On July 16, 2021, the District Court for the Western District of Wisconsin dismissed without prejudice four ERISA claims brought by a former employee alleging mismanagement of Infinity’s defined-contribution 401(k) plan. Plaintiff’s two Fair Labor Standards Act claims were not at issue and remain pending.

Plaintiff alleged that plan fiduciaries violated their fiduciary duties by offering allegedly imprudent, actively managed investment options, and by paying excessive administrative and recordkeeping fees. The court found that plaintiff lacked standing to assert her ERISA claims for two main reasons.

First, plaintiff included a list of the allegedly imprudent funds in her complaint, but Infinity provided evidence that all of her retirement assets were invested in a fund that was not included on the list. Because standing is a question of subject-matter jurisdiction, the court permitted evidence outside the complaint. The court went on to hold that because Infinity’s evidence regarding plaintiff’s investments called her standing into question, the burden shifted to plaintiff to adduce competent proof that standing existed. The court then held that plaintiff failed to meet that burden because she offered no proof that she was injured.

Second, with respect to plaintiff’s excessive fee argument, Infinity provided evidence that the one fund in which plaintiff invested did not pay any recordkeeping fees. The court noted that to survive a motion to dismiss her fee claims, plaintiff needed to provide competent proof that she paid recordkeeping fees. Plaintiff failed to satisfy this burden with mere speculation and reliance on the allegations in her complaint.

The case is Lange v. Infinity Healthcare Physicians, S.C., 20-cv-737-jdp (W.D. Wis. July 16, 2021).

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Photo of Rachel Therese Gulotta Rachel Therese Gulotta

Rachel Therese Gulotta is an associate in the New Orleans, Louisiana, office of Jackson Lewis P.C. Her practice focuses on defending ERISA plans and plan fiduciaries in complex class-actions. Rachel has litigated multi-party health plan claims, employee stock ownership plan claims and 401(k)…

Rachel Therese Gulotta is an associate in the New Orleans, Louisiana, office of Jackson Lewis P.C. Her practice focuses on defending ERISA plans and plan fiduciaries in complex class-actions. Rachel has litigated multi-party health plan claims, employee stock ownership plan claims and 401(k) claims.

In addition to litigating ERISA-based claims, Rachel also represents employers in a wide variety of workplace law matters, including preventive advice and counseling. She has experience practicing in federal and state courts, and before administrative agencies such as the Equal Employment Opportunity Commission and regulatory organizations such as FINRA. She has assisted in single-plaintiff lawsuits, class and collective actions and international employment matters in a range of industries, including healthcare industries, public transportation services, food and beverage and cellular service providers. Rachel has litigated federal and state wage and hour claims, equal employment opportunity claims involving Title VII and the Americans with Disabilities Act, Family and Medical Leave Act claims and Genetic Information Nondiscrimination Act claims.

Prior to joining Jackson Lewis, Rachel clerked with Magistrate Judge Joseph C. Wilkinson, Jr. in the United States District Court for the Eastern District of Louisiana and then practiced employment law with a large, national defense firm. Prior to law school, Rachel taught middle school English in Toulouse, France, and she was the features editor of the Acadiana Lifestyle magazine in New Iberia, Louisiana.

Photo of René E. Thorne René E. Thorne

René E. Thorne is co-leader of the firm’s ERISA Complex Litigation group, and is a principal in the New Orleans, Louisiana, office of Jackson Lewis P.C. René started the New Orleans office and was the managing principal for ten years.

Her national practice…

René E. Thorne is co-leader of the firm’s ERISA Complex Litigation group, and is a principal in the New Orleans, Louisiana, office of Jackson Lewis P.C. René started the New Orleans office and was the managing principal for ten years.

Her national practice covers the full range of complex benefit litigation matters, including representation of employers, plans, plan fiduciaries, third party administrators, and trustees. In that regard, she has handled numerous ERISA class actions alleging breach of fiduciary duty; breach of the duty of loyalty; prohibited transactions; 401(k) plan asset performance, fees, and expense issues; defined benefit plan asset issues, accrual issues, and cut-back issues; cash balance plan issues; ESOP litigation; fiduciary misrepresentation claims; sophisticated preemption issues; executive compensation litigation, both pension and welfare claims; retiree rights litigation; severance plan claims; Section 510 cases; and complex benefit claim cases.