The US Department of Labor has taken the position that certain indemnification clauses are void against public policy under Section 410 of ERISA. This policy has been adopted by private plaintiff classes; as evident from a recent settlement, a policy that voids indemnity provisions can limit defense budgets, make settlements more likely and potentially create dangerous precedent for ESOPs.
ESOP Litigation Trends: Department of Labor Voids Fiduciary Indemnification Agreements to Reach Settlements
By McDermott Will & Emery, Allison Wilkerson, J. Christian Nemeth and McDermott Will & Emery on April 12, 2018
