Analysis Group Managing Principal D. Lee Heavner Contributes to ABA Business Law Compilation

May 11, 2018

The American Bar Association's (ABA's) Business Law Section has published the 2018 edition of its annual compilation Recent Developments in Business and Corporate Litigation. Analysis Group Managing Principal D. Lee Heavner coauthored “Back to School: A Primer on University 403(b) Litigation,” a section of the chapter on ERISA litigation. This piece discusses a wave of lawsuits against private universities alleging that excessive investment fees, underperforming investment options, and unreasonable recordkeeping fees in the universities' retirement plans constituted breaches of their fiduciary duties in violation of ERISA.

Heavner and coauthor Lisa S. Brogan trace the intertwined histories of 401(k) and 403(b) retirement plans, and explain the roles played by the plans' respective legacies in the circumstances that led to the litigation. They also point out that differences in practice between the two kinds of plan could affect how courts construe the “prudent man” standard of fiduciary care. Because the litigation is ongoing, “[i]t is too soon to predict whether the initial wave of University Plan cases will spawn more lawsuits against non-profits of all kinds,” they write, “but the early rulings at the pleading stages have set the stage for shaping future complaints.”

Recent Developments in Business and Corporate Litigation, 2018 Edition is available for sale on the ABA's website.