The Social Costs of Choice, Free Market Ideology and the Empirical Consequences of the 401(k) Plan Large Menu Defense

This article explores the recent “hidden-fee” litigation trend that has consumed the 401(k) world and how recent decisions by these courts will likely result in reduced wealth for workers. The author challenges the “large menu defense” espoused by the Third, Seventh and Eight Circuit Courts of Appeals as not fitting within the intent of ERISA’s “safe harbor.” In addition, the author questions the logic of these decisions by suggesting that courts are evaluating the employers’ legal responsibilities using free-market ideology rather than the fiduciary duties prescribed by ERISA and questions the belief that “large menu” pension benefit plans are wealth-maximizing.