A Deep Dive into the Dish Network Excess Fee Decision

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By Daniel Aronowitz   Key Points (1) The Court does not allow the defense to prove with participant account statements at the motion to dismiss stage that active plan participants paid nothing in recordkeeping fees, but finds the comparisons to eleven other random plans “inapt.” (2) The court follows the Sixth Circuit in CommonSpirit to […]

The Fluor Court Sets a High Bar for Investment Imprudence Claims

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By Daniel Aronowitz   Key Points (1) A complete and diligent fiduciary process can result in underperformance – fiduciary prudence is judged, even at the motion to dismiss stage, based on process and not results. (2) This is the second court to dismiss (without prejudice) the dubious Miller Shah investment imprudence claims that BlackRock LifePath […]

The Key Fiduciary Liability Storylines of 2022

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By Daniel Aronowitz The risk environment for fiduciaries of America’s employee benefit plans continues to heighten, as creative and enterprising plaintiff lawyers discover new ways to engineer fiduciary risk for plan fiduciaries in America’s judicial system.  This past year, politicians and regulators have added further uncertainty and risk for plan fiduciaries.  The following is a […]

Divane v. Northwestern: Is Good Faith Enough for Plan Fiduciaries?

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By Daniel Aronowitz The Seventh Circuit Court of Appeals heard oral argument in the remanded Divane v. Northwestern excessive fee case on the morning of November 29.  The Seventh Circuit panel was skeptical of the excessive fee claims, and especially concerned that the lawsuit was “Monday-morning quarterbacking” of plan fiduciaries who had revamped the plan […]

A Deep Dive into the Hy-Vee Excessive Fee Case

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By Daniel Aronowitz Iowa Court in the Hy-Vee Case Calls Out Credibility of Defense “Playbook” of Filing Indiscriminate Motions to Dismiss in Every Excessive Fee Case Plan sponsors have had good recent success in excessive fee and performance lawsuits, with three federal circuit courts of appeal upholding motions to dismiss.  But before we start reaching […]

Common Myths of Cyber Insurance for Employee Benefit Plans

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Cyber insurance is a critical component of the cyber security risk management program necessary to protect employee benefit plans and participant retirement assets, but it is largely misunderstood.  To wit, PLANSPONSOR has detailed an October 5 panel hosted by the National Institute of Retirement Security on how plan sponsors can combat cybercrime.  How Plan Sponsors […]

Colgate Recordkeeper’s Liability in Account Theft Search

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By now, most of us have heard that a plan participant in the Colgate-Palmolive 401k plan suffered a cyber theft of her entire account balance, and sued the plan fiduciaries, the recordkeeper, and the bank custodian.  Cyber theft of retirement plan assets is a common occurrence, but most cases are resolved when the recordkeeper restores […]

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