Practice Management

'Largely Unpredictable' Which Clients Could be Sued by Participants

One attorney specializing in ERISA litigation suggests the pace of lawsuits has increased fairly substantially in the last year, with signs of even more momentum in 2016.  

By John Manganaro | January 07, 2016
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Jamie Fleckner, partner in Goodwin Procter's Litigation Department and chair of its ERISA Litigation Practice, has defended employers in a wide array of complex commercial litigation, with a focus on financial services and products, including investment management.

Beyond employee Retirement Income Security Act (ERISA) suits, he regularly litigates class and derivative actions under the Investment Company Act of 1940, the Securities Exchange Act of 1934, and related federal and state laws.

Even with all that experience Fleckner says he’s downright impressed by the current flow of recent lawsuits, settlements and court decisions in the defined contribution (DC) retirement planning arena.

“I have seen a number of suits filed over the last four months by a wide range of plaintiffs’ firms,” he tells PLANADVISER, “including firms that have not filed many ERISA fee suits in the last few years. I understand that these firms are continuing their marketing efforts looking for additional plan participants to come forward to join litigation, so I don’t see the pace slowing in the near future, unfortunately.”

Fleckner feels the Supreme Court’s decision last year in Tibble v. Edison has emboldened some of these firms to increase the pace with which they are bringing suits. Their motivation is understandable given the huge potential fees that can be collected after a large DC plan settlement. For example, attorneys for plaintiffs in Tussey v. ABB this year collected some $14 million in total in fees and other cost recoupments.

Still, “the message I would give to plan sponsors is to try to remain calm, and not act rashly,” Fleckner says. Keeping in mind the fiduciary fundamentals will go a long way towards keeping a plan safe from suit. Especially important is timely fielding and responding to participants' concerns—it's only after a participant feels spurned in one way or another that he or she will be receptive to the uncomfortable prospect of suing their plan sponsor, and by extension their employer.

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