Season 4 Episode 1 “Forfeit ‘Sures?’”

Season 4 Episode 1 Forfeit “Sures?” 

Late last year a Pasadena, California, law firm launched a series of suits alleging that the use of forfeitures to offset employer contributions was a fiduciary breach. Nevin (Adams) and Fred (Reish) look at the issue(s) this raises. 

“If this is the law, then that would be news to Congress and the regulatory agencies, which have declared for decades that forfeitures can be used in this manner,” says a recent motion to dismiss a lawsuit alleging a fiduciary breach in offsetting employer contributions with forfeitures. 

The motion to dismiss speaks to charges made in a suit filed against Intuit, less than two weeks after filing an identical action against the Thermo Fisher Scientific Inc. 401(k) Retirement Plan. This suit, filed in the Northern District of California, acknowledges that “the Plan provides that forfeited nonvested accounts may be used to pay Plan administrative expenses or reduce future Company matching contributions.” Its language mirrors almost exactly three other such suits filed in either the Northern or Southern districts in California, including Clorox, Qualcomm and HP, all of which operated with plan documents that permitted—but did not require—that offset.   

Episode Resources

Two More Suits Say Forfeiture Reallocation Was a Fiduciary Breach | National Association of Plan Advisors (

Defendants Move to Dismiss Forfeiture Fiduciary Breach Suit | National Association of Plan Advisors ( 

DOL Successfully Sues Employer for Misuse of Forfeitures | National Association of Plan Advisors (

Intuit Files to Dismiss Forfeiture Fiduciary Breach Suit | National Association of Plan Advisors (

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