Judges Reveal Little in 9th Cir. HP 401(k) Forfeiture Arguments

Judges tasked with issuing the Ninth Circuit’s first decision on 401(k) forfeiture usage had plenty of questions for the attorneys arguing Wednesday, but they gave few clues about how they were leaning.

Judge Anthony D. Johnstone’s comments appeared to favor both HP Inc. and the plaintiff 401(k) plan participants at various points. In one exchange, Johnstone emphasized that retirement plan fiduciaries have multiple duties under federal law, including the duty to defray the plan’s reasonable expenses—a factor that would appear to favor upholding HP’s conduct. He also appeared skeptical that workers would be harmed if their plan’s “windfall forfeitures” were ...