SAN DIEGO – Punitive damages aren't allowed under the EmployeeRetirement Income Security Act, so whoever came up with “401(k) FeeLawsuits: The Next Tobacco?” as the title for a Sunday afternoonworkshop at the 2015 NAPA Summit was aiming for titillation.

On the other hand, the 10 largest class-action settlements inclaims brought under ERISA topped $1.3 billionin 2014, almost 10 times the sum of the biggest settlements fromthe previous year.

In two of the biggest, a $480 million settlement was reached inAugust in a class-action filed by retired UAW workers, while a $415million settlement was announced the following month in a caseagainst ING Life Insurance & Annuity Co.

This year may not match 2014 but it won't be without at least afew more headline-generating settlements. We've already seenLockheed Martin Corp.'s agreement last month to pay $62 million to end a lawsuit over claimsit shortchanged 120,000 workers and retirees who participated inits pension plans.

The plaintiffs in that case accused the defense contractor ofsubjecting them to excessive management fees and leaving those whoinvested in the company stock fund with returns that were worsethan if they'd bought shares on the open market.

Still, I agree when ERISA lawyer Bradford Campbell suggests thatthe workshop title is “perhaps a bit hyperbolic.” On the otherhand, that doesn't mean there haven't been and don't continue to besome pretty significant ERISA cases moving through courtdockets.

If you can afford him, Campbell's probably one of the betterattorneys to know if you've been hit with ERISA litigation or,better yet, wanting to do all you can to avoid becoming the targetof – as NAPA puts it – “a growing and better informed plaintiffs'bar.”

A member of the K Street staff of Drinker Biddle & Reath,Campbell headed the Employee Benefits Security Administrationduring the last couple of years of the George W. Bushadministration.

From where he now stands, we're in an ERISA litigation lull atthe moment, after a wave of cases, many of them brought by St. Louis homeboy Jerry Schlichter.

Looking ahead, it may be that the Tibble case before the U.S. Supreme Courtserves as a tipping point, potentially setting off a round oflawsuits based not on excessive fee claims but on whetherfiduciaries failed in their duty to monitor investment options in aplan menu.

Whatever happens, this lull won't last long, Campbell thinks.“There's a retrenching now … and the plaintiff's bar is decidingwhat next to do. I do think it's (the next wave is) coming. There'senough money there to keep them interested.”

That's only good news to black-hearted journalists and thelawyers who defend sponsors.

So, what's an advisor to do? How best to help sponsors avoid alegal battle that can be expensive even without the potential ofpunitive damages?

Campbell offers a few quick tips, none of which may be terriblyoriginal but which sponsors seem to overlook with dangerousregularity:

Review your plan fees. Are they equitablyallocated among participants? That includes recordkeeping costs. If10 percent of participants are paying 90 percent of the cost,there's a problem.

Disclosure, disclosure, disclosure. The404(a)(5) regulation of 2012 was designed to ensure everything isas clearly spelled out to participants as possible, includingrevenue-sharing deals. Failing to live up to the minimumrequirements behind 404(a)(5) is just asking for trouble.

The investment policy statement. There's noroom for debate on this point, Campbell says. The IPS cannot beambiguous in any way. It should spell out what the process was inchoosing and evaluating investment options. And every sponsor needsone, regardless of size.

Because it limits relief to “equitable remedies,” aiming to makeplans whole rather than opening them up to punitive damages, ERISAdoesn't present what Campbell calls a “tort lottery.”

That's the good news. But with so much still at stake, anyadvisor sitting in on a single hour-long workshop at a conferenceshould appreciate there's a lot more work ahead if they want toproperly protect their sponsors and participants alike.