February 28, 2021

Volume XI, Number 59


February 26, 2021

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BlackRock 401(k) Plan Class Action Headed for Trial

A class action alleging that BlackRock entities favored their own proprietary funds when selecting investment options for BlackRock’s 401(k) Plan is headed for trial after Judge Haywood S. Gilliam, Jr. denied both parties’ motions for summary judgment on January 12, 2021. Baird v. BlackRock Inst’l. Trust Co., No. 17-1892 (N.D. Cal. Jan. 12, 2021).

BlackRock sought summary judgment on Plaintiffs’ claims for breaches of fiduciary duty. The court denied the motion for several reasons. First, the court held that summary judgment was precluded because a genuine dispute of a material fact existed as to whether BlackRock complied with the Plan’s Investment Policy Statement. Next, the court held that Defendants’ “loss causation” arguments involved weighing the parties’ respective experts and their methodologies, “a task which is inappropriate at the summary judgment stage.”

The court then turned to whether certain of Plaintiffs’ prohibited transaction claims were time-barred because they were not brought within six years after “the date of the last action which constituted a part of the breach or violation.” 29 U.S.C. § 1113(1). BlackRock argued the only relevant transaction for claims based on including a fund in a plan line up is the date the fund is initially added. The court rejected the argument, reasoning that (1) the case law did not support such a broad proposition, and (2) Plaintiffs’ claims were not based solely on including the challenged funds, but also involved the fees paid to BlackRock affiliates.

Finally, the court found that summary judgment was inappropriate on the merits of Plaintiffs’ prohibited transaction claims, maintaining the prohibited transaction exemptions required examination of the reasonableness of compensation received by the Defendants, which required resolution of disputed issues of fact.

The court likewise denied Plaintiffs’ motion for partial summary judgment as to liability. Trial is scheduled to begin on March 1, 2021.

Jackson Lewis P.C. © 2020National Law Review, Volume XI, Number 14



About this Author


Stacey C.S. Cerrone is a Principal in the New Orleans, Louisiana, office of Jackson Lewis P.C. Her practice focuses on representing employers in workplace law matters, including preventive advice and counseling.


  • Employee Benefits

Admitted to Practice

  • 5th Circuit Court of Appeals, 1998
  • 6th Circuit Court of Appeals, 2014
  • Louisiana - E.D. La., 1999
  • Louisiana - M.D. La., 1998
  • Louisiana - W.D. La., 1998
  • Louisiana, 1998
René E. Thorne, Jackson Lewis, Employment Litigation, ERISA Attorney"
Office Managing Principal and Office Litigation Manager

René E. Thorne is Office Managing Principal of the New Orleans, Louisiana, office of Jackson Lewis P.C. Her practice covers the full range of employee benefit litigation matters, including representation of employers, plans, plan fiduciaries, and trustees.

In that regard, she has handled numerous ERISA class actions for clients such as Nortel Networks, Target, Krispy Kreme Doughnuts, Owens Healthcare, United Airlines ESOP Committee, Dunbar Armored, United Companies, Benefits Administration Corporation, and Beverly Enterprises. Ms. Thorne also has handled...


Howard Shapiro is a Principal in the New Orleans, Louisiana, office of Jackson Lewis P.C., and is Co-Leader of the firm’s ERISA Complex Litigation Group. Mr. Shapiro focuses his practice on the defense of large, sophisticated ERISA class actions.

Mr. Shapiro defends “bet-the-company” litigation where damages are potentially material. His cases involve the defense of Defined Benefit plans, 401(k) Plans, and 403(b) Plans. Mr. Shapiro also defends litigation involving health and welfare plan issues. His practice is nationwide, and throughout his career, Mr....