One of the most important features of ERISA is who it protects—and after Cunningham, the pool of potential plaintiffs is wide.

Current employees are obvious candidates. But ERISA also gives legal standing to former employees, retirees, and anyone else who is or was a participant in the plan with a vested interest. You don’t need to still be employed by the company to file a claim. If your account was subject to questionable fees or limited investment choices while you were enrolled in the plan, you may still have a right to sue.

In the Cunningham case, former employees brought the lawsuit. This reinforces the idea that fiduciary responsibilities don’t end when a participant leaves the company. Employers need to consider the long tail of liability: actions today can trigger lawsuits years after an employee leaves.

Companies should ensure their fiduciary oversight is well-documented and consistently applied over time. If plan decisions disproportionately harm a group of participants—past or present—they may all be potential plaintiffs.