A federal court judge in Atlanta has dismissed a lawsuit by a participant in one of two 401(k) plans, alleging the plans run by Rollins Inc., Atlanta, and its subsidiary, Western Industries-North LLC, Parsippany, N.J., violated ERISA.
U.S. District Judge Eleanor Ross ruled against the participant Marcia G. Fleming, saying in a Nov. 23 opinion that Ms. Fleming failed to "exhaust the administrative remedy process available to her before filing suit."
Ms. Fleming, a Rollins plan participant, sued in December 2019, amending her complaint in May 2020. She was seeking class-action status for her allegations against both plans.
"Because of the commonality of fiduciaries, service providers and investments, Fleming may also represent the participants of the Western Plan," her original complaint said.
She contended, among other things, that the plans' fiduciaries "improperly favored the economic interests" of the plan's record keeper, Prudential Retirement, according to a court document. Prudential isn't a defendant.
Ms. Fleming also alleged the fiduciaries "imprudently" chose high-cost funds with poor-performance records and failed to "adequately diversify" the plan's investments to reduce the risk of large losses, according to the document in the case of Fleming vs. Rollins Inc. et al.
The Rollins 401(k) Savings Plan had assets of $792 million as of Dec. 31, 2019, and the Western Industries Retirement Savings Plan had assets $35 million as of Dec. 31, 2019, according to Form 5500s.