RICHMOND, Va. -- According to a recent Supreme Court ruling, employers may now be at risk of being sued by individual 401(k) participants. Justice John Paul Stevens ruled that ERISA "authorize[s] recovery for fiduciary breaches that impair the value of plan assets in a participant's individual account."

Since excessive 401(k) fees can certainly decrease the value of a participant's plan assets, this ruling may put many employers at risk of potential lawsuits. "Part of an employer's responsibility as a plan trustee is to know the total cost of the company's 401k program and whether or not such cost is reasonable under ERISA," states David B. Loeper, CEO of Financeware, Inc. and author of Stop the 401(k) Rip-off! "Plan trustees are at risk if they cannot document that they have evaluated the total costs participants bear and they have not sought competitive pricing to compare those costs to determine if they are reasonable. Prudent trustees would be wise to do this annually."

Many employers are not aware that they need to take these steps and many would have difficulty answering questions from their participants regarding the costs they are currently paying. Participants are even more in the dark as evidenced by a Government Accountability Office study and three pending bills in the House and Senate regarding fee disclosure.

An independent ERISA fiduciary, Wealthcare Capital Management, is offering protection to both employers and participants regarding this issue. Participants who are concerned that their 401(k) fees may be too high are being offered a free and confidential "401k Fee Protection Service", which uses a non-obtrusive approach to get employers to act, without triggering government involvement.