401(k) Plan Investments Under Heightened Legal and Regulatory Scrutiny

Reducing Litigation and Enforcement Risks for Plan Fiduciaries and Sponsors

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

Conducted on Thursday, May 6, 2010

Recorded event now available

or call 1-800-926-7926
Course Materials

This CLE course will provide guidance to counsel for retirement plans on actions that plan fiduciaries and sponsors can take to minimize fiduciary liabilities. The panel will update participants on recent developments in 401(k) fees litigation and developing trends in ERISA fiduciary litigation.


The plummeting values of employee retirement funds exposed previously unconsidered investment risks. As a result, ERISA fiduciaries are under increasing scrutiny by the government and plan members for investment-related decisions, including plan fees charged and fund choices offered.

Fees litigation is ongoing, but emerging appellate court rulings are inconsistent. Target-date funds are under intense regulatory scrutiny. The proposed DOL regulation on the investment-advice exemption to the prohibited-transaction rules in individual account plans and IRAs goes into effect May 1.

As litigation over fees persists, plans seek lower cost investment vehicles like collective trusts and exchange-traded funds. Fiduciaries and sponsors must weigh the benefits and disadvantages of these alternative funds and take action to minimize fiduciary liabilities.

Listen as our authoritative panel of legal specialists discusses the litigation trends in retirement plan investments, recent regulatory action, alternative investment vehicles and best practice for fiduciaries and sponsors to minimize fiduciary liabilities.



  1. Litigation trends in retirement plan investments
    1. Excessive fees litigation: emerging appellate court guidance
    2. Funds selection litigation: emerging litigation trends and decisions
    3. Sub-prime and credit crisis litigation: continued litigation
  2. Regulatory developments
    1. DOL 401(k) plan and IRA investment advice regulations
    2. DOL Advisory Opinion 2009-04A: target date funds
    3. DOL positions advanced through amicus briefs
  3. Assessing risks for fiduciaries and plan sponsors in investment choices
    1. Fund vehicles: mutual funds, collective trusts, separate accounts, ETFs
    2. Investment strategies: active management, index funds, company stock


The panel will review these and other key questions:

  • What new risks have emerged for retirement plan fiduciaries as a result of the market downturn?
  • What guidance is provided for plan fiduciaries and sponsors by recent appellate court decisions in fees litigation?
  • What are the benefits and risks of the some of the lower cost alternative investment vehicles used by retirement plans?
  • How can plan fiduciaries and sponsors minimize fiduciary liabilities for fund investment?


Fleckner, James
James O. Fleckner

Goodwin Procter

Mr. Fleckner is a nationally recognized leader in the field of ERISA litigation and heads the firm’s ERISA...  |  Read More

Alison V. Douglass
Alison V. Douglass

Goodwin Procter

She is a partner in the firm’s Litigation Department and a member of its Securities Litigation and SEC...  |  Read More

Hannah B. Widlus
Hannah B. Widlus

Seyfarth Shaw

She regularly advises clients regarding the propriety of plan investments; relations with insurers, mutual funds and...  |  Read More

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