Three Key Issues in the Yale Jury Trial Verdict
By Daniel Aronowitz The Mayer Brown ERISA team led by Nancy Ross deserves to take a victory lap in the complete jury verdict against the Schlichter law firm. Whereas most excessive fee and imprudence cases settle, Mayer Brown is a rare defense law firm willing to take cases to trial to vindicate plan fiduciaries. There […]
The First ESG Breach of Fiduciary Duty Lawsuits
By Daniel Aronowitz The fiduciaries of America’s retirement plans are being dragged into the culture wars over ESG investments. On May 11, the former Secretary of Labor for the Trump Administration sued three New York City governmental retirement plans for divesting billions of dollars from fossil fuel investments. And then on June 2, a Kansas […]
The Barrick Gold Excess Fee Argument: Pleadings Stage and ‘Concrete Discount
By Daniel Aronowitz Key Points (1) Plaintiffs are seeking a pleading standard that allows them to state a share-class excess fee case even when the claim is objectively false. Why? Because they know that any case that proceeds to discovery has a 95%+ chance of a settlement. (2) The key question in the case is […]
Debunking the “Excess” Recordkeeping Fee Claims in the U.S. Bancorp Case
By Daniel Aronowitz Given the near record number of excess fee and investment imprudent cases filed in 2022 [88 by our count], it is not surprising that the pace of filings has been slower so far in 2023 [14 year-to-date], as plaintiff law firms digest the high volume of pending cases. But the reduced number […]
Court Denies Verizon Summary Judgment for Failure to Remove Investment Option After Just 36 Months of Alleged Underperformance
KEY POINTS: (1) The court relied on plaintiff’s expert testimony that it is imprudent for fiduciaries to retain an investment that underperforms for twelve consecutive quarters. This is a warning to all plan fiduciaries that the retention of any investment that is underperforming – even in the short-term – can be second-guessed and lead to […]
The Right to a Jury Trial in ERISA Excess Fee Cases
By Daniel Aronowitz It sounds crazy, but the first jury trial in an ERISA excessive fee case is scheduled for next month. That’s right – barring a last-minute settlement and inevitable scheduling delays, a jury of ordinary citizens from Hartford, Connecticut is going to decide if the Yale University plan fiduciaries committed fiduciary malpractice […]
Seventh Circuit: Northwestern Excess Fee Case Based on Obsolete Facts
By Daniel Aronowitz Key Points The Seventh Circuit held that the Northwestern excess recordkeeping and investment fee claims were plausible under the ERISA plausibility motion to dismiss standard. But the case involves an obsolete fee arrangement that even the Northwestern plan has replaced. Read correctly, the case only finds plausibility for fiduciary imprudence claims […]
The First Circuit Denies Motions to Dismiss in CommonSpirit, Oshkosh-Like Cases
By Daniel Aronowitz Key Points The First Circuit has denied motions to dismiss in three cases with very similar excess recordkeeping and investment claims that were rejected as implausible in the Sixth Circuit’s CommonSpirit case. Two of the cases – Mitre and Boston Children’s Hospital – challenge the same fees and performance of Fidelity […]
The Plaintiff Law Firm That Cried Wolf Eleven Times – The First BlackRock LifePath Case Dismissals with Prejudice
By Daniel Aronowitz Key Points (1) The Eastern District of Virginia dismisses two BlackRock LifePath investment imprudence lawsuits with prejudice. (2) The key finding is that “ERISA simply does not provide a cause of action for fiduciary breaches based solely on a fund participant’s disappointment in the fund’s performance.” ERISA excessive fee lawsuits […]
CentraCare and Barrick Gold – When Identical Investments and Fees Yield Different Judicial Results
By Daniel Aronowitz Key Point Two federal courts faced with identical investment and fee arrangements reach different results as to whether an excess fee share class claim is plausible. The difference is that the Utah court allowed the plan sponsor to rebut false fee claims with the recordkeeping contract and participant account statements showing […]
