The ERISA Industry Committee Files Tenth Amicus Brief in Alfretta Antoine v. Marsh & McLennan as It Continues Its Pursuit to Defeat Nuisance Lawsuits Against Employers Sponsoring 401(k) Plans

WASHINGTON, DC – December 9, 2022 – The ERISA Industry Committee (ERIC) continued its efforts today to defeat recent boilerplate lawsuits targeting 401(k) plan sponsors that offered a particular suite of target-date mutual funds (TDFs), filing its tenth amicus brief, this time in support of Marsh & McLennan (S.D.N.Y).
ERIC, which represents large employers that sponsor health and retirement plans for nationwide workforces, joined again with coalition partners to file an amicus brief supporting Marsh & McLennan in Alfretta Antoine, et al. v. Marsh & McLennan (S.D.N.Y), 1:22-cv-06637.
“This tenth brief, along with nine others filed in just under two months, serves to emphasize that the Federal courts should be dismissing the purely hindsight-based allegations brought in nuisance cases like Alfretta Antoine, et al v. Marsh McLennan. If these suits proceed beyond motions to dismiss, they will exacerbate the surge of 401(k) litigation costs and risks, undermining retirement security for workers and retirees across the country,” said James Gelfand, President of ERIC.
The 11 cookie-cutter lawsuits recently filed by the same law firm in district courts around the country allege fiduciary breaches by simply offering these TDFs. These complaints rely on a flawed allegation that because the funds underperformed four plaintiff-selected competitor funds over a particular time period, plan fiduciaries placed too much consideration on the funds’ low management fees instead of returns.
The briefs filed by ERIC and coalition partners argue that:

  • A complaint must plead allegations showing that a reasonable process could not have produced the decisions the fiduciaries made.
  • Purely pleading underperformance is insufficient to survive a motion to dismiss.
  • Allowing these claims to go forward will jeopardize the willingness of employers to sponsor retirement plans by creating never-ending litigation, spiraling insurance costs, and a counterproductive instruction to plan fiduciaries to consider past performance to the exclusion of other relevant considerations.

“ERIC remains committed to protecting plan sponsors from unsubstantiated legal claims that threaten their ability to design and administer retirement benefits for tens of millions of Americans,” Gelfand said.
Current and previous filings:

  1. To read the coalition amicus brief filed today in Alfretta Antoine, et al. v. Marsh & McLennan, visit ERIC’s website here.
  2. To read the coalition amicus brief filed on November 21 in Juliette Motz, et al. v. Citigroup, visit ERIC’s website here.
  3. To read the coalition amicus brief previously filed in Lynetta Luckett v. Wintrust Financial, visit ERIC’s website here.
  4. To read the coalition amicus brief previously filed in Christine Abel, et al. v. CMFG Life Insurance, visit ERIC’s website here.
  5. To read the coalition amicus brief previously filed in James Kistler, et al. v. Stanley Black & Decker visit ERIC’s website here.
  6. To read the coalition amicus brief previously filed in Robert Bracalente, et al. v. Cisco Systems, Inc., visit ERIC’s website here.
  7. To read the coalition amicus brief previously filed in Justin Beldock, et al v. Microsoft Corp., visit ERIC’s website here.
  8. To read the coalition amicus brief previously filed in Andre Hall, et al. v. Capital One Financial Corp, visit ERIC’s website here.
  9. To read the coalition amicus brief previously filed in Peter Trauernicht, et al. v. Genworth Financial, visit ERIC’s website here
  10. To read the coalition amicus brief previously filed in Tullgren v. Booz Allen Hamilton Inc., visit ERIC’s website here.


All media inquiries to The ERISA Industry Committee should be directed to

About The ERISA Industry Committee
ERIC is a national advocacy organization that exclusively represents large employers that provide health, retirement, paid leave, and other benefits to their nationwide workforces. With member companies that are leaders in every sector of the economy, ERIC advocates on the federal, state, and local levels for policies that promote flexibility and uniformity in the administration of their employee benefit plans.