ERISA 401(k) Fee Litigation and New Fee Disclosure Regulations

Strategies for Bringing and Defending Fee Claims and Complying with DOL's Disclosure Requirements

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

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Conducted on Thursday, December 9, 2010

Recorded event now available

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Course Materials

This CLE course will provide an update on the recent ERISA 401(k) fee and expense litigation focused on defense and plaintiff strategies used in recent trials and appeals. The panel will also analyze the DOL’s new fee disclosure regulation and steps that plan providers must take to comply with the new requirements.


The recent spate of lawsuits relating to 401(k) plan fees shows no signs of abating. As fee litigation progresses, the defendants, theories and defenses evolve and many key issues remain unsettled. Plus, issues are not always resolved consistently among the circuit courts.

The U.S. Supreme Court’s Jones v. Harris Assocs. decision in March 2010 set out standards to evaluate fees charged to mutual funds by investment advisers. Although it was decided under the Investment Company Act, the ruling provides some insights into defending ERISA excessive fee cases.

Moreover, the DOL's July 2010 interim final regulations under Section 408(b)(2) require certain service providers to disclose to plan fiduciaries information regarding their compensation. The new regulations differ in several significant respects from the proposed regulations issued in 2007.

Listen as our authoritative panel of ERISA plaintiff and defense attorneys analyze the evolving litigation trends in 401(k) fee and expense litigation and provide practitioners with litigation strategies—for both plaintiffs and defendants. The panel will also dicuss the DOL's new fee disclosure regulation and effective compliance measures.



  1. Overview of litigation trends and developments
    1. Resolved litigation
    2. Pending litigation
    3. Jones v. Harris
  2. Defense perspective
    1. Scope of liability
    2. Defenses
    3. Litigation strategies
  3. Plaintiff perspective
    1. Theories of liability
    2. Litigation strategies
  4. DOL’s new fee disclosure regulations


The panel will review these and other key questions:

  • What are the most recent strategies employed by plaintiffs in ERISA 401(k) fee and expense litigation?
  • What lessons can plan fiduciaries learn from the recent ERISA fee litigation?
  • What is the anticipated impact of the Supreme Court's Jones v. Harris ruling on ERISA fee litigation?
  • How do the new DOL fee disclosure regulations differ from the proposed regulations issued in 2007?
  • Who is subject to the new disclosure regulations and what types of plans are covered?


Brian T. Ortelere
Brian T. Ortelere

Morgan Lewis

Mr. Ortelere is a Partner in the New York and Philadelphia offices, and is Co-Chair of the ERISA Litigation Practice at...  |  Read More

Derek W. Loeser
Derek W. Loeser

Keller Rohrback

He practices in the firm's nationally recognized Complex Litigation Group where he focuses on ERISA, securities fraud,...  |  Read More

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