ERISA Litigation Prevention and Defense: RFPs, Record Keeping, Revenue Sharing, Defending Against Class Actions

ERISA litigation can be complicated and result in exceptionally high costs to defendants even if they win. There are a variety of ERISA claims asserted by plaintiffs’ class action counsel that can be asserted against 403(b), 401(k) and other retirement plan sponsors and other fiduciaries, each having substantive differences and requiring specific approaches in defending against claims.

The current landscape of ERISA litigation shows plaintiff's attorneys expanding their theories of liability to pursue claims against plan sponsors of all sizes. Also, the Department of Labor has a renewed focus on regulatory audits and investigations of advisers. Recent cases have focused on the use of arbitration clauses, self-dealing by providers, revenue sharing, record keeping and investment management arrangements. An analysis of current district and appellate court cases will provide clarity and some guidance to benefits counsel to avoid or be in the best position to defend against claims.

Employee benefits counsel must grasp an understanding of ERISA fiduciary rules, potential liability, defenses and remedies to guard against claims effectively. Developing a prudent process for plan decisions and provider review is essential. Preventative measures to limit claims include developing a good investment policy statement and documented service provider process, amendments to plan documents, benchmarking, RFPs and request for information (RFI) processes, and conducting a critical analysis of fee structures and revenue sharing models and other essential items. With class action suits, counsel must implement tactics focused on dismissing the lawsuit or narrowing the class as early as possible.

Listen as our panel discusses recent court cases and settlements and offers preventive measures to limit participant claims and techniques in defending against class actions.

1. Recent cases and settlements of claims under ERISA
2. Understanding fiduciary duties, exposure, and liability
3. Preventive measures to avoid or limit participant claims
   1. Developing a good investment policy statement
   2. Key terms and provisions of third-party service fee arrangements
   3. Effectively conducting RFPs
   4. Implications of record-keeping fees and revenue sharing
   5. Prohibited transactions
4. Defending against class actions: ERISA litigation strategies
   1. Using the claims review process to your advantage
   2. Standards of review, conflicts of interest and discovery
   3. Substantive defenses and trends in defense pleadings and motions
   4. Analyzing plan remedies and the scope of equitable remedies

The panel will review these and other relevant issues:

• Lessons learned from recent ERISA litigation and settlements
• Essential considerations for third-party management and fee agreements
• Perfecting the use of RFPs
• Understanding ERISA prohibited transaction rules
• The pitfalls of record-keeping fees and revenue sharing arrangements
• Monitoring service providers and fees in the plans
• Defending against class actions and other participant claims
• Getting the right fiduciary liability insurance