ERISA Class Action Filings Nearly Double as Plaintiffs Target New Fiduciary Theories

ERISA class action filings almost doubled year-over-year in the first quarter of 2026, according to Gallagher, as plaintiffs' firms expand beyond traditional excessive-fee claims into new legal territory.
By: | November 2, 2026
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ERISA class action litigation is intensifying as a corporate risk, with first-quarter 2026 filings nearly doubling year-over-year, according to Bloomberg data cited in an article by Arthur J. Gallagher & Co.

The increase is consistent with broader ERISA class action filing trends in recent years, which saw defined benefit plan cases on a steady rise from 2023 to 2025, according to a Mayer Brown analysis. Gallagher noted that larger plans, those holding hundreds of millions or billions of dollars in assets, remain the prime targets for plaintiffs’ firms, which have turned fiduciary litigation against corporate plan sponsors into a significant business risk over the past two decades. Many companies have settled these cases for seven or eight figures, according to Gallagher.

New Legal Theories Widen the Litigation Field

While excessive fee and investment-selection claims remain the most common basis for ERISA class actions, plaintiffs’ firms have recently pursued additional theories. One recurring allegation involves 401(k) plans that allegedly maintained underperforming target date funds for retirees despite evidence of poor results, according to Gallagher.

Plaintiffs have also filed roughly 100 class actions over the past three years challenging how retirement plan sponsors use forfeited employer contributions, funds that departing employees forfeit before vesting, Gallagher reported. These suits allege that fiduciaries breached their duties by applying forfeited funds toward future employer contributions rather than crediting them against participants’ administrative expenses.

While district courts have dismissed many of these cases, some remain pending in federal appellate courts, including key circuits, the report said.

Separately, one prominent ERISA plaintiffs’ firm has filed a series of cases targeting voluntary employee benefit plans, such as opt-in accident and critical illness coverage, according to Ropes & Gray. While ERISA safe harbors may be available for these plans, plaintiffs in these cases have alleged that the safe harbors aren’t available because employers “endorsed” the relevant voluntary benefit plans. These cases remain pending in federal courts, and future decisions may further shape the ERISA risk environment, according to Gallagher.

High Dismissal-Stage Survival Rates Sustain Settlement Activity

The motion-to-dismiss stage functions as a key battleground in federal court litigation. If a defendant succeeds in getting a case thrown out with prejudice, litigation costs are typically not severe. However, if plaintiffs defeat the motion to dismiss and a case moves into document and witness discovery, litigation costs can increase quickly. While defendants have other chances to get cases thrown out, such as at summary judgment, or watered down through class certification, the motion-to-dismiss stage is a hinge point for class action litigation, and fiduciary litigation is no exception, Gallagher said.

Encore Fiduciary found that approximately 60% to 65% of excessive fee lawsuits have historically survived the motion-to-dismiss stage, a track record Gallagher said helps explain the continued frequency of ERISA class action litigation today. Gallagher noted that although the U.S. Supreme Court has weighed in on ERISA pleading standards a few times over the past decade, filing trends suggest those decisions haven’t materially diminished the risk-reward profile of fiduciary litigation for plaintiffs.

On the settlement side, Encore Fiduciary found that plaintiffs’ firms have recovered more than $1 billion in excessive-fee and imprudent-investment litigation over the past five years. With a strong chance of surviving the motion to dismiss and a track record of significant settlements, Gallagher said the ERISA plaintiffs’ bar shows few signs of slowing down on fiduciary class litigation in the years ahead.

Given the sustained litigation activity, Gallagher said many companies today choose to buy fiduciary liability insurance, which it described as a component of the broader management liability insurance program, along with directors and officers liability, employment practices liability and crime coverage.

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The R&I Editorial Team can be reached at [email protected].

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