Are You Playing Too Much 401(k) Fiduciary Defense?
How To Tell And Why It's Time To Play Offense!

Episode Guest:

Jamie Fleckner
Partner, Chair ERISA Litigation
Goodwin Law
The podcast series where employers find candid, in-depth interviews with industry experts, new best practices and valuable perspectives on current events. 
Recap, highlights, and my thoughts

The inspiration for this episode came from a request for proposal in received recently from a company in my day job as a workplace retirement plan consultant  After giving it a quick read through, my initial reaction was wow, this company is in a fiduciary defensive shell.  Their entire focus was on managing and limiting their fiduciary liability.  I guess if you only focus on the lawsuits and fiduciary messaging I an understand their positioning. 

 

S0, that got me thinking, should workplace retirement plan fiduciaries be thinking defensively or offensively when making plan decisions?  To bring some perspective to the conversation I was excited to have Jaime Fleckner, a Partner and Chair of the ERISA Litigation Practice at Goodwin Proctor.  I won’t steal Jaime’s thunder but I will tell you that if you’re looking for some fresh thoughts on the current retirement plan fiduciary state of affairs he does not disappoint. 

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Thanks for listening! 

Sincerely Your Host, 

Rick Unser

Guest Bio

Jamie Fleckner is a partner in Goodwin’s Financial Industry Practice and Chair of its ERISA Litigation Practice. Mr. Fleckner represents clients in a wide array of complex commercial litigation, with a focus on financial services and products, including investment management. He regularly litigates class and derivative actions under ERISA, the Investment Company Act of 1940, the Securities Exchange Act of 1934, and related federal and state laws. His practice also focuses on regulatory investigations and governmental proceedings, and has represented clients before the U.S. Department of Labor, Securities and Exchange Commission, Department of Justice, Pension Benefit Guaranty Corporation and state authorities.

Mr. Fleckner's success in litigating cutting edge legal issues has been profiled in The American Lawyer, Big Suits. According to Chambers USA: America’s Leading Lawyers for Business where Mr. Fleckner has been selected for inclusion since 2014, Mr. Fleckner is “at the top of his game,” and is “a rare thought leader” on ERISA litigation. Since 2015, he has been recognized as a leading lawyer in the list of Who’s Who Legal: Pensions and Benefits.

Mr. Fleckner represents companies and individual officers in class and derivative actions, regulatory investigations and bankruptcy proceedings regarding the discharge of Investment Company Act, ERISA and other fiduciary duties. Currently, he is representing numerous clients in so-called “excessive fee” ERISA and Investment Company Act litigation, and other litigation challenging the discharge of fiduciary obligations. His recent experience includes representation of:

  • The investment adviser to four sub-advised mutual funds, with assets totaling over $40 billion, in a derivative suit brought under Section 36(b) of the Investment Company Act challenging the reasonableness of the fees charged. This litigation is ongoing.

  • A company and the named fiduciaries of a $10 billion profit sharing plan in class action litigation asserting breaches of ERISA fiduciary duties and prohibited transactions as to the investments selected for the plan and the fees allegedly paid by the plan. This case has successfully settled.

  • A leading international bank class action litigation involving its nearly $3 billion defined contribution plan that it makes available to its U.S. based employees.

  • A multinational diversified financial services corporation in litigation brought by a putative class of plan participants whose employers selected the client’s products and services for their plans, challenging as excessive the fees associated with such products under both the Investment Company Act and ERISA. This litigation has been successfully dismissed.

  • A multinational bank in ERISA arbitration involving the investment of over $1 billion in a stable value account for the benefit of retirement plan participants. Goodwin secured a ruling in the client’s favor on all claims.

  • One of the nation’s largest insurance companies in a putative ERISA class action alleging breach of fiduciary duty and self-dealing in the manner in which group life insurance benefits are settled. This litigation is ongoing.

  • A multinational bank that served as the directed trustee for an $8 billion retirement plan in putative ERISA class action litigation challenging the plan’s holding of Kodak stock. This litigation has successfully settled.

  • The trust company of a large mutual fund complex in a regulatory investigation involving the continued holding of tens of millions of dollars in the stock of a company that ultimately went bankrupt. After an extensive investigation, the government declined to bring any action against the client. 

 

Professional Activities

Mr. Fleckner is a member of the Boston and Massachusetts Bar Associations. He serves on the board of the Defined Contribution Institutional Investment Association. In addition to his professional associations, Mr. Fleckner has been involved in numerous community and philanthropic organizations, including as a member of numerous commissions of the Combined Jewish Philanthropies, the Public Policy Committee of the Jewish Community Relations Council and an elected member at the Needham (MA) Town Meeting.

Mr. Fleckner’s pro bono experience includes representing the fiduciary of a retirement plan for teachers in an inner-city charter school to recover misappropriated assets; representing prisoners in a civil rights action; and representing a religious institution in a constitutional challenge to restrictive zoning practices.

 

Recognition

Since 2014, Mr. Fleckner has been listed in the nationwide ERISA Litigation category in Chambers USA: America’s Leading Lawyers for Business, where clients praise his "knowledge of the ERISA area and ability to distill concepts into practical strategic advice." Since 2015 he has been recognized as a leading lawyer in the list of Who’s Who Legal: Pensions and Benefits. Since 2013 he has been recognized as a national leader in ERISA litigation by The Legal 500 United States. Since 2011, Mr. Fleckner has been recognized as a New England Super Lawyer by Law & Politics and Boston magazine. He was recognized in 2008 as a Massachusetts Super Lawyer “Rising Star” by the same publication.

Viewpoints

Mr. Fleckner is a nationally recognized lecturer and author on ERISA, Investment Company Act, and related litigation topics. He has presented at over 100 conferences across the United States to legal and non-legal audiences. His recent speaking engagements include:

  • Committee on Investment of Employee Benefit Assets, Operations Group Meeting (April 2017)

  • American Bar Association, 2017 Business Law Section Spring Meeting (April 2017)

  • “Plan Governance in a Changing World,” American Bar Association (December 2016) 

  • DCIIA 403(b) Litigation Webinar and Roundtable (November 2016)

Mr. Fleckner also has been quoted in numerous publications, including Forbes, Ignites, Pensions & Investments, Pension & Benefits Daily, The United States Law Week, PlanSponsor.com, California Lawyer, New York Law Journal, The Wall Street Journal, The Washington Post and The Boston Globe. 

 

Education

  • J.D., University of Connecticut School of Law, 1998 (magna cum laude)

  • B.A., Trinity College, 1991 (Hartford)

 

Admissions

Mr. Fleckner is admitted to the Massachusetts Bar, the U.S. Supreme Court, the U.S. Courts of Appeals for the First, Second, Third, Eighth and Ninth Circuits, and the U.S. District Courts for the District of Massachusetts, Western District of New York, and Western District of Wisconsin. He has also been admitted to practice pro hac vice before courts across the country.

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