On Friday, for the second week in a row, the Ninth Circuit reversed dismissal of a 401(k) plan excessive fee litigation challenging the offering of retail share classes of mutual funds instead of cheaper institutional share classes. As with its decision reviving the other 401(k) plan litigation (discussed in detail here), the Ninth Circuit declined to consider at the pleading stage defendants’ explanation that it offered the more expensive retail share classes because they paid revenue sharing to the plan’s recordkeeper, which helped offset plan recordkeeping and administrative fees. The case is Kong v. Trader Joe’s Co., No. 20-56415 (9th Cir. Apr. 15, 2022).
