Benchmarking Divides Judges Juggling Flood of 401(k) Lawsuits

The recent influx of 401(k) plan litigation has attorneys and courts weighing how to best compare particular investments or fee structures against potential alternatives—a choice that could mean the difference between a case failing at the outset or advancing.

As judges make their way through the more than 250 proposed class actions filed by retirement plan participants since 2020, differences have emerged in how carefully they scrutinize the comparisons made between a specific plan’s fees and investments and the alternatives held up as better options. These comparisons, typically called benchmarks, attempt to evaluate a given fund or fee structure by ...