Over 100 lawsuits were filed in the last two years against employers sponsoring a retirement plan and their advisors, claiming that fees charged to them by their 401(k) plans were excessive. This litigation has resulted in hundreds of millions of dollars in settlements, significant reputational damage, and countless hours spent on defending litigation instead of servicing clients. Worse yet, we can expect more filings like these when the stock market declines. In addition to litigation over failures to make reasonable decisions for plans, the Department of Labor restored over $1.6 billion to benefit plans to correct each employer’s failure to follow its own internal procedures.
Fortunately, many of these types of claims are preventable. With a little time and preparation, advisors, employers, and other fiduciaries can take steps to minimize their risk and even eliminate it almost completely.
Every business and fiduciary should have a written guide—even if it’s just one page—that lists who the plan service providers are, what each one does, who makes decisions for the plan about investments and other plan features, and how often those get decisions reviewed. Courts have repeatedly dismissed claims where the company provided evidence that their plan has internal procedures about plan-related decisions and that they were followed. There are many free online resources to help employers conduct fiduciary training, vet their service providers, and assess conflicts of interest that might impair their obligation to serve their employees’ best interests. Don’t wait for litigation to jump into action.
One of the most often litigated claims against businesses and advisors is that they permitted the plan to incur unreasonably high costs. The regulations are clear that the plan does not need to engage the least expensive provider, and cost is not the only criterion to determine whether a provider’s or investment’s fees are “reasonable.” The employer or advisor should take stock of each service provider’s services, evaluate them, and document the review of them.
Service providers should disclose their conflicts of interest to the business so that they can make an informed decision that aligns with their savers’ best interests. Sadly, not all providers do. If the same company that serves as the plan’s recordkeeper is also providing the investment options available to employers or receiving other indirect compensation from the investments offered by the plan, there may be a conflict of interest. Conflicts can only be managed if they are disclosed.
It's astonishing how many claims could have been avoided had plan fiduciaries been more transparent in giving savers information. This could be as simple as giving them materials about joining the plan and how to invest through an email blast or mailing. Tell employees in “plain English” what they need to know about the investment options, eligibility requirements, employer match, and other basic plan features.
Complacency about proper retirement plan management is a significant business risk, but there are easy ways to manage it. Advisors and plan fiduciaries can use these lessons of litigation to help businesses ensure they are properly setting up their plans and keep them out of trouble.