401(k) Fee Litigation After Tibble v. Edison Int'l: Navigating the Continuing Duty to Monitor Plan Investments

Establishing ERISA Plan Investment Policies to Avoid Fee Challenges and Costly Liability

Recording of a 90-minute CLE webinar with Q&A

Conducted on Thursday, August 6, 2015
Recorded event now available

This CLE webinar will provide benefits counsel with guidance on meeting the continuing duty to monitor ERISA plan investments established by the U.S. Supreme Court in Tibble v. Edison International. The panel will help plan sponsors create investment policies to ensure compliance with ERISA fiduciary requirements and avoid costly fee litigation.


On May 18, 2015, the U.S. Supreme Court held that ERISA plan fiduciaries have a continuing duty to monitor plan investments. The Court’s ruling in Tibble v. Edison International—a case filed by beneficiaries alleging plan fiduciaries chose investments with excessive fees—expands ERISA’s six-year statute of limitations to cover claims arising from investments selected outside the statutory period.

While the court made clear ERISA fiduciaries’ continuing duty to monitor investments—and remove imprudent ones—it failed to outline the scope of that duty, leaving fiduciaries in the dark as to what kind of review will satisfy the standard. Many expect the Court’s ruling to result in an increase in lawsuits challenging fees under ERISA, which authorizes both personal liability and civil penalties for violations.

Listen as our authoritative panel of ERISA attorneys analyzes the Court’s ruling and outlines steps plan sponsors should take to avoid 401(k) fee claims in light of an anticipated increase in plan participant lawsuits resulting from the Court’s relaxation of the six-year statute of limitations on ERISA claims.


  1. ERISA plan fiduciary duties and statute of limitations
  2. DOL fee disclosure requirements
  3. Review of Tibble v. Edison International
  4. Framework for continual monitoring of plan investments


Our panel will discuss these and other key issues:

  • What documentation should plan sponsors maintain to support investment choices?
  • What investment policies should plan fiduciaries have in place to regularly evaluate investments?
  • How should plan fiduciaries balance fund performance and fund expenses?
  • What elements of trust law will courts reviewing ERISA fiduciary duty claims likely apply?


David C. Olstein, Counsel
Skadden Arps Slate Meagher & Flom, New York

Mr. Olstein’s practice focuses on the fiduciary responsibility provisions of ERISA. He has extensive experience advising asset managers on ERISA matters, including compliance with ERISA’s prohibited transaction rules, in connection with the investment of pension plan assets. Mr. Olstein also regularly advises fund sponsors on ERISA matters, including the application of ERISA’s “plan asset” rules, in connection with the establishment and operation of private investment funds.

Stephen D. Rosenberg, Of Counsel
The Wagner Law Group, Boston

Mr. Rosenberg is an experienced ERISA and business disputes lawyer with substantial expertise in ERISA litigation, ERISA governed benefit plans, fiduciary obligations, plan regulation, ESOPs, top-hat plans, and class actions. He has extensive trial experience in federal and state courts and is a frequent author and speaker on a variety of ERISA and employee benefits topics.

Rebecca L. Sczepanski, Counsel
HunterMaclean, Savannah, Ga.

Ms. Sczepanski practices in the areas of ERISA and employee benefits, focusing on all aspects of employee benefits taxation and fiduciary issues. She has assisted a wide variety of clients in establishing and administering employee benefit plans, IRS and DOL audits, and reviewing and negotiating plan documentation and service provider agreements, as well as employee disputes, claim resolution, collective bargaining benefit issues, fiduciary aspects of selecting and monitoring 401(k) and 403(b) plan investment options and fees.


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