Second Circuit Affirms Dismissal of 401(k) Fee Lawsuit

On May 6, 2009, the Second Circuit Court of Appeals affirmed the dismissal of two related actions, concluding that the plaintiffs failed to state claims based on allegations that plan fiduciaries failed to diversify plan investments and invested in funds that carried excessive fees.  The Second Circuit's decision is unpublished, and hence carries no official precedential value.  It nonetheless underscores the strict scrutiny that courts are increasingly applying to the plaintiffs' allegations in the high-profile 401(k) fee lawsuits.  Please see the attached memo for a summary and further discussion.