As Greenleaf points out, while the first round of retirement lawsuits was unsuccessful, attorneys soon successfully adjusted their strategies, to the tune of $6.2 billion in class action settlements by 2020. And while the initial suits were aimed at large employers, just like we’re seeing on the health care side, they soon began turning their sights on employers of all sizes. This is only the beginning.

Compliance maven Jennifer Berman of MZQ Consulting has been keeping an eye on these developments for years, and often cites the precedents set in the retirement industry. Berman urges benefits advisors and employers to pay close attention and ensure they’re being proactive.

She has offered a steady stream of guidance and commentary about the ongoing lawsuits, including last year’s Johnson & Johnson case, which provided a new, and key, escalation. "The Johnson & Johnson lawsuit was filed against the individual fiduciaries of the health plan. Each and every member of that HR team was named individually in their personal capacity. They're all being personally sued, in addition to the plan being sued. This trend is a really big deal,” Berman noted when the suit first appeared.

Although the judge in the class action suit has since dismissed the two breach of fiduciary claims made against J&J due to procedural issues, it’s important to note that the judge did not rule that J&J, as the plan fiduciary, breached (or didn’t breach) its fiduciary obligations to the plan. Whatever the eventual fallout of the current wave of cases, the trend is clear. This isn’t going away and its impacts will continue to spread. As a result, the pressure is mounting for both advisors and employers.

"Is the DOL really going to come after you?” Berman asks. “Statistically, it's very unlikely, although they do go after people. But plaintiff's lawyers are far more terrifying; the sea change is real and it's happening. You can innovate yourself out of existence if you don't take care of the basics."

Like Greenleaf, fellow retirement industry veteran Barbara Delaney has also been watching developments closely and recently decided to bring her expertise over to the health care side to provide some guidance and perspective. Delaney amicably left her role at HUB International to devote more time to a new nonprofit called Nautilus Health Institute, which will work with medical professionals, attorneys, health care and benefits professionals, and fiduciary experts to focus on health care plan fiduciary cases.

During a recent conversation, she told me about the evolution she and her peers have undergone over the past 25 years as they moved toward complete transparency and into the role of fiduciary advisors. While the process hasn’t always been easy, the results have been transformative.

“Many of us who have been doing this for as many years lost a significant amount of revenue during those transition years,” she says. “But we gained market share by doing the right thing.”

In her new role, Delaney will help benefits advisors and plan sponsors with the nitty gritty aspects of doing the right thing. “They have to remove the gag clauses. They have to get the disclosures. Setting up processes and procedures is going to drive change.”

And she’s not the only one making a move. A growing number of retirement industry veterans are moving into the health care and benefits space. But are they here to help or just more competition in an already crowded space?

“I wouldn't view us as a threat,” Delaney says. “I think of us as allies, because we don't want to do the day-to-day things that benefits advisors do; but we do want better outcomes and we want transparency. It’s time to start thinking about things differently and working on the path forward to a better system that we can live with.”

But as we all know, there’s more to all of this than just business. Delaney also has a very personal reason for wanting to make a difference: her 3-year-old grandson, who was diagnosed with an extremely rare chromosomal disease at the age of one.

Through her daughter’s insurer, the out-of-pocket cost for his heart medication came to $25,000. But knowing what she knows, Delaney did some digging and eventually found it for $1,800 at a drugstore in Brooklyn.

“That experience really upset me a lot. I’ve talked to many leaders in the employee benefits field about my frustrations, and one of them asked, “Do you really think you're going to change this?”

“I sat back and said, ‘In the early 2000s, we changed asset managers; we changed huge companies in the retirement space. We made them go open architecture; they became fully transparent. So yes, the right pressure from the consulting community and plan sponsors can make a difference.’”

But big changes require a shift in mindset. Or as Delaney puts it, “You have to want the right outcome for the future of the industry and the country, and not just what's best for your current renewal.”