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jpod

401(k) Fee Litigation

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There have been many cases brought against employers/plan committees, etc. (i.e., "in-house" parties rather than outside service providers) based on so-called high cost funds in the plan's line-up. Does anyone know if any of those cases involved plans where there was a brokerage window or similar "open architecture" structure? In other words, while X number of funds were available in the plan's primary line-up, participants could invest in hundreds/thousands of other funds and individual securities through the brokerage facility.

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jpod:

Many of the cases you speak of I have written about on my blog, www.fiduciarymattersblog.com. The Groom Law Group also has an excellent resource they publish a couple of times a year which provides summaries of these cases as well. Those would be the two sources I'd point you to.

Although not a proprietary case, Hecker v. Deere addressed your point directly and came down on the side of the employer finding that the allegations in the complaint were not plausible given the number of funds and the range of fees available. However, that holding more or less has been abandoned in subsequent cases as the allegations in the complaints have become more detailed and allegations of self dealing have become commonplace. I would recommend you look at the Braden v. Walmart decision. Also look at decisions in Kruger v. Ameriprise and Nolte v. Cigna. There is also an older cases that is pro defendant called Dupree v. Prudential.

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I don't know of any. But I've seen brokerage accounts that were laden with fees and just as "bad" as some platforms. But...brokerage accounts tend to be used by smaller plans, and it's unlikely that the dollars involved are worth a participant actually filing a lawsuit, and certainly not enough for a lawyer to take it on a class action/contingency basis.

FWIW

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