Davis & Harman Survey Highlights Massive Gap Between Participant and Attorney Recoveries in ERISA Lawsuits
- Published Date: January 14, 2026
On January 14, 2026, Partners Kent Mason and Adam McMahon, and Senior Legislative Coordinator Taylor Howard published a survey covering 2025 settlements involving ERISA class action lawsuits against defined contribution retirement plan sponsors in underperformance and excessive fee cases.
In 2025, the terms of 27 settlements in underperformance and excessive fee cases were disclosed. The median of the average per-participant award was just $67.79 compared to an average plaintiffs’ attorneys’ fees of $1.59 million. These findings illustrate the enormous gap between plaintiffs’ lawyers’ fees and the participant recoveries in the increasingly common wave of “sue and settle” cases.
The unfortunate distinction of lowest per-participant award went to Dukes v. AmerisourceBergen, where the average per-participant award provided a recovery of $5.85 to class participants. Meanwhile attorneys were awarded $208,333.33 in fees.
The average per-participant award in all the 2025 settlements was $892.19, a figure that was dramatically skewed by a single outlier awarding over $16,000 to individual class members. If that outlier were removed, the average for 2025 would be $291.67.
As alarming as the statistics are, it should be noted that they only provide a snapshot of the very troubling phenomenon of ERISA litigation, as they do not reflect settlements in other types of ERISA cases, such as forfeiture, defined benefit, or welfare plan cases.
A link to the survey highlights, as well as supporting information and methodology can be found here.
