New Cases Added to the ERISA Litigation Index – May 2013

Since the launch of the ERISA Litigation Index, the response from the industry at large has been overwhelming. We sincerely appreciate the messages of support, as well as the numerous suggestions for additional cases.

Here is a summary of the cases added in the last week:

Abbott v. Lockheed Martin Corporation – Southern District of Illinois

This is one of the original excessive fee cases filed by Schlichter Bogard & Denton on September 11, 2006.
Issues outstanding in the case are:

(1) whether excessive fees paid by the plans provide a basis for plaintiffs’ fiduciary breach claim;
(2) whether the Stable Value Fund (“SVF”) was properly disclosed to plan participants and was a prudent investment option for them; and
(3) whether the Company Stock Funds (“CSF”) were a prudent investment option for plan participants.

On September 24, 2012, the district court granted class certification of the plaintiffs’ excessive fees claim, denied class certification for plaintiffs’ SVF claim, and partially granted class certification of plaintiffs’ claim regarding the CSF. A copy of the order can be found here.

Plaintiffs filed an interlocutory Rule 23(f) appeal to the 7th Circuit Court of Appeals, which they allowed to be heard. Briefing by the parties has been completed and oral arguments are set before the 7th Circuit on May 29, 2013. The decision by the 7th Circuit could have wide ranging ramifications for ERISA cases seeking class certification filed in that circuit, and potentially other circuits that follow the 7th Circuit’s lead.


Healthcare Strategies v. ING Life Insurance and Annuity Co. – District of Connecticut

Plaintiff Healthcare Strategies, Inc., as the plan administrator of two 401(k) plans, brought this action on behalf of itself and other similarly situated plans against ING Life Insurance and Annuity Company (“ILIAC”). A copy of the amended complaint can be found here. The plaintiff alleges that

(1) ILIAC has included certain mutual funds as investment options based on the funds’ revenue sharing payments to ILIAC rather than the funds’ potential to benefit the plans,

(2) ILIAC’s receipt of revenue sharing payments constitute prohibited transactions under ERISA 406(b)(3), and

(3) The fees charged by ILIAC to the plans do not bear a meaningful relationship to the cost of the services provided, and they thus constitute excessive compensation to ILIAC, and

(4) By taking as its compensation the spread between the guaranteed payment and the investment performance of assets in fixed accounts and guaranteed accumulation accounts, ILIAC has retained excessive compensation and engaged in self-dealing.

On January 19, 2012, the district court partially granted ILIAC’s motion to dismiss, striking allegations related to the fixed accounts and guaranteed accumulations accounts. A copy of the order can be found here.

On September 27, 2012, the district court granted plaintiffs’ motion for class certification under Rule 23(b)(3), certifying a class of plan administrators of all plans that have a group annuity contract or group funding agreement with ILIAC. A copy of the order can be found here.

On January 10, 2013, ILIAC answered the amended complaint and counterclaimed against the plaintiffs, as limited in the court’s September 27, 2012 order. A copy of the answer and counterclaim can be found here.

Since then, the plaintiffs have filed a motion to dismiss ING’s counterclaims and ILIAC has filed a motion for summary judgement and a motion to decertify the class. All motions remain pending. We will update the ERISA Litigation Index as soon as any orders become available.

Of interest, the issues in this case are similar enough to those in Santomenno v. Transamerica Life Ins. Co. and Leimkuehler v. American United Life Insurance Co., where in each case, the defendant is an insurance company. Also of interest, the plaintiffs in Leimkuehler have stated their intention to file a petition for rehearing to the 7th Circuit Court of Appeals. As such, we can say with certainty that nothing seems certain about these types of cases. Stay tuned.


Brown v. Fidelity Management and Trust Co. – District of Massachusetts

This is the fourth “float” case filed against Fidelity along with the sister cases of KelleyBoudreau, and Columbia Air Service, Inc. The same attorneys representing the plaintiff in Boudreau is representing the plaintiff here. The claim is brought on behalf of the General Motors Personal Savings Plan (for hourly employees), a plan with nearly $6 billion in plan assets.

We anticipate that more individual float cases will be filed against Fidelity. We also anticipate that the district court will grant all of the plaintiffs’ motion to consolidate these cases under one master case as simultaneously litigating four or more cases is inefficient. If that happens, we will let you know and adjust the ERISA Litigation Index accordingly.


If you know of other cases that you would like tracked here, please email Tom at

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