Recent Surge in 401(k) ERISA Class Actions: What's at Issue and How Is It Potentially Impacted by Recent Supreme Court Decision in Intel v. Sulyma and Thole v. U.S. Bank N.A.

Lawsuits against 401(k) plans and service providers are being filed on a near daily basis, and many of them share the same key allegations and claims. This discussion will explain those allegations, and the anticipated key defenses to such claims, as well as provide an overview of how those lawsuits are unfolding procedurally. Moreover, the U.S. Supreme Court has issued rulings in ERISA cases that may impact that strategy for how these cases are litigated.

Specifically, in Intel Corp. v. Sulyma the Supreme Court ruled that merely disclosing 401(k) plan information online or in disclosures is not sufficient to shorten the time that participants have to sue for a breach of fiduciary duty and that "actual knowledge" determines the timeframe for litigation. The Court examined the use of technology as an evidentiary tool, and the relevance of circumstantial evidence--all of which are critical to fiduciary responsibility and the outcome of litigation

In Thole v. U.S. Bank, the Court ruled that plaintiffs lacked standing to sue the plan fiduciaries for mismanagement of funds and self-dealing since the participants continued to receive their fixed pension payments. This substantially limits the circumstances under which pension plan participants can sue when their plan payments are not impacted by the outcome. This decision has potential implications for lawsuits filed against 401(k) plan fiduciaries.

Listen as our panel discusses the impact of the Court's decisions on fiduciaries and plan service providers and offers next steps and best practices for employers, as well as best practices in preventing and litigating claims.

1. Recent wave of 401(k) litigation
   1. Common themes and claims asserted in these lawsuits
   2. Defenses
   3. Procedural posture of litigation
   4. Strategies for avoidance
2. Critical ERISA rules impacting class actions
   1. Intel Corp. v. Sulyma
      1. Statute of limitations
      2. Determining "actual knowledge"
      3. Evidence
      4. Potential impact on discovery and class certification in 401(k) lawsuits
   2. Thole v. U.S. Bank
      1. Fiduciary mismanagement and self-dealing
      2. Standing
      3. Potential impact on 401(k) claims

The panel will review these and other key issues:

• What are the key allegations raised in 401(k) lawsuits, and what are the key defenses and avoidance strategies?
• How does the U.S. Supreme Court ruling in Intel Corp v. Sulyma impact claims and litigation tactics?
• What are the key takeaways of the Court's ruling in Thole v. U.S. Bank and what impact may this decision have on 401(k) litigation?