Everyone knows I love movies and the memorable lines that come from them. I’ma a big fan of The Dark Knight and the line uttered by Aaron Eckhart as Harvey Dent: You either die a hero or you live long enough to see yourself become the villain”.
As an ERISA attorney who doesn’t litigate and has been very outspoken about the abuses of the 401(k) industry, I see ERISA litigators as a group that has changed the retirement plan industry for the better. Their cases targeting high fees and revenue sharing have brought positive change to the 401(k) business and helped spur the Department of Labor to act with fee disclosure regulations and the new fiduciary rule.
My issue is that I’m concerned that once we see the end of the big 401(k) fee cases (see my earlier post on “Peak 401(k) Fee Litigation”), ERISA litigators are going to make some unpopular litigation decisions such as suing a plan sponsor for using a money market fund when they could have offered a stable value fund (I’m sorry, that actually happened) or sue Vanguard for high fees (sorry, that happened too). You get my point? Eventually, a plan sponsor is going to get sued for paying 5 basis points more than they should.
Like I say, ERISA litigators are going to have to eat too and they’re going to start to become unpopular if they take unpopular causes just so they can get a piece of the action.