KMK Law Complex Litigation Blog

ERISA class action litigation has become a niche practice. Originally, ERISA class actions were tag-along suits in securities cases. In recent years, plaintiffs have sought to certify ERISA class actions on a broad variety of breach of fiduciary duty claims. One such variety was the "excessive fees" claim — a claim that the plan sponsor and/or administrator breached its fiduciary duty to a class of plan participants by allowing unreasonable or excessive fees to be charged to the class on the investments offered through the Plan.

For an excellent summary and discussion of these cases, take some time to read Jo-El J. Meyer's Special Report in the December 4, 2009 BNA Pension & Benefits Daily (Reproduced with permission from Pension & Benefits Daily, 230 PBD (Dec. 4, 2009). Copyright 2009 by The Bureau of National Affairs, Inc.(800-372-1033) www.bna.com)

The author notes that no new "excessive fees" lawsuits appear to have been filed in 2009. That's probably true, but likely in large part because many were waiting for the circuit courts to issue their rulings in the various pending appeals referenced in the report. While the Second and Seventh Circuit rulings may have created a temporary dam to filings, I expect the Eighth Circuit's Braden decision may open the floodgates or at least turn the spigot back on — as we all now wait to see whether the Supreme Court enters the fray.