The mere thought of a 401(k) lawsuit can send shivers down the spine of even the most experienced retirement plan fiduciary. However, when you have a grasp on why workplace retirement plans are being sued, how the economics of a lawsuit work and what you can do to make the job of a plaintiff’s attorney harder, the risk can be a little easier to manage. For answers to these and more questions, I thought it was time to invite Jerry Schlichter, the plaintiff’s attorney who has sued numerous 401(k) and 403(b) plans around the country and even successfully argued a 401(k) case before the US Supreme Court back to the podcast to share his thoughts.
I was also able to work in several questions from our listeners into the episode. If you missed your opportunity to submit a question be sure are one of our email subscribers, we often send announcements out about future guests and give you the opportunity to share your questions in advance. Go to 401kfridays.com/subscribe today to take care of that. If after listening to this episode you feel like you need a little fiduciary refresher, check out last week’s episode with Jason Roberts. Some good points there to help you sleep better and keep the boogeyman away.
Guest Bio
Jerry is founding and managing partner of the firm. He has been repeatedly elected by his peers for inclusion in "Best Lawyers in America” and “Lawyer of the Year” and is listed in the 2019 edition.
Jerry has been designated legal counsel for the Brotherhood of Locomotive Engineers for many years and is currently designated legal counsel for the United Transportation Union and the International Brotherhood of Electrical Workers. He has represented railroad workers in trials in many states and has had record-setting jury verdicts in numerous jurisdictions. He obtained a verdict of $27 million for the widow and children of a St. Louis firefighter for a defective breathing apparatus which caused the firefighter's death. This verdict, which was increased to $40.4 million with pre and post judgment interest, was the highest jury verdict in Missouri in 2007 and one of the highest in the United States. The entire amount was collected after appeal. He has also obtained multiple precedent-setting judgments against railroads, including successfully requiring a railroad and the Federal Railroad Administration to modify rules on certification of railroad engineers; successfully obtaining a permanent injunction against the Union Pacific Railroad on behalf of all of its employees, which stopped the railroad's practice of interfering with employees' ability to pursue injury claims; and obtaining the first and only jury verdict in the United States in which a jury determined that a locomotive was not crashworthy, resulting in a jury verdict of $4.75 million, which was the highest verdict against that railroad by an injured employee in its history.
Throughout his career, he has also handled major precedent-setting class action and mass tort cases on behalf of individuals.
Jerry has been featured in numerous national publications, including the New York Times, Reuters, Bloomberg, USA Today, and the Wall Street Journal, for his and the firm’s success in pioneering claims of excessive fees in 401(K) plans and obtaining precedent-setting results involving claims of excessive fees against large employers, and for the reduction in fees his cases have caused throughout the 401(k) industry.
He and the firm have obtained settlements in these 401(k) excessive fee cases of more than $300 million for employees and retirees, in addition to significant improvements in their 401(k) plans; in total, this relief has been valued at more than $1.5 billion. He also was lead attorney for the firm in the first and only full trial of an excessive fee case in the country, resulting in a verdict of $36 million. In recent rankings of the most influential people in the 401(k) industry by 401kWire.com, Jerry has repeatedly ranked in the top 5.
According to a recent article published in Reuters, the CEO of Brightscope, an independent company which evaluates 401(k) plans, stated, speaking of Mr. Schlichter’s national impact on 401(k) plan fees, that “[h]is impact has been humongous." The New York Times has referred to Jerry as “a Lone Ranger of the 401(k)’s,” and he has been referred to by Investment News as “public enemy no. 1 for 401(k) profiteers” and by Chief Investment Officer as “the industry’s most feared attorney.” In describing the effect of his work on behalf of employees in 401(k) plans, the Wall Street Journal referred to it as being “Schlicterized”.
In 2014 and 2015, Mr. Schlichter’s firm obtained the two largest 401(k) excessive fee settlements in history. The first was a settlement for $62 million against Lockheed Martin on behalf of Lockheed Martin employees, which included significant changes to the Lockheed Martin 401(k) plan. The second was a settlement for $57 million from Boeing, which likewise included significant non-monetary relief.
Also in 2015, Mr. Schlichter won a unanimous 9-0 decision in the U.S. Supreme Court in Tibble v. Edison, the first U.S. Supreme Court case to consider fees in 401(k) plans.
In an order in the case of Nolte v. Cigna Corporation in 2013, the U.S. District Court judge stated: “As the preeminent firm in 401(k) fee litigation, Schlichter, Bogard & Denton has achieved unparalleled results on behalf of its clients. Jerome Schlichter and Schlichter, Bogard & Denton’s work throughout this litigation stands as yet another example of the firm’s acting as a private attorney general, risking breathtaking amounts of time and money while overcoming many obstacles for the benefit of employees and retirees. . . . Mr. Schlichter and the Schlichter, Bogard & Denton firm’s actions have led to dramatic changes in the 401(k) industry, which have benefited employees and retirees throughout the country by bringing sweeping changes to fiduciary practices.”
The U.S. District Court in Tussey v. ABB similarly found of “special importance . . . the significant, national contribution” made by the team led by Mr. Schlichter, which has “educated plan administrators, the Department of Labor, the courts and retirement plan participants” about the fiduciary obligations of 401(k) plan administrators.
Another example of his work on behalf of individuals is his representation of a class of African-American employment applicants in the case of Mister v. Illinois Central Gulf Railroad, a case in which he obtained an extraordinary Seventh Circuit Court of Appeals decision in which the court stated: "One could not imagine a stronger case of discrimination short of an announcement of it." This resulted in a $10 million settlement. In the Mister case, the U.S. District Court judge described his work stating: "The Court is unaware of any comparable achievement of public good by a private lawyer in the face of such obstacles and enormous demand of resources and finances." The judge also stated: "This Court finds that Mr. Schlichter's experience, reputation, and ability are of the highest caliber."
Jerry handled the nationally-recognized Times Beach dioxin case in which he represented a group of people in the community of Times Beach, Missouri who were exposed to dioxin when their streets were sprayed with the chemical. He obtained a record setting $19 million settlement on behalf of the residents against a chemical company in that case.
Jerry handled a national employment discrimination class action case on behalf of all women employees of Rent-a-Center. In that case, he confronted for the first time in a national employment discrimination class action a "reverse auction" in which the defendant attempted to destroy the case by an inadequate settlement with others. Jerry successfully defeated this attempt and obtained a $47 million settlement for the class as well as a complete revamping of company policies. This is one of the largest class action settlements for women in the United States and the U.S. District Court judge stated: "In essence, it is an example of advocacy at its highest and noblest purpose, and Class Counsel accomplished a great public good." The judge further stated: "I have never seen an effort like that effort put forth by the plaintiffs' counsel' – it's beyond an extraordinary effort."
Jerry is a past national President of the Academy of Rail Labor Attorneys and is a member of the Million Dollar Advocates. He has authored articles in the field of personal injury litigation and has spoken at numerous seminars on trial techniques, mass torts, class actions, and complex litigation. He has taught trial techniques as an adjunct professor at Washington University School of Law.
Jerry has also been recognized for his involvement in community initiatives. He and his wife founded Mentor St. Louis, Inc., a not-for-profit organization which obtains adult mentors for disadvantaged elementary students in the St. Louis Public Schools, which has become the largest volunteer program in the St. Louis Public Schools and has been nationally recognized. He also successfully initiated and spearheaded the passage of a law, "The Missouri State Historic Tax Credit," which has been widely acknowledged for its role in revitalizing St. Louis and the State of Missouri, and which is the national model for legislation aimed at revitalizing older communities. He has also spearheaded and led the effort to pass the Missouri "Rebuilding Communities Act" designed to attract businesses to distressed communities and the "Neighborhood Preservation Act" to develop housing in distressed communities.
Jerry has received numerous awards, such as the Levee Stone Award and "What's Right with the Region Award" for his contributions to revitalization of the city of St. Louis and the state of Missouri.
In December 2013, Jerry was honored with the prestigious St. Louis Award, given to the person who has accomplished the most in the prior years for the development of St. Louis.
Jerry spearheaded the founding and development of another St. Louis not for profit, Arch Grants, which is a global competition for startup businesses in which winning entrepreneurs come to St. Louis, receive $50,000.00 and a broad package of support services including business mentoring, discounts on office space, and free legal, accounting, and marketing services. Arch Grants has provided grants of $50,000.00 to 114 startups since its founding in 2012, and has been the subject of numerous national articles describing its building of entrepreneurial businesses in St. Louis.
Education: University of Illinois, B.S., Business Administration, 1969, (in 3 years) with honors; James Scholar. University of California at Los Angeles, J.D. 1972; Associate Editor, UCLA Law Review.
Admitted: California (1972); Illinois (1973); Missouri (1982).
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