In an article on Wall Street Journal Marketplace, Professor Lisa McElroy explained how the U.S. Supreme Court's upcoming review of Fifth Third Bancorp v. Dudehoeffer, a case surrounding employer's liability for poorly managed 401(k) plans, could make it easier for employees to bring such claims. 

As it stands now the employee "must prove that the administrator knew the investment was a really, really bad risk," McElroy explained.  “They don’t get to take depositions or get documents from the company. And if their complaint isn’t strong enough from the get-go, their case is dismissed.” However, should the Supreme Court accept the lower court's ruling, the bar would be set much lower, making it much easier for employees to pursue such claims, McElroy suggested.