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ARTICLE · 01 APRIL 2026

Plaintiffs Pursue New Strategy Focused On Climate Risk In ERISA Fee Litigation

Baker Botts L.L.P.
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ERISA fee litigation focused on alleged investment underperformance has been active for many years. In Kvek v. Cushman & Wakefield, Case No. 2:26-cv-736 (W.D. Wash., filed March 3, 2026), plaintiffs have taken a new tack, alleging that one fund underperformed due to investments in companies impacted by climate risk and that plan fiduciaries breached their duties by failing to analyze and account for such risk.

United StatesEmployment and HR
Tina Q. Nguyen
Tina Q. Nguyen
Christopher Rillo
Christopher Rillo
Matthew Sheridan
Matthew Sheridan

ERISA fee litigation focused on alleged investment underperformance has been active for many years. In Kvek v. Cushman & Wakefield, Case No. 2:26-cv-736 (W.D. Wash., filed March 3, 2026), plaintiffs have taken a new tack, alleging that one fund underperformed due to investments in companies impacted by climate risk and that plan fiduciaries breached their duties by failing to analyze and account for such risk. The recently filed complaint in Kvek is the first of what may be a new trend in ERISA fee litigation, and it remains to be seen how courts will rule on these claims. This update discusses the climate-risk allegations, challenges we see with plaintiffs’ approach, and tips for fiduciaries.

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