ERISA Litigation Is Shifting Targets: Fee Suits Slow, Target-Date Fund Claims Surge

The shape of ERISA class-action litigation against 401(k) plans is changing in 2026. Challenges to plan fee levels — long the dominant category of retirement-plan litigation — have slowed considerably, with only a handful of new fee-focused suits filed so far this year. Forfeiture-related litigation, which produced roughly 100 lawsuits over the prior three years, has also cooled, with early district-court rulings generally favoring employers and several circuit-court appeals still pending.

In their place, plaintiffs' firms are testing new theories. Roughly twenty new ERISA class suits filed in early 2026 target the investment performance of target-date fund lineups, arguing that specific fund suites underperformed and should have been swapped for alternatives. More than a dozen of these cases center on target-date funds from a single major asset manager — notably, without naming that manager as a defendant, instead targeting the plan sponsors and fiduciaries who selected the funds.

Separately, litigation activity is broadening beyond retirement plans into adjacent fiduciary territory, including challenges to health-plan design decisions such as tobacco-user premium surcharges.

Why this matters for advisors: the plaintiffs' bar appears to be pivoting toward performance-based claims rather than fee-based ones, which changes what "defensible documentation" looks like for a plan committee. A prudent, well-documented fee benchmarking process — the traditional defense — may not be sufficient on its own if the next wave of claims centers on investment selection and monitoring rather than cost.