ERISA Class Actions Picked up in 2009

January 12, 2010 ( – The nation’s economic downturn has prompted plaintiffs’ lawyers to increase the pace of filing class action lawsuits to recover 401(k) plan losses under the Employee Retirement Income Security Act (ERISA), a new analysis has found.

A news release from the Seyfarth Shaw LLP law firm about its latest workplace class action settlement study for 2009 said it saw the same dynamic of additional litigation action in the Fair Labor Standards Act (FLSA) arena with class actions seeking payment of back wages.

The Seyfarth Shaw study found also found that increased layoffs prompted more age discrimination class actions as well as those challenging employers’ compliance with laws requiring advance notice of mass layoffs. Concluded the report: “Even more (such) litigation is expected in 2010, as businesses re-tool their operations.”

Meanwhile, according to the study, the monetary value of the top ten private settlements of ERISA class actions worked out or paid in 2009 was $499.5 million – down from $17.7-billion the year before.

However the report indicated that the 2008 figure includes three large settlements of cases involving voluntary employees beneficiary association (VEBA) cases. That means 2009 ERISA class settlements were actually greater than the previous year, according to the report. 

The report also indicated that:

  • the monetary value of the top ten private plaintiff employment discrimination settlements entered into or paid in 2009 totaled $86.2 million. This represented a slight drop from the last two years. By comparison, the top ten settlements in 2008 totaled $118.36 million.
  • The monetary value of the top ten private wage and hour settlements entered into or paid in 2009 totaled $363.6 million, up significantly from the top ten settlements in 2008, which totaled $252.7 million.

“The lesson to draw from 2009 is that plaintiffs’ attorneys and government enforcement lawyers are apt to be equally, if not more, aggressive in 2010 in bringing class action and collective action litigation against employers,” the study said. “As class actions are a pervasive aspect of litigation in corporate America, defending and defeating this type of litigation is a top priority for management. Identifying, addressing, and remediating class action vulnerabilities, therefore, will have a place at the top of management’s priorities list for 2010.”

A copy of the report is available at or by e-mail at