Jamie Fleckner, a Goodwin Procter partner who heads its ERISA Litigation Practice, recently spoke with Joe Healy of AllianceBernstein on reducing the risk of ERISA-related lawsuits for the investment firm’s DC Reporter publication.
Several large plan sponsors have been sued by plan participants under ERISA, challenging the fees paid for administrative and investment-management services to the plans. According to Fleckner, different courts have interpreted these suits differently, with some dismissing these cases as a matter of law before going to trial and others allowing broad allegations to proceed past the dismissal stage.
With such variability, Fleckner recommends that fiduciaries ensure awareness of their plan responsibilities and document their decision-making process. “The courts generally say that fiduciaries are protected if they’re discharging their obligation to the plan prudently – even if the results don’t turn out to be perfect in hindsight,” said Fleckner. “Fiduciaries need to make sure that they’re engaging in a thoughtful process – that they’re taking steps to make informed and thoughtful decisions.”
Fleckner also discussed other issues which should be considered to mitigate the risk of ERISA-related litigation, including the difference between fiduciary and nonfiduciary action and the prevailing standards requirement, as well as the how these issues affect intermediaries, such as investment consultants.
The complete interview can be found here.