401(k) Fee Lawsuits: What Can A Plan Sponsor Do?

Most weeks, a plan sponsor (and frequently, several plan sponsors) is sued for breach of fiduciary duty in connection with the investment choices offered under its 401(k) or 403(b) plans.  

Often, the complaint alleges that plan fiduciaries breached their fiduciary duties by:

(1) Making an investment option available under the plan when an alternate lower-cost investment option might have been available, or

(2) Retaining a higher-cost actively managed investment option as part of the plan's investment lineup when that option has produced (over some period of time and, with the benefit of hindsight) lower returns as compared to other actively or passively managed funds that the plan fiduciaries might have selected.