A New York district court recently dismissed, without prejudice, a 401(k) plan participant’s putative class action complaint alleging breaches of fiduciary duty. The plaintiff alleged that the plan fiduciary-defendants breached their duties of prudence and loyalty by failing to properly monitor the plan’s costs. Cunningham v. USI Ins. Servs., LLC, 2022 U.S. Dist. LEXIS 54392 (S.D.N.Y. Mar. 25, 2022).

First, the plaintiff alleged that the defendants allowed the 401(k) plan to pay recordkeeping fees that were nearly three times what an alleged prudent and loyal fiduciary would have paid for similar services. The plaintiff alleged that the fees were paid directly from the plan participants’ accounts, and indirectly paid through revenue sharing with the recordkeeper. The court rejected that claim, finding that the plaintiff failed to allege how she calculated the plan’s direct and indirect fees, and how the sum of those fees was excessive in relation to the specific services provided to the plan as compared to alleged “comparable plans.” Although the plaintiff provided a table of alleged “comparable plans” and their recordkeeping fees, the defendants pointed to the publicly available Form 5500s, which demonstrated that the alleged “comparable plans” offered different services than that of the plan in this case.  As such, the court held that the plaintiff failed to allege sufficient facts to allow for inferences that the “comparable plans” offered the same “basket of services.”

Second, the plaintiff alleged that the defendants breached their duty of loyalty by employing their own subsidiary as the plan’s recordkeeper and allowing the plan to pay the recordkeeper “multiples of the reasonable per-participant amount for the Plan’s [recordkeeping] fees.” The court held that the plaintiff’s duty of loyalty claim was intrinsically dependent on her dismissed breach of prudence claim and therefore dismissed the breach of duty of loyalty claim.

Lastly, like the breach of duty of loyalty claim, the court found the failure to monitor claim depended on the breach of prudence claim. Because a claim for breach of the duty to monitor requires an antecedent breach to be viable and the plaintiff failed to plead a viable breach of prudence or breach of loyalty claim,  the court dismissed the failure to monitor claim as well.

This decision is one of the first following the Supreme Court’s recent opinion addressing the pleading standards in these fee cases. As there have been more than 170 similar class action suits filed around the country in the last few years, this decision may provide a roadmap on how district courts can address complaints alleging breaches of fiduciary duty which fail to explicitly provide the formula used to calculate the alleged imprudent recordkeeping fees.

 

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Photo of Blaine A. Veldhuis Blaine A. Veldhuis

Blaine A. Veldhuis is an associate in the Detroit, Michigan, office of Jackson Lewis P.C. His practice focuses on the defense of complex ERISA litigation and single plaintiff ERISA cases.  He also represents employers in a wide range of employment and labor matters.…

Blaine A. Veldhuis is an associate in the Detroit, Michigan, office of Jackson Lewis P.C. His practice focuses on the defense of complex ERISA litigation and single plaintiff ERISA cases.  He also represents employers in a wide range of employment and labor matters.

Blaine defends ERISA plan fiduciaries, multi-employer plan trustees, and plan administrators providing services to ERISA plans. He defends ERISA 401(k) plan class actions, COBRA class actions, and benefit claims in the retirement and healthcare arena. Blaine has counseled multi-employer welfare and retirement plans, particularly in the construction industry, and has handled withdrawal liability, delinquent contribution, and plan merger matters. With respect to multi-employer plans, his expertise includes compliance-side issues and litigation.

He has significant experience representing defendants and respondents in administrative and governmental investigations, including Internal Revenue Service and U.S. Department of Labor audits, and investigations conducted by the U.S. Department of Justice, Equal Employment Opportunity Commission, Michigan Department of Civil Rights, and the Michigan Department of Licensing and Regulatory Affairs.

Blaine also assists and advises employers on issues related to union activity, and other matters implicating the National Labor Relations Act.

Blaine’s experience includes handling wage and hour claims, discrimination claims, sexual harassment claims, whistleblower claims, commercial litigation, and general employment litigation. Blaine regularly counsels employers in employee relations and discipline and discharge matters, and also assists employers in drafting employment policies and in complying with the federal and state employment laws.

While attending law school, he was a title editor for the University of Detroit Mercy Law Review and participated in the University of Detroit Mercy Veterans Law Clinic. Prior to joining Jackson Lewis, his practice focused on labor and employment matters as an associate at a firm in the Detroit metropolitan area.

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.