The Seventh Circuit has issued its decision in the much-anticipated case of Divane v. Northwestern. The district court below had refused to allow plaintiffs to proceed with breach of fiduciary duty and prohibited transaction claims based on the recordkeeper’s use of participant data for purposes of “cross-marketing” non-plan services to plan participants. The issue
In a prior post, we commented on the growing trend of fiduciaries making non-monetary concessions to settle ERISA fee litigation cases. We observed that certain “onerus” non-monetary settlement features – such as obligating fiduciaries to provide plaintiffs’ counsel with customized reports on plan operations and performance during a years-long “monitoring” period — are significant
As the bellwether cases in the ERISA actuarial assumptions litigation approach the end of the motion to dismiss stage, this is a good time to step back and assess how they are proceeding.
Test cases of this sort tend to unfold in phases.