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Define small

I will reiterate that almost all small and medium-sized 401(k) plans are immune from 401(k) litigation by current or former participants because ERISA attorneys aren’t likely to make money. The problem is: what is small? For me, small is something less than $25 million, and medium is less than $100 million.

According to fiduciary insurance data cited by the law firm Robinson Bradshaw, 40% of 401(k) excessive fee suits filed in 2022 were related to plans with less than $1 billion in assets, and 20% were related to plans with less than $500 million in assets. From where I come from, these are big plans.

I will always say that with my clients, I fear a governmental audit far more than a 401(k) lawsuit.

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