Now here’s an interesting tale, namely the story of the Ninth Circuit’s adoption of the Moench presumption with regard to breach of fiduciary duty claims alleging that fiduciaries erred by allowing a plan to hold too much employer stock or otherwise failing to act to protect participants from the risk of holding that stock as
401(k) Plans
ERISA and the 401(k) turn 30
By Stephen Rosenberg on
Posted in 401(k) Plans, ERISA Seminars and other Resources
I mentioned in a previous post that I am speaking on ERISA issues in a seminar for the Professional Liability Underwriting Society. The presentation is “I Have to Retire on THIS? ERISA and the 401(k) turn 30,” and its tomorrow, Thursday, October 7th, at 2 pm. You can find registration information here if you would…
Moench, the DOL and the Future of Stock Drop Litigation
By Stephen Rosenberg on
I had the pleasure yesterday of presenting the September Advisor Success Webinar for BrightScope, in which I discussed the law and practice of fiduciary liability and exposure in detail. Its for subscribers only and not publicly available, but for those of you in the Boston area who are in the insurance industry, I will…
Private Attorney Generals and ERISA
By Stephen Rosenberg on
Posted in 401(k) Plans, Fiduciaries
Here’s an interesting, although at a minimum somewhat overstated, diatribe against 401(k) plans from Forbes, in which the author complains about four specific risks to participants: greater investment risk than would exist investing outside of such a plan; problems with employer or vendor record keeping and management; the possibility of employer failure; and a lack…
Pay Now and Later: High Plan Fees Pose an Increasing Risk of Fiduciary Exposure
By Stephen Rosenberg on
Posted in 401(k) Plans, Fiduciaries
Chip, chip, chip. No, that’s not the sound of the polar ice caps shedding ice, although I suppose it could well be. It’s the sound of the Fortress Europa that some of the more optimistic lawyers for 401(k) plans thought was being enacted against excessive fee claims – in the wake of cases such…
Can the Deepwater Horizon Spill Sink the Fiduciaries of BP’s 401(k) Plan as Well?
Well, someone thinks so. You can count me, though, as monstrously skeptical that you could tag the fiduciaries of the BP 401(k) plan with breach of fiduciary duty for overexposure to company stock because they failed to expect the Deepwater Horizon explosion and account for it by greater diversification. On the other hand are…
On Named and Functional Fiduciaries
By Stephen Rosenberg on
I have been a fan of Scott Simon’s Morningstar articles on the various fiduciary relationships among those who run plans and those who advise them. This one here is a good, practical, business oriented view of the different forms of fiduciaries – named and functional (or deemed) – in 401(k) and other plans. It is…
Wednesday Potpourri
By Stephen Rosenberg on
Posted in 401(k) Plans
Over the past week or so, several interesting items have crossed my desk, none of which have appeared while I have had time to do them justice with a full blown post. We will do three for Wednesday today – even though there is no alliteration at all to that title, as opposed to five…
Harris, Hecker, Excessive Fees and Marketplace Discipline
By Stephen Rosenberg on
Posted in 401(k) Plans, Fiduciaries
Yesterday, the Supreme Court effectively rejected the idea that mutual fund fees, in the non-ERISA context, are not actionable if consistent with the market as a whole, in response to a Seventh Circuit decision finding that a fund did not pay excessive fees to its investment advisor in light of marketplace discipline (I am oversimplifying…
The Fiduciary Status of Investment Advisors
By Stephen Rosenberg on
Posted in 401(k) Plans, Fiduciaries
I often explain to people that as a litigator, I am typically presented with a knotty, tied up problem, consisting of all the decisions and plan choices that have been made in the past that eventually resulted in litigation, and that I then have to unravel the knot into its constituent pieces, which can then…