Cases & Investigations

Excessive Fees Paid to Fidelity by Delta 401(k) Retirement Plan Participants and Participants of Other Retirement Plans


Step 1: Are you an employee or former employee (or a dependent of an employee or former employee) of Delta?

Step 2: Have you participated in the Delta Family-Care Savings Plan (the “Delta Plan”) or a similar retirement plan for which Fidelity provides recordkeeping services?

Step 3: Do you pay for Financial Engines’ investment advisory services through your retirement plan?

Step 4: Do you pay for Fidelity’s self-directed brokerage accounts, BrokerageLink?

Step 5: If you answered “yes” to the first four steps, fill out the form on this page. You may be able to participate in a class action lawsuit.

If you participated in the Delta Plan, paid for Financial Engines’ investment advisory services or Fidelity’s BrokerageLink, and are interested in discussing the class action, please contact Todd Collins at or (215) 875-3040 or Ellen Noteware at or (215) 875-3051.

About the case

On behalf of participants in the Delta Plan, Berger Montague has filed a class action lawsuit against Fidelity, a company that provides platform and recordkeeping services for the Delta Plan. The complaint alleges that Fidelity was involved in an illegal kickback scheme with Financial Engines which, for a fee, offers retirement advice to Delta Plan participants.

In order to be included as the investment advice service provider on Fidelity’s platform, Financial Engines agreed to pay Fidelity a significant percentage of the fees it collects from 401(k) plan participants, including Delta Plan participants. In order to meet Fidelity’s demand for a kickback, Financial Engines charges excessive fees.

Additionally, Fidelity offers another service that allows Delta Plan participants to invest in a wide range of mutual funds that are not included among the plan’s designated investment alternatives through Fidelity’s self-directed brokerage accounts, BrokerageLink. Fidelity is responsible for effecting all trades made through BrokerageLink, including the discretionary decision regarding which share class to acquire for the participant.

When Delta Plan participants invest through BrokerageLink and the mutual funds selected by the participants offer more than one share class, Fidelity does not always acquire the class of shares with the lowest expense ratio. Instead, Fidelity acquires share classes that have higher expense ratios and that will pay Fidelity significant amounts in revenue sharing payments, effectively using the plan’s assets for its own benefit and account.

The complaint alleges that Fidelity’s conduct violated the fiduciary duties and prohibited transaction rules imposed by the Employee Retirement Income Security Act of 1974 (“ERISA”).

What is ERISA?

ERISA is a federal law that sets standards for most retirement plans in private industry in order to protect individuals who are participants in those plans.

ERISA imposes fiduciary duties-the highest duties known to law-on the people who run retirement plans. It gives plan participants the right to sue where those fiduciaries fail to put the participants’ interests first.

Previous ERISA 401(k) settlements

Berger Montague has settled numerous ERISA 401(k) class action lawsuits:

  • Diebold v. Northern Trust Investments, N.A.: In August 2015, the U.S. District Court for the Northern District of Illinois approved class action settlements totaling $60 million in cases brought by Berger Montague and other attorneys against The Northern Trust Company and Northern Trust Investments, N.A. on behalf of 401(k) and pension plans that invested in Northern Trust’s collective trusts. Plaintiffs alleged that Northern Trust breached its fiduciary duty by keeping for itself an excessive amount of the revenue generated by the collective trusts through the practice of securities lending. (Securities lending involves lending securities owned by the collective trusts to short sellers and others, who provide collateral that is then invested, supposedly in the interest of the retirement plans that invest in the collective trusts).
  • In re: Eastman Kodak ERISA Litigation: In October 2016, the U.S. District Court for the Western District of New York approved a $9.7 million settlement on behalf of the participants and beneficiaries of the Eastman Kodak Employees’ Savings and Investment Plan and the Eastman Kodak Employee Stock Ownership Plan (the “Kodak Plans”). On behalf of plaintiffs and the participants of the Kodak Plans, Berger Montague charged that the Kodak Plans’ fiduciaries continued to invest in Kodak’s common stock, even though it was apparent that Kodak was an imprudent investment. The stock price collapsed, and Kodak eventually filed for bankruptcy.
  • Glass Dimensions v. State Street Bank & Trust Co.: In May 2014, the U.S. District Court for the District of Massachusetts approved a $10 million settlement on behalf of retirement plans that invested in a collective trust established by State Street Bank & Trust Co. under a master securities lending agreement. Berger Montague served as co-lead counsel in this class action case that involved more than 900 retirement plans invested in more than 250 collective investment funds. Plaintiffs alleged that State Street Bank & Co. breached their fiduciary duties and engaged in prohibited transactions under ERISA by charging excessive fees (50% of all net income derived) for the securities lending services the company provided.
  • Lequita Dennard v. Transamerica: In October 2016, the U.S. District Court for the Northern District of Iowa approved a $3.8 million settlement on behalf of current and former Transamerica Corp. employees who claimed the company did not live up to its fiduciary duty under ERISA with its 401(k) plan. Employees alleged that Transamerica breached its fiduciary duty under ERISA-which requires those that administer 401(k) plans to act in the best interest of the plan participants-when it offered investment options that benefited the company, charging employees excessive investment management and administrative fees.

Do I have to pay to consult with an attorney?

We are happy to talk with you about your potential claims free of charge. If we agree to represent you in a lawsuit, we will do so on a contingent basis, which means the attorneys advance all of the costs of the litigation, and the attorneys get paid only if we win a recovery on behalf of you and the other retirement plan participants.

Please contact us to discuss the details of your case. You may:

  1. Use the contact form on this page
  2. Email
  3. Call (800) 424-6690

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Lead Attorneys

Todd Collins Headshot

Todd S. Collins

Managing Shareholder
Ellen Noteware Headshot

Ellen T. Noteware


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