When a 401(k) lawsuit is filed, the first thing plaintiffs\u2019 counsel asks for isn\u2019t your investment returns. It\u2019s your committee minutes.<\/p>\n
That surprises plan sponsors. It shouldn\u2019t.<\/p>\n
ERISA litigation is less about outcomes and more about process. Committee minutes are the written record of that process\u2014or the written proof that there wasn\u2019t one.<\/p>\n
Good minutes don\u2019t need to be novels. But they do need to show:<\/p>\n
\u00b7 What issues were discussed<\/p>\n
\u00b7 What information was reviewed<\/p>\n
\u00b7 What questions were asked<\/p>\n
\u00b7 What decisions were made\u2014and why<\/p>\n
Bad minutes are worse than no minutes. I\u2019ve seen minutes that say things like \u201cfees reviewed and approved\u201d with no context, no benchmarking, and no discussion. That\u2019s not protection\u2014that\u2019s an invitation.<\/p>\n
The goal isn\u2019t to script perfection. It\u2019s to document engagement. Courts understand fiduciaries aren\u2019t infallible. What they won\u2019t forgive is rubber-stamping.<\/p>\n
Here\u2019s what strong minutes avoid:<\/p>\n
\u00b7 Jokes<\/p>\n
\u00b7 Casual language<\/p>\n
\u00b7 Statements suggesting decisions were predetermined<\/p>\n
\u00b7 Overreliance on providers without discussion<\/p>\n
And here\u2019s what they emphasize:<\/p>\n
\u00b7 Independent thinking<\/p>\n
\u00b7 Follow-up questions<\/p>\n
\u00b7 Conflicts disclosed and addressed<\/p>\n
\u00b7 Decisions revisited over time<\/p>\n
Think of committee minutes as your future self\u2019s best friend. Years later, when memories fade and personnel changes, those minutes may be the only evidence that fiduciaries took their role seriously.<\/p>\n
Under ERISA, silence isn\u2019t neutral. It\u2019s suspicious.<\/p>\n
<\/span><\/p>","protected":false},"excerpt":{"rendered":" When a 401(k) lawsuit is filed, the first thing plaintiffs\u2019 counsel asks for isn\u2019t your investment returns. It\u2019s your committee minutes. That surprises plan sponsors. It shouldn\u2019t. ERISA litigation is less about outcomes and more about process. Committee minutes are … Continue reading