Developments in Retirement Plan Investment and Excessive Fee Litigation: A View From the Trenches

Navigating Prohibited Transaction Rules, Fiduciary Duties, and Recent DOL Investigations and Civil Litigation

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

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Conducted on Wednesday, March 2, 2022

Recorded event now available

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Course Materials

This CLE course will discuss the current landscape of retirement plan investment and fee litigation. The discussion will focus on the offering of proprietary investment products and services in financial service company plans, and similar investment and fee litigation arising from the offering of investment products and services in client plans. The panel will also address how plan sponsors and fiduciaries can avoid or mitigate the risk of litigation in this changing legal environment.


Financial services companies typically offer their products--mutual funds, insurance contracts, collective trusts, and delegated investment management services--to their employees and clients in company-sponsored 401(k) and retirement plans. These products and services can create additional risks for sponsors and fiduciaries and raise complicated issues under ERISA's prohibited transaction and fiduciary rules.

These complex issues have recently moved front and center in both the regulatory and litigation arenas as private plaintiffs and the government challenge the prudence and performance of these investments and associated fees and expenses. These challenges raise the specter of expensive litigation and potential liability affecting both financial services companies and their clients.

Listen as our experienced panel of ERISA attorneys discusses the legal issues that can arise from offering proprietary or affiliated products in ERISA-covered retirement plans sponsored by financial services companies. The panel will discuss regulatory and litigation challenges to proprietary funds and explain how plan sponsors and fiduciaries can avoid or mitigate the additional risk these offerings create.



  1. Risks with offering proprietary funds in retirement plans and the varied legal standards
  2. Investment management and 3(38) management services
  3. Breach of fiduciary duty
  4. DOL investigations and class action complaints
  5. Anticipating the next wave of retirement plan litigation


The panel will review these and other key issues:

  • What are the peculiar problems associated with offering proprietary funds and the varied legal standards governing their use?
  • What are the potential risks associated with providing expanded investment management, including delegated 3(38) investment management services, to client plans?
  • How might a finding of a fiduciary breach concerning these products and services impact the provider’s business model?
  • What are the steps that can be taken to avoid problems before they erupt into a DOL investigation and an ERISA class action?
  • Looking ahead, what are the issues the plaintiffs’ bar will focus on in the next wave of retirement plan litigation?


Boran, Christopher
Christopher J. Boran

Morgan, Lewis & Bockius

Mr. Boran represents employers, benefit plan fiduciaries and service providers, and other clients in a wide range of...  |  Read More

Russell, Matthew
Matthew A. Russell

Morgan, Lewis & Bockius

Mr. Russell defends employers from various industries in a range of complex litigation matters. His practice focuses on...  |  Read More

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