2020's Perspective: Jerry Schlichter on the Future of 401(k) Litigation

My now annual conversation with Jerry Schlichter, plaintiffs attorney with Schlichter Bogard & Denton has been one of the more popular episodes on the 401(k) Fridays podcast. This year was one of our best and most forward looking. In case you are not familiar with Jerry and his work in successfully brining 401(k) or ERISA litigation against employers, he has a pretty impressive track record. He burst onto the scene with a flurry of litigation in 2006 and to date he has secured settlements of over $300 million and what he would call significant improvements in their plans. In total, this relief is valued at more the $1.5 billion. In Jerry’s prior appearances on the podcast we have talked about how the modern era of 401(k) litigation started, his unanimous victory in the Supreme Court and several other of his thoughts and observations. This time, we briefly touch on the current state of litigation and spend most of our time talking about how he thinks litigation will evolve in the coming decade. This is a great listen, be sure to stick around for the end when I ask him about his third act in retirement plan litigation.

If you want to check out my prior conversations with Jerry you can either search or scroll through your podcast app and look for titles with "Boogey Man" in it. Those are not required listening to follow along in this episode, but are good none the less. Also, please share your thoughts on this episode on social media. Be sure to tag me, Rick Unser or the 401(k) Fridays Podcast. Or, if you would prefer send me a private message or an email to [email protected].

For the episode transcript, bonus question and more information go to https://www.401kfridays.com/schlichter2020

Guest Bio

Jerry is founding and managing partner of the firm. He has been repeatedly elected by his peers for inclusion in "Best Lawyers in America” and “Lawyer of the Year” and is listed in the 2019 edition.

Jerry has been featured in numerous national publications, including the New York Times, Reuters, Bloomberg, USA Today, and the Wall Street Journal, for his and the firm’s success in pioneering claims of excessive fees in 401(K) plans and obtaining precedent-setting results involving claims of excessive fees against large employers, and for the reduction in fees his cases have caused throughout the 401(k) industry.

He and the firm have obtained settlements in these 401(k) excessive fee cases of more than $300 million for employees and retirees, in addition to significant improvements in their 401(k) plans; in total, this relief has been valued at more than $1.5 billion. He also was lead attorney for the firm in the first and only full trial of an excessive fee case in the country, resulting in a verdict of $36 million. In recent rankings of the most influential people in the 401(k) industry by 401kWire.com, Jerry has repeatedly ranked in the top 5.

According to a recent article published in Reuters, the CEO of Brightscope, an independent company which evaluates 401(k) plans, stated, speaking of Mr. Schlichter’s national impact on 401(k) plan fees, that “[h]is impact has been humongous." The New York Times has referred to Jerry as “a Lone Ranger of the 401(k)’s,” and he has been referred to by Investment News as “public enemy no. 1 for 401(k) profiteers” and by Chief Investment Officer as “the industry’s most feared attorney.” In describing the effect of his work on behalf of employees in 401(k) plans, the Wall Street Journal referred to it as being “Schlicterized”.

In 2014 and 2015, Mr. Schlichter’s firm obtained the two largest 401(k) excessive fee settlements in history. The first was a settlement for $62 million against Lockheed Martin on behalf of Lockheed Martin employees, which included significant changes to the Lockheed Martin 401(k) plan. The second was a settlement for $57 million from Boeing, which likewise included significant non-monetary relief.

Also in 2015, Mr. Schlichter won a unanimous 9-0 decision in the U.S. Supreme Court in Tibble v. Edison, the first U.S. Supreme Court case to consider fees in 401(k) plans.

In an order in the case of Nolte v. Cigna Corporation in 2013, the U.S. District Court judge stated: “As the preeminent firm in 401(k) fee litigation, Schlichter, Bogard & Denton has achieved unparalleled results on behalf of its clients. Jerome Schlichter and Schlichter, Bogard & Denton’s work throughout this litigation stands as yet another example of the firm’s acting as a private attorney general, risking breathtaking amounts of time and money while overcoming many obstacles for the benefit of employees and retirees. . . . Mr. Schlichter and the Schlichter, Bogard & Denton firm’s actions have led to dramatic changes in the 401(k) industry, which have benefited employees and retirees througho...