Wal-Mart Slams Lawsuit Claiming Its 401(k) Fees Are Over the Top

By Staff Report

Jul. 18, 2008

Wal-Mart, hit with a class-action lawsuit that claims fees in its $9.9 billion 401(k) plan are excessive, has fired back. In a 35-page response to the original complaint, the company called the employees’ allegations little more than “mere speculation,” lacking any substance.

According to Wal-Mart’s filing, the suit’s “myopic focus on the fees charged by the plan’s investment options—without regard to the roles that these fees play in the overall costs of administering the plan—ignores the economics of participant directed individual account plans.”

Wal-Mart also said that “ERISA does not require plan fiduciaries to consider only ‘price’ in selecting investment options, much less to select the least expensive alternative available.”

The original complaint against Wal-Mart was filed in March, led by employee Jeremy Braden. Like many of the roughly dozen other lawsuits filed against large plan sponsors since late 2006, the suit against Wal-Mart accuses the company of violating its duty as a fiduciary by offering costly funds in its 401(k).

In its response, Wal-Mart said the suit led by Braden was “virtually identical” to the other suits.

The claim against Wal-Mart also states that the company should have disclosed to participants how it selected the funds in the 401(k) plan. In addition, the workers say Wal-Mart should have offered details on revenue-sharing arrangements in its plans, in which fees charged to workers are used to pay 401(k) providers for other services, including record keeping and plan administration.

Such disclosures, which are not required, are “demonstrably immaterial to any investment decision faced by participants,” Wal-Mart said, adding that Braden fails to suggest that he would have invested his 401(k) differently if any of the additional information was provided to participants.

Derek Loeser, an attorney at law firm Keller Rohrback who is representing Braden and other Wal-Mart workers, was unavailable for comment.

Filed by Mark Bruno of Financial Week, a sister publication of Workforce Management. To comment, e-mail

Schedule, engage, and pay your staff in one system with