Businesses rarely adopt a strategy of moving down market. They either stay or move up market. That certainly has been true in the world of 401(k) litigation. Almost universally, the plans being sued have had participants in the tens of thousands and assets in the billions of dollars. And why wouldn’t they? The attorneys that pursue these actions take them on a contingency basis. Years pass as they wind their way through the courts. So the only way that the potential result justifies the investment of time, energy and money by the litigating law firm is to “follow the money.”
Now, for the first time, in two separate actions, 401(k) lawsuits seem to be moving down market.
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