Northwestern University recently defeated a lawsuit alleging that it violated the Employee Retirement Income Security Act (ERISA) while managing its retirement plans. The plaintiffs brought ERISA breach of fiduciary duty and prohibited transaction claims, alleging the university’s retirement plans featured imprudent investments and paid excessive fees. On May 25, 2018, the U.S. District Court for the Northern District of Illinois dismissed the lawsuit in its entirety and denied the plaintiffs’ motion to amend to add additional counts, finding them futile.
In a 5-4 decision written by newcomer Justice Gorsuch, the U.S. Supreme Court upheld employment agreements that require employees to individually arbitrate disputes with their employers.
The May 21, 2018, opinion in Epic Systems Corp. v. Lewis resolves a trio of cases before the Supreme Court in which employees brought suits against their employers alleging state and federal wage and hour violations. In each situation, the employees had signed contracts agreeing to resolve any employment-related disputes in individualized arbitration. Nevertheless, they sought to litigate their claims in class or collective actions.
The Department of Labor (DOL) recently reiterated its position that plan fiduciaries are not permitted to sacrifice investment return or take additional investment risk to promote “collateral social policy goals.”
The DOL reasoned that environmental, social and governance factors are not typically relevant economic factors that should be used to evaluate investment alternatives. In some situations, when they reflect business risks or opportunities, they can be treated as economic considerations and more than mere tie-breakers. However, ERISA fiduciaries must always put the economic interests of the plan first.