Employment and Labor Law

Contact: Mark S. Thomas & Robert W. Shaw; Williams Mullen (North Carolina & Virginia, USA)

The Fourth Circuit rejected the claims of a putative class action brought on behalf of participants of two retirement plans sponsored by Bank of America.  In David v. Alphin, No. 11-2181 (4th Cir. Jan. 14, 2013), the court affirmed the lower court in holding that the plaintiff representatives could not pursue alleged breaches of fiduciary duties where the plaintiffs could not show that they were worse off as a result of such alleged breaches.  Significantly, the Fourth Circuit also agreed that where the 401(k) plan administrator’s alleged fiduciary breach began with the selection of Bank of America funds in 1999, subsequent routine meetings of the plan administrator did not constitute on-going breaches of fiduciary duty.  As a result, the plaintiffs’ claims in 2007 were time-barred by ERISA’s six-year statute of repose.

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