center’s management of its 403(b) retirement plan, alleging that plan fiduciaries (1) selected underperforming funds charging excessive management fees; (2) failed to offer the least expensive share classes of funds; and (3) failed to control the plan’s recordkeeping costs.  The court found that Plaintiffs lacked standing and factual support for their claims and dismissed the SAC without prejudice.  Boyette v. Montefiore Med. Ctr., No. 22-cv-5280 (JGK), 2023 U.S. Dist. LEXIS 203442, at *3 (S.D.N.Y. Nov. 13, 2023).

Standing 

First, the court found that Plaintiffs lacked standing to assert recordkeeping claims because they failed to allege they had personally paid excessive recordkeeping fees.  Not all participants in the Montefiore plan paid the same fees because the plan employed an asset-based fee schedule under which recordkeeping fees were charged as a percentage of each participant’s account balance.  Plaintiffs asserted that plan fiduciaries could have negotiated a reasonable recordkeeping fee in the mid-$20 range per participant, but neither of the Named Plaintiffs claimed they personally paid more than this “reasonable” fee.  The court held that because Plaintiffs failed to allege they personally paid unreasonable fees, they had not pleaded any individualized harm and thus lacked standing to bring their claims.

The court found that Plaintiffs lacked standing to bring their investment claims for the same reason.  Because Plaintiffs failed to allege they invested in any of the challenged funds, they had not pleaded individualized harm associated with the funds’ performance, management fees, or higher cost share classes.

Failure to State a Claim

The court then turned to the adequacy of the complaint and found additional grounds to dismiss each claim. 

Relying on its own decision in Singh v. Deloitte LLP, 650 F. Supp. 3d 259 (S.D.N.Y. 2023), the court held that Plaintiffs failed to plausibly allege the Montefiore plan’s recordkeeping fees were excessive “relative to the services rendered.”  The court explained that Plaintiffs’ assertion that all recordkeepers offer the same range of services was no substitute for specific factual allegations.

The court similarly disposed of Plaintiffs’ share class claim, finding that Plaintiffs’ assertion that “[t]here is no good-faith explanation for utilizing high-cost share classes” was undermined by public filings explaining the Montefiore plan’s use of revenue sharing from these investments to offset its expenses.

Finally, the court dismissed Plaintiffs’ investment selection claims because Plaintiffs provided no grounds to infer that the information concerning the funds’ alleged underperformance was available to the fiduciaries at the beginning of the Class Period.

Request for Leave to Amend Denied

Dropping the investment and share class claims, Plaintiffs sought leave to file the TAC to save their recordkeeping claim by alleging a Named Plaintiff paid recordkeeping fees in excess of the “reasonable” range.  But the court held that amending would be futile because Plaintiffs failed to specifically allege the recordkeeping services received by the Montefiore plan and its purported comparators, thereby failing to plead that the Montefiore plan’s fees were unreasonable. 

Takeaways

The initial Boyette decision serves as a reminder for all defendants to scrutinize the standing of Named Plaintiffs in ERISA actions.  And both Boyette decisions swell the ranks of court rulings dismissing claims for breach of fiduciary duty related to recordkeeping fees without specific factual allegations of recordkeeping services. 

If you have any questions, the Jackson Lewis ERISA Litigation Practice Group members are available to assist. Please contact a Jackson Lewis ERISA Litigation team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.

The Fourth Circuit affirmed Aon Hewitt Investment Consulting’s trial victory in a 250,000-member class action suit alleging that Aon breached ERISA’s fiduciary duties.

Aon was initially the Lowe’s 401(k) plan’s investment advisor and later was engaged as the plan’s 3(38) delegated fiduciary. The plaintiffs’ fiduciary breach claims alleged that, after being retained as a delegated fiduciary, Aon transferred plan assets to an Aon fund with an unproven track record that underperformed. Plaintiffs also claimed that Aon’s sales efforts to acquire delegated fiduciary work and their recommendation to streamline the Lowe’s 401(k) plan’s investment menu were self-motivated and not in the plan’s best interest. After a five-day trial, the district court ruled in favor of Aon.

The Fourth Circuit affirmed. Regarding Aon’s sales efforts, the Court held that this conduct was not investment advice and could not violate the duty of loyalty. As for Aon’s recommendation to streamline the plan’s investment menu, the recommendation was not motivated by self-interest: Lowe’s requested the meeting to discuss a potential structural change before Aon decided to pursue becoming a delegated fiduciary of the Lowe’s plan, Aon consistently recommended a plan structure that was less likely to lead to the engagement of a delegated fiduciary, and the plan’s committee chose the structural changes after determining that the structure was more straightforward for Plan participants to understand.   The Court agreed with the district court that Aon may have received an incidental benefit from the engagement, but their recommendations were not motivated by self-interest.

Concerning Aon’s selection and monitoring of their proprietary fund after its retention as a delegated fiduciary, the Court found that Aon engaged in a reasoned decision-making process when reviewing comparable funds and continued monitoring the fund upholding their duty of prudence. The Court reiterated that the duty of prudence is based on “process, not results.”

With this decision, the Fourth Circuit reiterates that, despite many plaintiffs’ successes in earlier litigation stages, a prudent process for selecting and monitoring investments can win the day for fiduciary breach claims. In addition, the opinion is noteworthy for delegated fiduciaries – and the plan sponsors and fiduciaries that engage them – because the Fourth Circuit declined to hold that a plan service provider that is a fiduciary retains that fiduciary status when cross-selling a new product or service to the plan. Other circuits had held that initial contract negotiation and sales efforts were not fiduciary conduct, but applying those conclusions to an existing fiduciary relationship is novel. 

If you have any questions, the Jackson Lewis ERISA Litigation Practice Group members are available to assist. Please contact a Jackson Lewis ERISA Litigation team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.

The Third Circuit refused to enforce a mandatory arbitration clause with a class action waiver in an ESOP, finding that the class action waiver deprived participants of statutory rights. The ESOP plan added the clause at issue in 2017. When plaintiffs filed a putative class action in 2019 asserting fiduciary breach and prohibited transaction claims, Defendants moved to dismiss on the grounds that the plan document required arbitration. The district court refused to enforce the ESOP’s arbitration clause, finding that mandatory arbitration requires consent. There was no evidence that the plaintiff or plan participants consented to add the arbitration provision in the plan document.

Defendants appealed, and the Third Circuit affirmed the district court’s holding on alternative grounds. Specifically, the Third Circuit concluded that the class action waiver within the arbitration agreement was unenforceable because it waived statutory remedies—namely, the right to seek plan-wide relief under ERISA § 502(a)(2). Because the class action waiver was not severable, the Third Circuit concluded the entire provision was void. Notably, the court expressly did not take a position on whether the Plan or its participants must consent to arbitration for such a clause to be valid.

With this decision, the Third Circuit joins the list of circuit courts – the Second, Sixth, Seventh, and Tenth Circuits – refusing to enforce arbitration provisions. In fact, the Ninth Circuit is the only appellate court to have compelled arbitration based on an arbitration clause found in an ERISA plan document.

Jackson Lewis continues to monitor further developments in plan arbitration clauses. If you have any questions, the Jackson Lewis ERISA Litigation Practice Group members are available to assist. Please contact a Jackson Lewis ERISA Litigation team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.

Is a new wave of ERISA fiduciary litigation targeting group health plan sponsors on the horizon? There have already been a few examples of health plan fee cases, such as claims challenging the billing practice between insurers and their subcontractors or challenging commissions paid in connection with multi-employer plans. Recent advertisements by the class action plaintiffs’ firm Schlichter Bogard soliciting current participants in particular companies’ health plans relating to the fees they are being charged in those plans suggest the trend is continuing. 

The Consolidated Appropriations Act of 2021, or CAA, created new disclosure requirements for entities providing brokerage and consulting services to ERISA-covered group health plans. The CAA amended section 408(b)(2) of ERISA to require certain service providers of group health plans to disclose specified information to a plan fiduciary, including the compensation the service provider expects to receive in service of the plan. Additionally, the CAA requires a determination of “reasonableness” for vendor fees and services for healthcare plan providers. Similar disclosure requirements enacted for defined contribution plans in 2012 kicked off the current wave of defined contribution plan fee litigation, and the CAA’s new regulations prompted questions as to whether group health plans are the next targets. 

Schlichter’s advertisements for potential plaintiffs for this new round of litigation are yet another sign of what’s to come. While nothing has been filed yet, and representatives from Schlichter have represented that they are conducting targeted investigations only, group health plan sponsors and fiduciaries should remain vigilant and review their and their service providers’ compliance with section 408(b)(2)’s requirements. 

Jackson Lewis will continue to closely monitor these types of cases and this new trend in ERISA litigation. Please contact a Jackson Lewis ERISA Litigation team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.