November 2021 ERISA Litigation Update:

Given the continuing wave of ERISA litigation, this article has become a mainstay of The Speed Reader. A sample of recent cases is provided below.

The most common type of ERISA case for approximately the past fifteen years has involved retirement plan participants’ allegations that plan fiduciaries caused participants to pay excessive recordkeeping and investment fees and included one or more poorly-performing investment options in the plan. Recent cases in this category include the following:

• Ritorto vs. KPMG LLP (complaint filed on October 26, 2021 in the U.S. District Court for the District of New Jersey).
• Singh v. Deloitte, LLP (complaint filed on October 13, 2021 in the U.S. District Court for the Southern District of New York).
• Reetz v. Lowe’s Companies, Inc. (case dismissed on October 12, 2021 by the U.S. District Court for the Western District of North Carolina).

Another type of recent ERISA case is as follows:

Alfonso v. Cumulus Media, Inc. (decided on October 15, 2021 by the U.S. District Court for the Northern District of Georgia):  The plaintiff, who is a former employee of the defendant, participated in the defendant’s 401(k) plan. When the plaintiff’s employment terminated, he signed a separation agreement (the “Agreement”) with the defendant. Under the Agreement, the plaintiff released the defendant from all claims held by the plaintiff. The plaintiff subsequently filed this lawsuit, alleging certain breaches of the defendant’s fiduciary duties under ERISA. The defendant then filed a motion to have the case dismissed.

The defendant interpreted the Agreement as a comprehensive promise not to bring any ERISA claims whatsoever, whether on the plaintiff’s behalf or on the plan’s behalf, related to the plaintiff’s rights or claims as a plan participant. The plaintiff argued that the Agreement does not affect his claims for breach of fiduciary duty under ERISA because they belong to, and are brought on behalf of, the plan.

In dismissing the case, the court relied on the following Agreement language: “Employee hereby irrevocably and unconditionally releases [the defendant] from any…claim or right based upon or arising under…ERISA (including, but not limited to, claims for breach of fiduciary duty under ERISA)…” Based on that language, the court stated that the plaintiff waived his ability to file a lawsuit based on ERISA claims, and “the Agreement forecloses this action.”