401(k)/403(b) Plan Litigation Risk Management

Overview

Plaintiffs’ law firms are targeting 401(k)/403(b) plan sponsors in a wave of lawsuits, alleging overcharging of fees and inappropriate fund selection. These firms have also focused on investment management businesses that include their own proprietary funds in their 401(k)/403(b) plans, with claims alleging that the businesses are inappropriately favoring their own proprietary funds in the plans. Ropes & Gray can help your business avoid being the target of one of these lawsuits.

Ropes & Gray has a dedicated cross-practice team of attorneys, benefits consultants and analysts with a track record of thoughtfully managing 401(k)/403(b) plan issues and mitigating risk. We actively track factual and legal developments, including new complaints, emerging legal issues, significant decisions and noteworthy settlements. In the event of a lawsuit, our award-winning litigation team has the knowledge and experience to successfully defend your business.

Proactive Audit

We offer a diagnostic review program that examines historic data to help businesses pinpoint their potential exposure to these claims. We have also developed a qualitative tool for assessing plan governance practices to help identify process deficiencies that may form all or part of a claim. The result would be an assessment of the plan’s risk profile, including identifying and recom­mending ways to remediate potential issues before costly litigation arises.

Litigation

If your organization is sued, you can rely on Ropes & Gray’s team of more than 400 litigators with direct experience dealing with complex cases, including those involving fees charged by funds. We have our fin­ger on the pulse of the 401(k)/403(b) plan industry and are closely tracking developments in these cases.

We have represented clients in some of the most signifi­cant securities law matters, including those related to the timing of regulatory disclosures. In addition to our breadth of experience defending our clients in litigation, we have equally strong experience from both the legal and consulting sides, advising our clients on best practices in setting up and maintaining a robust retirement plan governance structure.

Most recently, we filed an amicus brief in the U.S. Supreme Court on behalf of the Investment Company Institute in support of the Seventh Circuit’s decision to dismiss an alleged breach of ERISA’s duty of prudence in the Northwestern University 403(b) plan case.