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In response to criticism by the Department of Labor and others of its ruling in a decision involving allegedly excessive 401(k) fees, the Seventh Circuit has amended the opinion to clarify its views on the application of the fiduciary safe harbor in ERISA §404(c) to a plan sponsor's decisions regarding the selection of investment options.
While it declined to rehear the participants' claims in Hecker v. Deere & Company, the court emphasized in its amended opinion that the opinion makes no definitive ruling on whether the ERISA §404(c) safe harbor applies to the selection of investment options for a plan. It rejected concerns expressed by the Secretary of Labor in an amicus brief that the original opinion could be read as insulating from liability future plan sponsors who, for example, include a very large number of investment options in a portfolio and then shift to the plan participants the responsibility for screening investment alternatives. The 404(c) discussion in Hecker is narrowly targeted to facts specific to that case, the court said (Order on Petition for Panel Rehearing, Hecker v. Deere & Company, (CA-7), June 24, 2009).
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