ERISA After Cunningham: Applying the New Pleading Bar and Assessing the DOL 401(k) Rule

R. Joseph Barton | Barton & Downes LLP

R. Joseph Barton is a partner at Barton & Downes LLP in Washington, D.C., where his practice focuses primarily on employee benefits and veterans/servicemember rights. With more than two decades of experience, he has handled a wide range of complex and class action employee benefits litigation matters involving ERISA fiduciary breaches and claims related to various types of benefit plans. Mr. Barton has represented clients in significant litigation involving defined benefit pension plans, 401(k) plans, employee stock ownership plans (ESOPs), profit-sharing plans, health plans, disability plans, severance plans, and life insurance plans. He is also a frequent speaker, author, and contributor to professional organizations focused on employee benefits and litigation.

• Education & Credentials

R. Joseph Barton’s legal practice is focused on complex employee benefits litigation, including ERISA claims involving fiduciary duties, retirement plans, health plans, and other employee benefit arrangements. He has extensive litigation experience in federal courts and has served as trial counsel in multiple ERISA matters, including class actions and complex fiduciary breach cases.

• Recognition & Leadership

Mr. Barton has received numerous professional recognitions, including as a Fellow of the American College of Employee Benefits Counsel (which requires a minimum of 20 years’ experience, nomination by two members, and approval by the Board that a nominee has made significant contributions to the advancement of the employee benefits field and is generally recognized by peers for expertise in the field and intellectual excellence), a Martindale-Hubbell AV Preeminent Rating, recognition as a Washington, D.C. Super Lawyer since 2013, a 10.0 rating from Avvo, and inclusion in Marquis’ Who’s Who in American Law. He has served in leadership positions at the American Bar Association’s Employee Benefits Committee and the American Association for Justice (AAJ).

• Professional Involvement

Mr. Barton is actively involved in legal organizations dedicated to employee benefits, employment rights, and litigation. Since January 1, 2025, he has been the Plaintiffs’ Chair of the Board of Editors for the ABA treatise Employee Benefits Law (3d ed.), published by BNA — the most senior Plaintiff-side Editor position. Between 2012 and 2024, he served as Plaintiffs’ Co-Chair of the Civil Procedure Subcommittee for the ABA Employee Benefits Committee as an author and editor for Chapter 12, Civil Practice & Procedure, of the treatise Employee Benefits Law. Between 2015 and 2024, he was a member of the Programming Committee for the ABA Employee Benefits Committee, responsible for planning the Committee’s Midwinter conference. For many years, he has served on the Publications Committee for the American Association for Justice, overseeing article selection and review for the organization’s magazine, Trial. He has also served as Co-Chair of the AAJ Class Action Litigation Group and Chair of the AAJ Employment Rights Section. Mr. Barton is a frequent speaker at conferences sponsored by organizations including the American Bar Association, American Association for Justice, American Conference Institute, Defined Contribution Institutional Investment Association, and National Employment Lawyers Association.

• Experience

Since 2001, Mr. Barton has litigated complex ERISA and employee benefits matters involving fiduciary breach claims, retirement plans, and other benefit arrangements. He has served as trial counsel in five ERISA cases, including two class actions and two complex fiduciary breach cases, as well as other employment cases. As lead trial counsel in Chesemore v. Alliance Holdings, Inc., he represented a class of Trachte employees in litigation involving ESOP transactions and obtained favorable trial decisions awarding more than $17 million plus prejudgment interest, affirmed by the Seventh Circuit. In Severstal Wheeling Inc. Ret. Comm. v. WPN Corporation, he served as lead trial counsel for pension plan fiduciaries and obtained a judgment exceeding $15 million, affirmed by the Second Circuit. He has also provided expert opinions on the scope of ERISA in international litigation, including a case before the Court of Commerce of Brussels, and continues to advise and advocate in complex employee benefits disputes.

Ian Ayres, Professor | Yale Law School

Ian Ayres is a lawyer and economist whose work sits at the influential intersection of law and economics. As the Oscar M. Ruebhausen Professor at Yale Law School — and a professor at both Yale’s School of Management and School of Public Health — they have built one of the most prolific and widely cited scholarly records of their generation, spanning antitrust, contracts, corporate finance, civil rights, and quantitative methods. Equally at home in the academy and the public square, Ayres has written and spoken for broad audiences as a columnist, commentator, author, and entrepreneur, translating rigorous empirical research into ideas that reach well beyond the law school classroom.

• Education & Credentials

Ayres earned a B.A. from Yale University in 1981, majoring in Russian studies and economics, followed by a J.D. from Yale Law School in 1986 and a Ph.D. in economics from the Massachusetts Institute of Technology in 1988. Following law school, they clerked for the Honorable James K. Logan of the U.S. Court of Appeals for the Tenth Circuit. Ayres teaches across an exceptionally broad curriculum, including antitrust, contracts, corporations, corporate finance, intellectual property, law and economics, property, torts and regulation, and quantitative methods.

• Recognition & Leadership

In 2006, Ayres was elected to the American Academy of Arts and Sciences. That same year, their book with Greg Klass, Insincere Promises: The Law of Misrepresented Intent, won the Scribes Award for the best work of legal scholarship published during the previous year. Ayres has been ranked among the most prolific and most-cited law professors of their generation, and The Chronicle of Higher Education has described them as a law-and-economics guru. From 2002 to 2009, they served as editor of the Journal of Law, Economics and Organization.

• Professional Involvement

Beyond Yale, Ayres has taught at the Harvard, Illinois, Northwestern, Stanford, and Virginia law schools, and has served as a research fellow of the American Bar Foundation and Columbia. They are a co-founder of stickK.com, a website that helps users commit to and achieve their goals. Ayres has also been a prominent public voice — writing as a columnist for Forbes, commenting on public radio’s Marketplace, and contributing to the New York Times’ Freakonomics Blog — with research featured on programs including Prime Time Live, Oprah, and Good Morning America, and in Time and Vogue. In pro bono service, Ayres helped convince an Illinois court to vacate a client’s death sentence in a post-conviction proceeding.

• Experience

Ayres is the author of thirteen books, including Retirement Guardrails: How Proactive Fiduciaries Can Improve Plan Outcomes (with Quinn Curtis, Cambridge University Press, 2023) and Weapon of Choice: Fighting Gun Violence While Respecting Gun Rights (with Fredrick Vars, Harvard University Press, 2020). Their scholarship has had a lasting influence on the field, with their two most-cited law review articles — Fair Driving: Gender and Race Discrimination in Retail Car Negotiations (104 Harvard Law Review 817, 1991) and Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules (99 Yale Law Journal 87, 1989, with Robert Gertner) — shaping debates in civil rights and contract theory respectively. Across teaching, scholarship, public commentary, and entrepreneurship, Ayres combines the tools of law and economics to address questions ranging from discrimination and gun violence to retirement security and behavioral commitment.

SESSION 1 – Applying Cunningham’s ERISA Pleading Standards, One Year Later | 1:00pm – 2:00pm

One year after Cunningham, this session traces how federal courts now decide which ERISA fiduciary-breach allegations survive dismissal, drawing practical defense and pleading lessons from recent fee, investment-selection, process, and class-action rulings shaping 2026 litigation.

BREAK | 2:00pm – 2:10pm

SESSION 2 – The Trouble with Tickets | 2:10pm – 3:10pm

This session critiques the DOL’s proposed 401(k) rule on alternative investments, arguing its diversification goal is sound but its safe harbor too permissive, then proposes percentage caps and participant-level monitoring to protect retirement savers from concentration and fee risk.