The pace of 401(k) litigation against plan sponsors shows no
signs of slowing down. In 2020 alone, more than 100 cases alleging breaches of
fiduciary duties, usually revolving around excessive fees and conflicts of
interest. Most of the cases have gone after larger plans such as Estee Lauder,
Costco and Trader Joe’s.
That doesn’t mean that small plan sponsors shouldn’t pay
attention to the legal landscape. Litigation typically filters down to plans of
all sizes and has led to changes across the entire retirement industry, not
just the targets of lawsuits.
“[Lawsuits] have set the wheels in motion to change the
retirement landscape forever,” says Brian Adcock, president of Adcock Financial
Group.
Plan sponsors don’t need to wait until they’re facing a
judge to implement changes to improve their plans. There are plenty of lessons
to glean from recent litigation.
Lesson #1: You need a process
Fees may get a lot of attention when it comes to 401(k) lawsuits,
but it’s the lack of a well-articulated process and failure to comply with it
that is most often the culprit, says Paul Secunda, partner with Walcheske &
Luzi, a Wisconsin-based plaintiff’s attorney.
“The most important thing is making sure that you have a
very specific process that you follow in selecting a service provider and
selecting investments,” he says. “We found out in these lawsuits that there was
a lot of sloppiness. A paper trail is essential.”
That means putting plans out for a request for proposal
every few years, which is especially important now due to a wave of
recordkeeper consolidation. There’s been a bidding war among record keepers to
lure plan sponsors from each other, so plans sponsors should be able to lower
plan costs. At the very least, says Secunda, plan sponsors should be asking for
a request for information, detailing plan costs and fund performance.
Surprisingly, this is one area where defense lawyers agree
with their colleagues on the other side.
“If you’re going to make a decision, you need to have a
basis for it with back up materials and advice from outside experts,” says
David Levine, principal and co-chair of the plan sponsor practice with Groom
Law Group.
Lesson #2: Your fees are probably too high
While 401(k) lawsuits revolve around several aspects of
401(k) plans, it’s fees that are the biggest target, with many employees
alleging that employers should do more to tamp down on how much they pay for
their retirement plans. Some of the biggest employers such as Costco and Estee
Lauder have been ensnared in these lawsuits.
Plaintiffs’ lawyers and advisors credit litigation for
helping to drive down fees over the years. In 2017, the average total fee paid
by a plan participant was 0.92%, down from 1.02% in 2009, according to
BrightScope and the Investment Company Institute. These fees are total plan
costs and include administrative, advice and other fees from Form 5500 filings,
in addition to asset-based investment management fees.
Even so, excessive fees haven’t disappeared completely.
Smaller plans are especially vulnerable, BrightScope and ICI found. Plans with
less than $1 million in assets have total fees of 1.44%.
Of course fees can be difficult to tease out, notes Eric
Doblyen of Employee Fiduciary, a 401(k) provider.
“The trendline is toward transparency,” Doblyen says. “But
we did a fee study last year and found that 75% of small businesses pay hidden
fees.”
Lesson #3: Your fiduciary duty doesn’t end at low fees
Plan sponsors know they have a fiduciary duty to ensure that
their plan puts the interest of participants before their own or that of the
plan provider. Yet many smaller plans fail this test by working with providers
that obscure fees or are opaque about conflicts of interest, Doblyen says.
“The biggest source of fiduciary liability is apathy,” says
Eric Doblyen
Not surprisingly, plan sponsors who work with financial
advisors often opt to work with an advisor who is a 3(38) fiduciary, an
investment manager who reviews investment options and takes day-to-day
responsibility for a plan’s investments. However, Doblyen points out, plan
sponsors can never entirely transfer their fiduciary responsibility. They still
have a duty to choose a solid 3(38) fiduciary.
That’s why Doblyen believes all retirement plan committees
should go through fiduciary training.
“Some of the 401(k) audits I’ve seen, [auditors] are asking
what kind of fiduciary training the committee has done,” he says.
Lesson #4: Have the right Investments for your workforce
Retirement plans don’t need to have the best performing
funds with star managers, but they do need to have a well-laid process for how
they’ll pick their investment lineup, how they’ll monitor them and drop them if
performance flounders.
“I see a lot of fiduciaries that are making sure they’re
reviewing service providers and investments on a regular basis,” says Secunda,
the attorney.
Using target date funds provides a safe harbor for plan
fiduciaries as the default option if plan participants don’t choose their own
investments. At the very least, plan should be using stable value funds rather
than money market funds as the default option so participant retirement savings
don’t languish in investments that don’t even keep up with inflation.
Choosing the right safe harbor investment is a first step.
Fiduciary must also make sure that their investments are low cost and
appropriately structured. an
“For me, a slam dunk for safe harbor is index funds,” says
Doblyen. “That’s your baseline.”
While making prudent decisions about the investment lineup
is important, there will be times when the plan sponsors get it wrong.
“ERISA does not require you to be Carnac the Magnificent and
see the future,” says Levine of the Groom Law Group.
The key is having a process to course correct.
The steady drumbeat of 401(k) litigation may be making plan
sponsors nervous. But taking the fiduciary duty seriously, finding the right
support and learning the lessons of past lawsuits should keep most plan
sponsors out of court.
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