Genworth 401(k) Plan Participants Petition Fourth Circuit for En Banc Review of Class Certification Decision

by Henry Fina

On March 24, the Plaintiffs in Trauernicht v. Genworth Financial Inc. filed a petition for en banc rehearing, which asks the full U.S. Court of Appeals for the Fourth Circuit to rehear a class certification appeal previously decided by a three-judge panel of the Court.  Following the petition, the Fourth Circuit ordered Genworth Financial Inc. to respond to the petition.

The case, brought on behalf of participants in the Genworth Financial Inc. Retirement and Savings Plan, alleges that Genworth breached its fiduciary duties under ERISA by selecting and retaining underperforming BlackRock target date funds as the plan’s default investment option. Plaintiffs argue that retaining the funds caused harm to participants’ retirement savings as those funds underperformed alternatives. The plan is one of the largest in the country, with 4,365 participants and $960 million in assets at the end of 2024.

After a federal district court granted class certification in August 2024, a Fourth Circuit panel reversed the decision in March 2025. The Plaintiffs’ petition for rehearing emphasizes that ERISA’s text expressly authorizes participants to sue on behalf of the plan as a whole and requires any recovery of losses to be returned to the plan, making cases such as this well-suited for class certification.

The petition has drawn support from several amicus parties, who have filed briefs as “friends of the court.” These parties include a group of employee benefits law professors, who filed an amicus brief arguing the panel’s ruling misinterpreted ERISA and conflicts with Supreme Court precedent. The professors warn that the panel’s approach, treating a plan-wide fiduciary breach as a collection of individual claims, would force workers into separate lawsuits over the same misconduct, which threatens to drive up litigation costs and produce inconsistent results.

Plaintiffs are represented by James C. Shah, James E. Miller, Laurie Rubinow, Kolin C. Tang, and Alec J. Berin of Miller Shah LLP and F. Peter Silva, II of Tycko & Zavareei LLP.

The case is Trauernicht et al. v. Genworth Financial Inc. et al., Case No. 24-1880, in the U.S. Court of Appeals for the Fourth Circuit.