The ERISA Industry Committee (ERIC), along with the American Benefits Council and the American Retirement Association filed an amicus brief with the U.S. District Court for the Eastern District of Virginia on behalf of defendants in an Employee Retirement Income Security Act lawsuit, arguing that the plaintiffs in Tullgren v. Booz Allen Hamilton, and many plaintiffs in general, are essentially frivolous and rely on hindsight.

In the brief, ERIC argues that a case that relies on underperformance in hindsight should not survive a motion to dismiss. They also argue that the recent increase in ERISA litigation will only lead to a reduction in the number of employer-sponsored retirement plans.

They also state that looking solely at the short-term performance of a fund would be imprudent, because it would cause a fiduciary to overlook other factors such as risk and diversification. The fund in question in the Tullgren case, a target date fund managed by BlackRock, is considered a low-risk fund, and the fact that it underperformed some of its peers in the short term is not evidence of imprudence, ERIC wrote.

James Miller of Miller Shah LLP, an attorney representing the plaintiffs in the Tullgren case disagrees with this characterization. He described the amicus brief as a “pretty transparent attempt to avoid responsibility” and “motivated by insurance industry actors that are seeking to avoid to have to pay on insured claims.”

Specifically, Miller said that the BlackRock fund actually has greater exposure to equities than some of its peers in the TDF market, such as those managed by Vanguard or T. Rowe Price, and is therefore riskier. Since it is riskier, its relative underperformance, the basis of the lawsuit, is unjustified, Miller said.

Miller also rejected the characterization of ERISA case as frivolous. “For every case we accept we probably reject three. We only accept cases we believe in,” says Miller.

Section 104 of ERISA, which requires certain disclosures to be made by fiduciaries on the request of plan participants, is also inadequate for plaintiffs, says Miller. A section 104 request may only yield a summary plan description and administrative services agreements, but does not require that other items, such as the minutes of fiduciary committee meetings, be turned over to plan participants.

This limited disclosure makes it difficult for plaintiffs to have the insight they need into the fiduciary’s process without resorting to time-consuming discovery, Miller said. He said that an expansion of Section 104 to include a wider range of pre-dispute disclosures could reduce wasteful lawsuits and help keep fiduciaries more accountable. He adds, however, that in cases where they obtain meeting minutes, he finds that fiduciaries often only take a “passing interest” and have “no idea what they are doing.”

David Levine, an attorney with Groom Law, which specializes in ERISA defense, says that many ERISA cases are based on “20/20 hindsight” and compare “apples, oranges, and pears.” Mere underperformance is not an adequate claim because “ERISA is about a prudent process” and some prudent processes will lead to some plans outperforming others. Plan sponsors are “not required to be an omniscient Warren Buffett” to avoid the charge of imprudence.

Mark Boyko, an attorney with Bailey & Glasser, who represents plaintiffs in other ERISA lawsuits says that the amicus brief’s arguments are “just framing.” In order to have standing in these cases, there must be plan underperformance, otherwise there would be no damages to claim. Without looking to underperformance in hindsight, one has no metric by which to assess actionable damages.

Boyko also accuses fiduciaries of wanting it both ways. On the one hand, defendants normally decline to voluntarily share information not required by section 104 of ERISA, but on the other, they want to dismiss complaints about a lack of detailed information on the fiduciary’s process.

He says that if a fiduciary is “confident in [its] process, it makes no sense not to overprovide info including those meeting minutes.”

Boyko also rejects the argument that ERISA lawsuits are disincentivizing 401(k) plans. He notes that 401(k) plans are becoming more, not less, common, and there is no decline in participation. He adds that the threat of litigation helps keep plan sponsors honest and likely makes defined contribution plans perform better.