Monday, April 11, 2011
Rosenberg on Breach of Fiduciary Duty Claims Involving Excessive Fees after Tibble v. Edison International
Stephen Rosenberg (McCormack Law Firm/Boston ERISA Blog) has posted on SSRN his forthcoming article in the Journal of Pension Benefits: Retreat from the High Water Mark: Breach of Fiduciary Duty Claims Involving Excessive Fees after Tibble v. Edison International.
Here is the abstract:
Boston ERISA attorney Stephen D. Rosenberg reviews the development of the law governing excessive fee litigation under ERISA involving 401(k) plans. Commencing with the United States Court of Appeals for the Seventh Circuit’s highly influential decision in Hecker v. Deere & Co., and continuing though a key federal court decision entered after trial in Tibble v. Edison International, Attorney Rosenberg demonstrates that the careful fact finding after trial in Tibble significantly undercuts much of the reasoning of the Seventh Circuit in its earlier decision in Hecker. Attorney Rosenberg then addresses the manner in which regulatory changes pursued by the Department of Labor under the Obama administration further undercut the approach taken by the Seventh Circuit in Hecker, and are instead consistent with the findings after trial of the federal district court in Tibble. The author addresses the manner in which the key case law and the relevant regulatory developments interact to create a framework that can decrease the likelihood of breach of fiduciary duty suits and of fiduciary liability.
As someone who helped draft an amicus brief in the Hecker decision, I am happy to see this article from Steve and like his approach to this area of the pension law.