When a 401(k) lawsuit is filed, the first thing plaintiffs’ counsel asks for isn’t your investment returns. It’s your committee minutes.
That surprises plan sponsors. It shouldn’t.
ERISA litigation is less about outcomes and more about process. Committee minutes are the written record of that process—or the written proof that there wasn’t one.
Good minutes don’t need to be novels. But they do need to show:
· What issues were discussed
· What information was reviewed
· What questions were asked
· What decisions were made—and why
Bad minutes are worse than no minutes. I’ve seen minutes that say things like “fees reviewed and approved” with no context, no benchmarking, and no discussion. That’s not protection—that’s an invitation.
The goal isn’t to script perfection. It’s to document engagement. Courts understand fiduciaries aren’t infallible. What they won’t forgive is rubber-stamping.
Here’s what strong minutes avoid:
· Jokes
· Casual language
· Statements suggesting decisions were predetermined
· Overreliance on providers without discussion
And here’s what they emphasize:
· Independent thinking
· Follow-up questions
· Conflicts disclosed and addressed
· Decisions revisited over time
Think of committee minutes as your future self’s best friend. Years later, when memories fade and personnel changes, those minutes may be the only evidence that fiduciaries took their role seriously.
Under ERISA, silence isn’t neutral. It’s suspicious.
