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As employers begin 2026, a new wave of Employee Retirement Income Security Act (ERISA) litigation is emerging involving voluntary products that serves as an important reminder that accurate Form 5500 reporting, fiduciary best practices, and good governance procedures are important for all ERISA-governed plans. According to Jackson Lewis's recent article, several newly filed suits allege that employers and benefit consultants breached ERISA fiduciary duties and engaged in prohibited transactions related to voluntary insurance offerings—such as accident, critical illness, and hospital indemnity coverage—by failing to prudently monitor costs, including excessive consultant commissions. Plaintiffs argue that brokers should be treated as plan fiduciaries under ERISA. As is true for all ERISA litigation, there are ways to proactively mitigate risk.
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