Insights From Encore Fiduciary on Fiduciary Liability & Other Risk Exposures of Employee Benefit Plans


Insights From Encore Fiduciary on Fiduciary Liability & Other Risk Exposures of Employee Benefit Plans

Retroactive Liability for Plan Forfeitures Violates the Constitutional Principle Against Ex Post Facto Liability

whack a mole game

A fundamental premise of American jurisprudence is that any change in the law is not applied retroactively.  An ex post facto law – named after the Latin phrase for “after the fact” – is a law that retroactively changes the legal consequences of actions that were committed before the enactment of the law.  It is normally applied to criminal or penal laws, but the concept is the same for civil punishments.  Two separate clauses of the Constitution, Article I, Sections 9 and 10, respectively ban enactment of ex post facto laws by the Federal Government and the states. 

In the Federalist No. 44, James Madison asserted that ex post facto laws are contrary to the first principles of the social compact, and to every principle of sound legislation.  In the Federalist No. 84, Alexander Hamilton further justified prohibitions on ex post facto laws by arguing:  “The creation of crimes after the commission of the fact, or . . . punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny.”  The prohibition on ex post facto laws seeks to assure that legislative acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed.  It restricts governmental power by restraining arbitrary and potentially vindictive legislation. 

When the Department of Labor wants to change fiduciary rules – like its new Retirement Security Rule expanding fiduciary status for IRA rollover advice – it is required to follow notice-and-comment rulemaking procedures.  That gives interested parties the opportunity to provide comments, and then to sue to change the regulation once it goes into effect.  You may or may not agree with the new fiduciary rule, but it is not being applied retroactively.  If you are a plan advisor, you now have proper warning that the law has changed, whether you like it or not.  You can protect yourself in advance.

Notwithstanding the long American tradition against retroactive liability, the ERISA trial bar somehow thinks that these rules do not apply to them.  They have filed a spate of new class action lawsuits seeking to impose novel liability against plan sponsors who have followed long-standing rules for plan forfeitures and pension risk transfers.  In this new genre in which the trial bar attempts to set the regulatory agenda for fiduciary liability in America, nine shot-gun lawsuits have been filed attempting to change the law on plan forfeitures – law that has been well-established for over sixty years, before the enactment of ERISA.  

The forfeiture lawsuits are improper attempts to change the law retroactively and impose liability for conduct that complies with well-established law.  And these lawsuits seek to impose liability for settlor or business functions that should not be subject to fiduciary liability.  Federal courts judges will now decide whether they will follow existing law, or change it.  The first judge to decide a motion to dismiss in the forfeiture case against Qualcomm ignored all existing law.  And now conscientious plan sponsors have lost legal certainty on basic retirement plan business decisions.  It is another example in which ERISA fiduciary law has become a liability trap with no safe harbors, even when you conscientiously follow well-established regulatory guidance.

If the law regulating plan forfeitures needs to be changed, it must be by prospective legislation, or notice-and-comment rulemaking by the authorized regulators at the Department or Labor or Treasury – not in shotgun lawsuits in which the same issue is decided in different ways by multiple federal courts judges.  Complying with ERISA was not supposed to be an uncertain crapshoot.  Plan sponsors deserve the right to know the law before they act.  Otherwise, we are allowing the trial bar to create vindictive, retroactive liability on a case-by-case basis without proper warning.  This is in direct violation of the foundational American principle against ex post facto liability.  

The following is a detailed analysis of forfeiture law, how the novel forfeiture lawsuits violate settled law, and how the May 24, 2024 decision allowing the Qualcomm forfeiture breach of fiduciary duty case is flawed.  

The Plan Forfeiture Cases and the Qualcomm Motion to Dismiss Decision

Hayes Pawlenko LLP, a tiny plaintiffs’ firm in California with no previous ERISA experience has filed seven cases against jumbo plan sponsors (Thermo-Fisher, Intuit, Inc., Qualcomm Inc., Clorox Company, Honeywell, Scientific Inc., and TetraTech), alleging that each company had breached their fiduciary duties by applying plan forfeitures to offset future contributions to plan participants instead of reducing fees charged to plan participants.  The Walcheske law firm filed an eighth case against John Muir Health in March 2024, and another plaintiffs’ law firm filed a ninth case on June 11 against Wells Fargo after the motion to dismiss filed by Qualcomm was denied.  The nine cases allege the same common legal theories that plan sponsors should be liable under ERISA for not acting in the best interests of plan participants when they apply plan forfeitures to future contributions instead of reducing expenses of current participants.  The lawsuits make no mention of over sixty years of regulatory authority allowing plan sponsors to do exactly what is now alleged to be illegal and in violation of ERISA fiduciary duties of loyalty.  

Perez-Cruet v. Qualcomm Incorporated, Case No. 23-cv-1890-BEN (filed October 16, 2023 S.D. Cal.) is one of the five initial lawsuits filed by the Hayes Pawlenko Southern California law firm.  The lawsuit alleges that Qualcomm fiduciaries breached their fiduciary duties of loyalty and prudence and violated ERISA’s anti-inurement and prohibited transaction provisions by using forfeiture amounts in the accounts of other non-vested participants to reduce employer contributions to the plan instead of using them to pay plan expenses for current plan participants.  All seven lawsuits allege the same breach of fiduciary duty and prohibited transaction claims, notwithstanding that the complaints acknowledge that each plan sponsor was following the rules of the plan documents governing the plans.

The Qualcomm plan contains a vesting schedule that provides that participants are immediately vested in their own contributions, and generally vest in company contributions over a period of two years.  Under the terms of the plan, a participant who terminates employment before vesting in company contributions “forfeits” those unvested amounts in their account.

Mattel, one of other plan sponsors sued by Hayes Pawlenko, sponsors a similar retirement plan, but with a three-year vesting period.  Under the Mattel plan, Mattel makes employer contributions to participants’ individual accounts.  Participants must work for at least three years to “vest” in those employer contributions, but are 100% vested in their own contributions.  Those who leave sooner than three years forfeit any unvested amounts.  Mattel’s motion to dismiss discloses that Mattel paid more than $105 million to the plan for its employees (net of forfeitures).  The complaint alleges that Mattel should have contributed roughly $7 million more.  

The complaints against Mattel and Qualcomm, like the other cases, allege that both plan sponsors used plan forfeitures to reduce subsequent employer contributions, as both plans permit.  That is, Plaintiffs claim that contributions Qualcomm or Mattel made in prior years for participants who later forfeited those amounts were “reallocated” to other participants accounts, in lieu of new contributions Mattel could have credited to the same accounts.  The participant purporting to represent the entire class of plan participants claims that ERISA required Mattel to use plan forfeitures to pay plan expenses, regardless of how the plan was designed.  The complaints do not allege that any participants ever received less contributions than the plan promised.  Rather, the complaints allege that if Mattel or the other plan sponsors had used forfeitures to pay plan costs instead, the balance of individual participant accounts would be higher because they would have received entirely free administrative services paid for by Mattel or Qualcomm, rather than having to pay a portion of those costs pursuant to the plan terms.  

The Qualcomm complaint is similar to the other six cases.  The complaint alleges seven causes of action, all based on Qualcomm’s use of plan forfeitures.  Plaintiff first claims Qualcomm breached ERISA’s fiduciary duties of loyalty (Count I); breached the fiduciary duty of prudence (Count II); breached ERISA’s anti-inurement provision (Count III); that this use of forfeitures was a prohibited transaction (Counts VI and V); failure to monitor fiduciaries (Count VI); and failure to furnish requested documents (Count VII).  

After the lawsuits were filed, several ERISA lawyers opined publicly that to the extent the cases may have merit, it would be because the plan documents give discretion to plan fiduciaries as to whether to apply plan forfeitures to current participants or future contributions.  But that is not what the Qualcomm court ruled in the first decision addressing motions to dismiss these cases.  In denying Qualcomm’s motion to dismiss on May 24, 2024, the Qualcomm court held that each theory of the breach of fiduciary duty lawsuit was plausible because plan fiduciaries did not act in the best interests of plan participants by choosing to put forfeited plan contributions towards current participants’ accounts rather than defraying administrative expenses in the plan.  The court reasoned that “all Plan participants would have benefited by incurring no administrative expense charge to their accounts.  Instead, all Plan participants had to pay for administrative expenses that could have been reduced to zero had the Defendants chosen to use forfeited contributions in that way.”  Because plan fiduciaries, according to the court, had the duty to defray the expenses of administering the plan, the court held that “Plaintiff plausibly claims that the Defendants breached their fiduciary duty to Plan participants by making a choice that put the employer’s interests above the interests of the Plan participants.”

The decision ignored all existing law in deciding whether the breach of fiduciary duty claim was plausible, including the Department of Treasury regulation applying to plan forfeitures, remarking that there is “no case on point.”  Never mind, as discussed below, there is a Treasury regulation that explicitly allows how Qualcomm handled plan forfeitures.  Instead, the decision was exclusively based on deciding that the “best interests” of plan participants were not served because they did not receive credit against plan expenses for the amount of forfeited contributions.  The entire decision was that the “best interests” of plan participants is receiving more money from the plan sponsor.   

Any participant in an employee benefit plan is obviously better off with freebies or no plan expenses.  But that is not what ERISA means by acting in the “best” or “exclusive” interests of plan participants.  The decision misunderstands the basic difference between settlor and fiduciary actions under ERISA.  It also misunderstands that ERISA allows plan sponsors to decide the amount that plan participants will pay for plan services.  The goal of ERISA is not to “defray plan expenses” so that they are eliminated when possible.  That is just plain wrong.  Rather, fiduciary responsibility under ERISA is to ensure that plan fees are reasonable if assessed against plan participants.  The decision is a complete misinterpretation of ERISA fiduciary liability law.  But more importantly, it ignored current law espoused by the Treasury Department on plan forfeitures as if it didn’t even exist.  [The decision noted the new proposed Treasury regulation when evaluating the prohibited transaction claim, but not that there is an existing, direct regulation on point for plan forfeitures when deciding the breach of fiduciary duty claim]. 

Since before ERISA was enacted in 1974, it has been well settled that plan forfeitures may be applied toward an employer’s future contributions to the plan and reallocated accordingly to other participants.  The Qualcomm court ignored all of this law entirely.  The court missed the reality that the forfeiture lawsuits seek to impose obligations on plan sponsors that are inconsistent with (1) ERISA; (2) applicable Treasury regulations; and (3) written terms of the plan.  The lawsuits and the Qualcomm decision denying the motion to dismiss violate four broad settled legal principles, creating unfair retroactive liability for conscientious plan sponsors that are following the law:

  • SETTLED LEGAL PRINCIPLE #1:  Treasury regulations specifically authorize plan sponsors to use forfeitures to reduce employer contributions.  
  • SETTLED LEGAL PRINCIPLE #2ERISA does not allow participants to sue for greater benefits than the plan provides.  
  • SETTLED LEGAL PRINCIPLE #3Establishing plan benefits and deciding what the plan sponsor and participants will pay respectively for plan benefits are settlor functions that are NOT subject to ERISA fiduciary liability. 
  • SETTLED LEGAL PRINCIPLE #4:  Plan forfeitures are not a prohibited transaction, because there is no transaction with a party-in-interest.


The following is an analysis of all four of these settled legal principles that the forfeitures lawsuits attempt to upend without proper legislation or notice-and-rulemaking by authorized regulators at IRS and DOL.

SETTLED LEGAL PRINCIPLE #1:  Treasury Regulations Specifically Authorize Plan Sponsors like Qualcomm to Use Forfeitures to Reduce Employer Contributions.  

All tax-qualified retirement plans must comply with both ERISA and numerous requirements of the Tax Code.  Adherence to “qualification requirements” under the Tax Code ensures both the deductibility of employer contributions and the tax deferral of employer and employee contributions and earnings.  Like ERISA, the Tax Code mandates that assets in a tax-qualified trust must not be “used for, or diverted to, purposes other than for the exclusive benefit of” the employees and beneficiaries for whom the trust is established.  26 U.S.C. § 401(a)(2).  This is the similar “exclusive purpose” language used in Title I of ERISA.  Therefore a plan would not be tax-qualified under the Tax Code if its allowed for the possibility that “any part of the corpus or income [could] be . . . used for, or diverted to” some other purpose – such as benefiting the employer, as these forfeiture lawsuits allege.  

Notwithstanding the Tax Code’s exclusive-purpose requirement, long-standing Treasury Department regulations, even before ERISA was enacted in 1974, have expressly authorized using forfeitures to reduce or offset future employer contributions.  Indeed, the forfeiture lawsuits seek to upend more than sixty years of settled law and regulatory guidance regarding the use of “forfeited” employer contributions in retirement plans.  26 C.F.R. 1.401-7(a) provides that “forfeitures arising from severance of employment, death, or any other reason [] must not be applied to increase the benefits any employee would otherwise receive under the plan . . .”  The regulation goes on to state that “the amounts so forfeited must be used as soon as possible to reduce the employer’s contributions under the plan.”  (emphasis added).  

Consistent with § 1.401-7(a), both the Treasury Department and Congress have made clear over the ensuing six decades that a defined contribution plan may use forfeitures to provide benefits to other participants and thereby reducing future employer contributions.  For example, a 1971 IRS Revenue Ruling explained that “profit-sharing and stock bonus plans “may provide that forfeitures be used to reduce employer contributions that otherwise would be required under the contribution formula contained in the plan.”  Rev. Ruling 71-313, 1971-2 C.B. 203.  The IRS issued informal guidance in 2010, advising that forfeitures “may be used to pay for a plan’s administrative expenses and/or to reduce employer contributions,” also observing under § 1.401-7(a) that “forfeitures must be used as soon as possible to reduce employer contributions” and that “it may be appropriate to take the non-current year forfeitures and use them as employer contributions for the current plan year.  See  The Internal Revenue Manual also confirms forfeitures in a defined contribution plan may not “revert back to the plan sponsors,” but rather “must be allocated to the remaining participants or used to reduce employer contributions that are otherwise required under the plan.  IRM §, Forfeitures (02-16-2017).  

Qualcomm followed the Treasury plan forfeiture regulation that has been in place for decades.  But is not even mentioned in the complaint.  And the decision denying the motion to dismiss does not mention it either – as if it does not exist.    

The Treasury Department has proposed a new regulation that permits a plan to use forfeitures for one of three purposes:  “(i) to pay plan administrative expenses; (2) to reduce employer contribution under the plan; or (iii) to increase benefits in other participants’ accounts in accordance with the plan.”  88 Fed. Reg. at 12285.  That proposed regulation is intended to replace and expand upon the existing regulation, and, if and when it is finalized, also will permit the very conduct that plaintiff challenged in the lawsuit.  To be clear, the proposed regulation explicitly permits the very conduct challenged in the forfeiture lawsuits.  

The forfeiture amounts are monies that were contributed by Qualcomm to the accounts of unvested participants in the plan that it turns out in hindsight Qualcomm did not owe them.  They are essentially mistakenly paid contributions, and section 1103(c)(2)(A) provides for the return of mistakenly paid contributions to the employer.  There should be nothing unreasonable or imprudent about following the explicit Treasury Department regulation that speaks to the precise issue in question.  

If plans were always required to use forfeitures to reduce plan expenses – instead of (or before) using them to reduce employer contributions – the Treasury regulation that speaks to this precise issue would have said that.  But it does not.  If the regulators wanted to change the long-standing rule, the new regulation would change the rule.  But it didn’t.  

Consequently, to accept the theory of these lawsuits – which the Qualcomm court did – would require a federal court to believe the Treasury Department has both issued and proposed regulations permitting the very conduct the trial bar now says is a per se violation of ERISA.  There was a regulatory process to object during the open notice and comment period when the Treasury Department proposed the new regulation.  The trial bar didn’t file comments.  Instead, they filed implausible lawsuits in an end-run against the regulatory process.  The fact that the Qualcomm court doesn’t understand this key principle doesn’t mean the lawsuits have merit.  The Qualcomm court’s decision is just wrong, and should not be followed in the six other pending lawsuits.

SETTLED LEGAL PRINCIPLE #2ERISA does not allow participants to sue for greater benefits than the plan provides.  The “Greater Benefit” Theory is not supported by ERISA.  

The entire premise of these forfeiture lawsuits is inconsistent with ERISA’s purpose to ensure that retiring employees receive the benefits their employers promise them.  Congress did not legislate what those benefits must be, nor did it mandate how to pay the costs of administering a plan, leaving such corporate decisions to the employer responsible for funding them.  The central theory of the lawsuits is that Qualcomm and other plan sponsors were required to pay more toward a participant’s retirement savings than the respective plans provide.  

This “Greater Benefit Theory” violates fundamental ERISA principles.  ERISA was enacted to ensure retiring employees get the benefits promised.  It did not legislate what those benefits must be.  

Participants in these lawsuits do not allege that any plan participant received anything less than what their plan sponsor committed to them in the plan.  Nor does it allege that Qualcomm, Mattel, or any other plan sponsor violated the terms of the plan by contributing less than it should have, or it failed to fund the plan sufficiently to provide all benefits due.  Plaintiffs also acknowledge that the plan expressly authorizes each plan sponsor like Qualcomm to allocate forfeited employer contributions toward providing benefits to other participants (indirectly reducing the new contributions Qualcomm needed to make in later periods).  The claim is that Qualcomm should be forced to give participants more than the plan states, either by paying costs the plan states should be borne by participants, or granting participants an even greater employer contribution than the plan promised.   

The lawsuits are arguing that companies like Qualcomm should not follow plan language, or the Treasury regulation, to use forfeited contributions for a purpose other than reducing the company’s contributions under the plan so that Qualcomm has to contribute more to the plan.  This is not a fiduciary obligation that is required by any fiduciary duty or any other provision of ERISA.  The Supreme Court explained this bedrock principle in Lockheed Corp. v. Spink, 517 U.S. 882, 887 (1996), when it head that “[n]othing in ERISA requires employers to establish employee benefit plans.  Nor does ERISA mandate what kind of benefits employers must provide if they choose to have such a plan.”  Plan sponsors control the level of benefits – not the government or even a court.  The lawsuits are asking a federal court to order companies to pay even more toward a participant’s retirement than they were promised under the terms of the plan.  

The lawsuits concede that the plan documents authorize the common practice of applying plan forfeiture amounts to future contributions to other plan participants.  Instead, the lawsuits claim that plan sponsors violate ERISA by using forfeitures in this way, instead of using those funds to pay the plan’s administrative costs.  In effect, the lawsuits are asking the court to hold that ERISA requires that plan sponsors pay all of the administrative costs under the plan, even if the plan provides that participants must pay certain expenses under the plan’s express terms.  The complaints are seeking to grant participants greater benefits than the plan provides.  

The ”Greater Benefit” theory is inconsistent with ERISA because employers are under no obligation to offer any benefits at all.  In these voluntary plans, Congress also did not require employers to pay a plan’s administrative expenses.  ERISA does not create any fiduciary duty requiring employers to make pension plans more valuable to participants by paying plan expenses.  Rather, such costs may be – and routinely are – lawfully charged to plan participants.  

ERISA’s concern is that the fiduciaries ensure those costs are “reasonable.”  Hundreds of lawsuits have been filed alleging that the plan’s administrative costs were unreasonable.  The forfeiture lawsuits are different by alleging that Qualcomm and other plan sponsors should have paid all of those fees instead of plan participants.  

SETTLED LEGAL PRINCIPLE #3Establishing Plan Benefits and Deciding What the Plan Sponsor and Participants will Pay Respectively are Settlor functions that are NOT Subject to ERISA Fiduciary Liability. 

As noted in the prior section, Mattel and Qualcomm, as plan sponsors, are entitled to decide what level of benefits the plan provides, how to fund them, and what the plan-related costs the company or the plan participants will bear.  These settlor decisions are not made in a fiduciary capacity and, therefore, are not subject to ERISA’s provisions.  

It is black-letter law that an employer’s voluntary decision to offer a plan, as well as related decisions over its terms, how it will be funded, whether to make employer contributions (and if so, how much to contribute) and whether to charge expenses to the plan (or volunteer, as the employer, to pay them instead) are all corporate decisions made in a settlor capacity, not as a fiduciary.  The Supreme Court has confirmed that “decision[s] regarding the form or structure of the [p]lan benefits and in which amounts” are settlor functions.  Hughes Aircraft v. 525 U.S. at 432,444.  ERISA does not require employers to provide any particular level of benefits, or even to offer a plan at all.  Instead, ERISA serves only to protect whatever commitment an employer makes, once made.  

The threshold requirement for any alleged breach of fiduciary duty or prohibited transaction under ERISA is whether the defendant “was acting as a fiduciary” or performing a fiduciary function when taking the action subject to the complaint.  Plan sponsors are not acting as a fiduciary when deciding how to apply plan forfeitures.  Similarly, plan sponsors are not acting as a fiduciary when deciding that plan participants have to pay certain administrative or investment fees in the plans.  As long as the fees are reasonable, the decision to impose plan fees is exclusively a settlor function that cannot be challenged under ERISA’s fiduciary duties.

The Qualcomm court ignores the critical distinction between settlor and fiduciary functions.  It does not even ask the threshold decision as to whether a forfeiture decision is a fiduciary or settlor function.  The flawed decision demonstrates why complex fiduciary liability deserves its own specialty courts filled with judges who have ERISA expertise.  We have specialty federal courts for government contract and patent claims.  It is time to develop specialty courts for ERISA fiduciary liability, as the Qualcomm decision demonstrates that federal judges lack the experience to handle complex fiduciary liability concepts.

SETTLED LEGAL PRINCIPLE #4:  Plan forfeitures are not a prohibited transaction, because there is no transaction with a third party or party-in-interest.

The current ERISA trial bar playbook is to allege every action by a plan sponsor is a prohibited transaction.  The cynical strategy of labeling everything a prohibited transaction strives to prevent a motion to dismiss – either because a federal judge cannot understand complex prohibited transaction rules and thus will kick the can down the road and avoid a difficult decision at the pleading stage, or by arguing that any exemption to the prohibited transaction is an affirmative defense that cannot be decided at the pleading stage.  Prohibited transaction rules are indeed complex, but plan forfeitures are not prohibited transactions.  Why?  Because you need a transaction with a third party to implicate prohibited transaction rules.  

ERISA’s prohibited transaction rules are not implicated when a plan sponsor makes plan settlor decisions as to how to fund the plan.  There is no “transaction” between a plan and some “party-in-interest” being challenged.  Instead, plaintiffs in the forfeiture cases are alleging that forfeitures should stay in the plan and should be reallocated to different participant accounts within the plan.  Such use of plan assets does not qualify as a “transaction” under ERISA’s prohibited transaction provisions.  Simply put, payment of benefits is not a “transaction” under ERISA section 1106(a).  More specifically, there is no “sale or exchange, or leasing, of any property,” between a plan sponsor like Qualcomm and the plan.  Nor are there plan assets being “transfer[red] to” or “use[d] by” anyone except the plan.  They are being used solely by the plan to provide benefits to participants.  

Federal courts must be more discerning when the trial bar cynically files prohibited transaction claims when the rules do not apply.

The Encore Perspective

Plan sponsors deserve to know what the law is before they make benefit plan decisions.  If plan forfeitures need to be credited to current participants, then fine.  But that is not a decision for the trial bar to make, or for federal judges to decide on a case-by-case basis.  Congress or the IRS and DOL need to make the law clear, which it currently is.  And courts need to respect well-established law if novel claims are invented by the trial bar.

The current whack-a-mole judicial system is allowing the trial bar to set the regulatory agenda through shot-gun litigation, fishing to find a federal judge to impose retroactive liability.  They found a willing judge in the Qualcomm case.  But changing the law by litigation is unfair to conscientious plan sponsors who are trying to follow existing benefits law.  

There is a legislative and regulatory process to change settled law.  It is time to follow it, and stop the litigation abuse of imposing retroactive liability through class action lawsuits.

Disclaimer:  The Fid Guru Blog is intended to provide fiduciary thought leadership and advocacy for the plan sponsor community in areas of complex fiduciary litigation.   The views expressed on The Fid Guru Blog are exclusively those of the author, and all of the content has been created solely in the author’s individual capacity.  It is not affiliated with any other company, and is not intended to represent the views or positions of any policyholder of Encore Fiduciary, or any insurance company to which Encore Fiduciary is affiliated.  Quotations from this site should credit The Fid Guru Blog.  However, this site may not be quoted in any legal brief or any other document to be filed with any Court unless the author has given his written consent in advance.  This blog does not intend to provide legal advice.  You should consult your own attorney in connection with matters affecting your legal interests.

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