For almost a quarter of a century, Jamie Fleckner has chaired the ERISA Litigation practice of his firm, Goodwin, and seen an increasing number of retirement plan facets come under legal fire: forfeitures, managed accounts, stable value funds, pension transfers. In general, Fleckner said the process from ERISA complaint filing to pre-trial discovery to the start of a trial takes an average of four years, but he knows of cases lasting even longer than a decade. All these legal maneuvers take up time and money. While there is no guarantee that a retirement plan can avoid an ERISA lawsuit, Fleckner stressed that fiduciaries can best defend their choices by documenting their work. “If there’s a good process, I think we can reasonably expect a good outcome,” Fleckner said. “If the fees are reasonable for the services provided, then even though the burden [of proof] is on the fiduciary, … that should be eminently provable.”
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