During 2017, several trends emerged in litigation under the Employee Retirement Income Security Act. Excessive fee cases remained prevalent, with two types commanding a large percentage of ERISA litigation — cases challenging the inclusion of proprietary funds in a 401(k) plan and cases against universities’ 403(b) plans. The U.S. Supreme Court addressed the interpretation of the church plan exemption, overturning three appellate decisions holding that an ERISA-exempt church plan must be established by a church and causing participants to pursue alternate theories of liability. Outside of litigation, Congress repealed a U.S. Department of Labor rule that established a safe harbor from ERISA coverage for state-sponsored retirement plans. Despite the repeal, eight states are continuing to implement their plans, with Oregon being the front-runner to face ERISA preemption challenges. And finally, after the Supreme Court’s Spokeo decision, Article III standing regained prominence, prompting multiple decisions on when a participant in a defined benefit plan incurs sufficient risk to benefits to confer standing. These trends have developed throughout 2017 and raise issues that will continue through 2018.
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