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

Navigating Prohibited Transaction Rules, Fiduciary Duties, 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, August 2, 2023

Recorded event now available

or call 1-800-926-7926

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?


Lichtenstein, Joshua
Joshua A. Lichtenstein

Ropes & Gray

Mr. Lichtenstein is a partner in the tax & benefits department in the firm's New York office and focuses on...  |  Read More

Longo, Amy
Amy Jane Longo

Ropes & Gray

Ms. Longo represents corporations, and their directors and officers in ERISA and other class actions, derivative...  |  Read More

Roy, Amy
Amy D. Roy

Ropes & Gray

Ms. Roy is a partner in the securities litigation group of Ropes & Gray, where she has practiced since 2007. She...  |  Read More

Ward, Daniel V.
Daniel V. Ward

Ropes & Gray

Mr. Ward has a wide range of experience in complex commercial disputes and securities litigation, including trials and...  |  Read More

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